The question at the heart of one of the biggest Supreme Court cases
this year is simple: What constitutional rights should corporations
have? To us, as well as many legal scholars, former justices and,
indeed, drafters of the Constitution, the answer is that their rights
should be quite limited — far less than those of people.
This Supreme Court, the John Roberts court, seems to be having
trouble with that. It has been on a campaign to increase corporations’
legal rights — based on the conviction of some conservative justices
that businesses are, at least legally, not much different than people.
Now the court is considering what should be a fairly narrow campaign
finance case, involving whether Citizens United, a nonprofit
corporation, had the right to air a slashing movie about Hillary Rodham
Clinton during the Democratic primary season. There is a real danger
that the case will expand corporations’ rights in ways that would
undermine the election system.
The legal doctrine underlying this debate is known as “corporate personhood.”
The courts have long treated corporations as persons in limited ways
for some legal purposes. They may own property and have limited rights
to free speech. They can sue and be sued. They have the right to enter
into contracts and advertise their products. But corporations cannot
and should not be allowed to vote, run for office or bear arms. Since
1907, Congress has banned them from contributing to federal political
campaigns — a ban the Supreme Court has repeatedly upheld.
In an exchange this month with Chief Justice Roberts, the solicitor
general, Elena Kagan, argued against expanding that narrowly defined
personhood. “Few of us are only our economic interests,” she said. “We
have beliefs. We have convictions.” Corporations, “engage the political
process in an entirely different way, and this is what makes them so
much more damaging,” she said.
Chief Justice Roberts disagreed: “A large corporation, just like an
individual, has many diverse interests.” Justice Antonin Scalia said
most corporations are “indistinguishable from the individual who owns
The Constitution mentions the rights of the people frequently but
does not cite corporations. Indeed, many of the founders were skeptical
of corporate influence.
John Marshall, the nation’s greatest chief justice, saw a
corporation as “an artificial being, invisible, intangible,” he wrote
in 1819. “Being the mere creature of law, it possesses only those
properties which the charter of its creation confers upon it, either
expressly, or as incidental to its very existence.”
That does not mean that corporations should have no rights. It is in
society’s interest that they are allowed to speak about their products
and policies and that they are able to go to court when another company
steals their patents. It makes sense that they can be sued, as a person
would be, when they pollute or violate labor laws.
The law also gives corporations special legal status: limited
liability, special rules for the accumulation of assets and the ability
to live forever. These rules put corporations in a privileged position
in producing profits and aggregating wealth. Their influence would be
overwhelming with the full array of rights that people have.
One of the main areas where corporations’ rights have long been
limited is politics. Polls suggest that Americans are worried about the
influence that corporations already have with elected officials. The
drive to give corporations more rights is coming from the court’s
conservative bloc — a curious position given their often-proclaimed
devotion to the text of the Constitution. The founders of this nation knew just what they were doing when they
drew a line between legally created economic entities and living,
breathing human beings. The court should stick to that line.
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