The NYT on the Rights of Corporations

With the Roberts Court set to overturn the Tillman Act of 1907 and expand the political rights of corporations, the editorial board of the New York Times has sounded the alarm warning that "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 them."

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.

This is really a battle for the soul of this nation. Corporate power grew in the late 19th century and was only checked with great effort during the Progressive and New Deal eras. The Reagan-Bush years undid many of the constraints placed on corporations ushering in a second Gilded Age that saw a widening social inequality as a result.  If you are interested in the history of corporate personhood, I recommend this 15 page essay from the Women's International League for Peace Freedom.

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Senator Franken on Judicial Activism

I mentioned this earlier but Senator Franken's statement yesterday at close of the Judiciary Committee's vote on the confirmation of Judge Sonia Sotomayor is such a thing of a beauty that it deserves its own post. Enjoy every delicious word.

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New thread on Sotomayor confirmation hearings

Judge Sonia Sotomayor's confirmation hearings ended today. I hardly watched any of it on tv, but I got the highlights from David Waldman's liveblogging at Congress Matters: Wednesday morning session, Wednesday afternoon session, Thursday morning session, and Thursday afternoon session.

On Wednesday Senator Chuck Grassley had a contentious exchange with Judge Sotomayor regarding a 1972 case on same-sex marriage. Tom Beaumont posted the transcript at the Des Moines Register site. Sotomayor read the case last night and answered more questions from Grassley about it today. I posted an excerpt from the transcript after the jump.

According to MSNBC reporter Norah O'Donnell, Grassley told her today that his constituents are "pretty unanimous against her," referring to Sotomayor. On what basis can he make that claim? I don't doubt that wingnuts have been working his phone lines, but I hope he doesn't expect anyone to believe that Iowans overwhelmingly oppose the confirmation of this extremely intelligent and qualified judge.

Questioning of Sotomayor concluded this morning, and outside witnesses testified this afternoon. As expected, Republicans brought in New Haven firefighter Frank Ricci.

Share any thoughts about the confirmation process in this thread. How many Republicans on the Senate Judiciary Committee will vote to confirm Sotomayor?

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Sotomayor confirmation hearings thread

So, who watched Judge Sonia Sotomayor's confirmation hearings today?

In case you missed it, Oliver Willis posted the complete transcript of Sotomayor's opening statement.

Talking Points Memo posted excerpts from all the senators' opening statements. Chuck Grassley (R, IA) gave her quite the lecture about "judicial restraint" as opposed to "President Obama's 'empathy' standard." I don't recall any of the Senate Republicans being concerned when Judge Sam Alito acknowledged during his confirmation hearings that he thinks about his own family's experiences when considering immigration or discrimination cases.

Like many of the Republicans on the Senate Judiciary Committee, Grassley referenced the infamous "wise Latina" remark. I can't help but notice that Judge Sotomayor's critics quote almost exclusively from her speeches rather than from the more than 3,000 rulings she has written or joined. None of them acknowledge the real picture of her record in nearly 100 race-related cases.

As for Grassley's concerns about "judicial restraint,"Big Tent Democrat (a constitutional lawyer) shows in this post that the Ricci decision

is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.

On the contrary, the five conservative Supreme Court judges who overturned the lower court ruling in Ricciwere engaging in judicial activism.

Senator Arlen Specter showed up several hours late now that he's a low-ranking Democrat instead of the ranking Republican on the committee. He then complained that the Supreme Court is not hearing enough cases. Mr. desmoinesdem is much more of a SCOTUS-watcher than I am, and he says it's reasonable to suggest that the court could take on more cases, but it's ridiculous to hold up the Burger court as the standard (which Specter does). According to Mr. desmoinesdem, the Burger court was practically breaking down near the end because of the crushing caseload, which is why Rehnquist scaled things back when he became chief justice.

This thread is for any thoughts about Sotomayor's confirmation or highlights from today's hearings.

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Chuck Todd on Conservative Judicial Activism

Watch it:

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