"What The Founding Fathers Really Thought About Corporations"...

[BlooInBloo]

Interesting Q/A with an actual scholar. Here's a sample, more at the linky.

http://blogs.hbr.org/fox/2010/04/what-the-founding-fathers-real.html

"A couple months ago the Supreme Court ruled that restricting corporate political spending amounted to restricting free speech. In this view, corporations are pretty much equivalent to people. Would that have seemed reasonable to the Founding Fathers?

In a word, no.

I read this opinion carefully — I'm trained as a historian, not a lawyer. Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It's lovely prose, but as a matter of history the majority is simply wrong.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

So even as this generation of Americans became comfortable with the idea of using the corporate form as a way to set priorities and mobilize capital, they did their best to make sure that those institutions were subordinate to elected officials and representative government. They saw corporations as corrupting influences on both the economy at large and on government — that's why they described the East India Company as imperium in imperio, a sort of "state within a state." This wasn't an outcome they were looking to replicate."

[ThomWV]

1. Pleased to be the first K&R for this

[Warpy]

2. Off to the greatest

This needs to be bid up.

There was a reason for corporate "personhood" that has been understood for a very long time.

This renegade court of extreme right radicals has stretched that meaning far beyond what it was ever supposed to be and the more people who know that, the better.

In other news, money is property. It is not to be confused with human speech.

[joeybee12]

3. KNR...let this remind us of those five activist judges who don't understand the Constitution...

...or what is known as legal precedence.

[onenote]

20. five justices got CU wrong. But all nine justices agree the first amendment

applies to speech by corporations. The issue is that the majority ignored precedent in finding that all speech and speakers have to be treated the same, when that clearly is not the case.

Here is what Justice Stevens said about this issue in his dissent:
"We have long since held that corporations are covered by the First Amendment" and "...speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation.... Of course not, but no one suggests the contrary."

[elleng]

33. Thanks for this, 'note.

Its important and useful, especially here, for people to understand Supremes' decisions; they're seldom simple, and the justices are never simple-minded.

[kenfrequed]

34. And...

Perhaps we should actually include complete textually citations. Ellipses can be the graveyard of meaning.

[onenote]

35. here you go

From page 41 of Stevens' dissent:

In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers, see Randall v. Sorrell , 548 U. S. 230, 280 (2006) ( Stevens , J., dissenting), whose political universe differed profoundly from that of today. We have long since held that corporations are covered by the First Amendment , and many legal scholars have long since rejected the concession theory of the corporation. But “historical context is usually relevant,” ibid. (internal quotation marks omitted), and in light of the Court’s effort to cast itself as guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today’s outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.

and from page 54


The majority grasps a quotational straw from Bellotti , that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. Ante , at 30–31. Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny, the restrictions on those expenditures were justified by a compelling state interest. See McConnell , 540 U. S., at 205; Austin , 494 U. S., at 658, 660. We acknowledged in Bellotti that numerous “interests of the highest importance” can justify campaign finance regulation. 435 U. S., at 788–789. But we found no evidence that these interests were served by the Massachusetts law. Id. , at 789. We left open the possibility that our decision might have been different if there had been “record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests.” Ibid.

Here's a link to Stevens' opinion:http://www.law.cornell.edu/supct/pdf/08-205P.ZX

[kenfrequed]

36. This is good deal more nuanced

I have seen many questionable posts that delivered the quote mined snatch of Stephens and I appreciate you putting more of this section of his dissent on the board.

[onenote]

38. yes, the whole issue is more nuanced than it has been portrayed

The case did not turn on a majority finding for the first time that "corporations are persons". And correcting the decision -- which I believe was wrongly decided as a matter of law -- does not require stripping corporations of their free speech or other Constitutional rights. The decision turned on issues of whether and when the First Amendment allows lawmakers to draw distinctions between speakers in regulating speech. Stevens rejects an absolutist view of the First Amendment as being inconsistent with decades of jurisprudence -- and he is right. But, as his dissent reveals, you can come to the conclusion that Congress can properly distinguish between corporate persons and natural persons when it comes to political speech without having to conclude that corporations should have no rights under the Constitution at all.

[kenfrequed]

37. there

I have seen many questionable posts that delivered the quote mined snatch of Stephens and I appreciate you putting more of this section of his dissent on the board.

[safeinOhio]

4. What they said

Merchants have no country. The mere spot they stand on does not constitute so strong an attachment as that from which they draw their gains.
Thomas Jefferson

[Mnemosyne]

14. Excellent quote, safe. Allegiance = $$$$. Thanks Bloo! KnR n/t

:hi:

[BrklynLiberal]

5. k n r

[The_Commonist]

6. Very interesting...

That's pretty much the way I've always understood it.

[Auggie]

7. A shame this couldn't have been explicitly defined in the Constitution

[BlooInBloo]

8. Yah, I wish they could have thought of every possible future development too. Dumbasses.

[Auggie]

24. Not what I was implying

[Ozymanithrax]

9. Corporations are better than we are...there is no limit to their free speech. We are limited by law

to a maximum amount of free speech that we can contribute.

[onenote]

18. I don't think that's right

I'm not defending the CU decision,but I think its incorrect to say that there are no limits on corporate political speech or that individuals are subject to legal limits not applicable to corporations.

Before CU, individuals could make donations directly to political candidates subject to legal limits on the amount of such contributions. Corporations and unions could not make such direct contributions at all. That law was not at issue in CU and remains in effect.

Before CU, individuals could make "independent" expenditures on behalf of a particular candidate without limit, provided such expenditures were in fact independent (i.e., not coordinated with the candidate). Corporations and unions were barred from making such expenditures during certain periods and via certain media. CU reversed this restriction, opening the door for corporations and unions to make independent expenditures pursuant on the same terms as individuals.

From a legal standpoint, therefore, I think its wrong to say that corporations have "no limit" on their speech. However, from a practical standpoint, the problem is that corporations have the resources to drown out individual speech (and the incentives to do so).

[liberation]

21. "I'm not defending the CU decision".... and yet there you go writing a message doing just that.

I don't really agree or disagree with what you wrote, it is just a bit annoying when someone writes "I am not so and so" and they proceed to do "so and so." It is a bit intellectually dishonest IMHO.

[onenote]

22. where did i defend the CU decision. really. where?

You want to back up your crap. The only one being dishonest is you.

I pointed out what the decision actually did as a legal matter. If I'm wrong, please explain.
And I pointed out what the problem with the decision is -- it ignores the fact that there is a difference between corporate speech and individual speech because corporations have the ability and incentive to distort the political process.

That's not a defense of the CU decision except in the mind of someone who doesn't actually understand the decision - a description that apparently fits you.

Let me make it clear so you aren't confused anymore. CU was a bad decision, inconsistent with precedent, reaching a result out of step with decades of precedent. It opens the door for abuse of the political process and efforts to reverse its effects should be undertaken in as many ways as possible.

However, its not accurate to say that it gave corporations broader legal speech rights than those accorded to individuals. What it did that was wrong was to depart from well settled precedent establishing that the First Amendment allows the government, where there is rational governmental interest served, to draw content neutral distinctions between speakers.

As Stevens' dissent cogently and correctly makes clear, the decision wasn't about whether corporations should have first amendment rights -- they do and no one on the court disputes that point. Its whether Congress can regulate the speech of corporations differently than it regulates the speech of individuals. Precedent and the record in this case clearly indicates that Congress can do so under the First Amement. Five Justices chose to ignore that precedent to reach the result that fit with their partisan political leanings.

[msongs]

10. corporations can start paying taxes at individual tax rates nt

[BlooInBloo]

11. Wouldn't that be something? lol!

[mrdmk]

12. About personhood and corporations, the following says it all:

(from the op's link)

What changed in the interim?

Well, we have a Civil War, and to prevent former Confederate states from infringing on the rights of freed slaves, the 14th Amendment extends "equal protection" to all American citizens. Section 1 specifies that this applies to all "persons" and in an 1886 Supreme Court case involving a railroad, the court's reporter — a former railroad president — writes a note saying that the justices agreed that a corporation qualified as a person. This isn't in the opinion itself, and some legal historians think it's a moot issue, but Justices William Douglas and Hugo Black later cite it as a momentous event. Either way, what's clear is that in the late 19th century, far more equal protection cases were heard by the Supreme Court where corporations were plaintiffs than freedmen. The Court — not the legislatures or the Congress — allowed the personhood distinction to slip away.


"Some legal historians think it's a moot issue", is going to come back and bite this country in the ass...

[Odin2005]

13. K&R

[sui generis]

15. not just corporations as we understand the term on the street

but the incorporation of any group of individuals or other "corporated" entities, so long as they have a legal basis for defining the terms of their incorporation. I suppose that includes the Southern Babtist Administration, the Catholic church, BSA, and the American Family Association.

It's much worse than just allowing that "merchant" organizations have equal voice.

[DeSwiss]

16. K&R

"I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country. Today, instead, the aristocracy of the corporation has grown to full maturity, wielding power over the state and its laws in the service of corporate aims.” ~ Thomas Jefferson (Thirty years after drafting the US Declaration of Independence warning of the dangers posed by the corporation)

[BobbyBoring]

17. I wish

All these tea party types were trained as historians! If we are to continue with this great experiment called America, we need to share history, the REAL history with our fellow travelers. All we need to do is look at the history of Rome to see where we are now.

[Dyedinthewoolliberal]

19. Welcome to DU!

:) :toast: :party:

[Fire1]

23. One can also look to Dr. John Locke's "Two Treatises of

Government," written in 1690, in which Locke criticizes perpetual corporate sovereignty.

[defendandprotect]

25. Of course the Founders feared Capital and its power which threatens democracy . . .

and of course, the Revolution was a fight back against the elite corporate power --

Elites are anti-democracy -- Royalty simply morphed into capitalism/corporatism then --

and it is the same thing now.

The right wing "Supremes" are giving us trash --

just as right wing corruptors have always given us trash -- including war and torture!

For some reason I never got around to reading the actual opinions in this case --

would be very interested in reading the dissenting opinions.

Meanwhile, it's time to understand that corporatism is fascism - and that we have to

fight back against it -- just as the Founders did.

And, this time it would be wise to do it without violence --

[dflprincess]

26. Gee, and I thought all those conservatives were "strict constructionists"

who think what the Founders' intended is the only way to interpret the Constitution.

Apparently they really didn't mean what they said about corporations.

[pleah]

27. K & R ! ! ! ! !

[Hannah Bell]

28. k&r

[Deep13]

29. marking for future reference nt

[MissMarple]

30. Thom Hartmann was talking about this last week.

He said quite a bit about the East India Tea Company. It was very interesting regarding multi national corporations, tax exemptions, destroying small local business, monopoly markets, lot's of stuff. The guys who wrote the Constitution were quite familiar with all of that, just like they had personal experience with state sanctioned religion. They didn't support either one.

[Uncle Joe]

31. Kicked and recommended.

Thanks for the thread, BlooInBloo.

[elleng]

32. They KNEW, and were not inhibited by 24/7, +.