Sotomayor Issues Challenge to a Century of Corporate Law

Wall Street Journal ^ | 17 Sep 2009 | Jess Bravin

[Admiral_Zeon]

WASHINGTON -- In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law.

During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

[Califreak]

And her chair isn’t even warm yet!

[Auntie Dem]

Well, OK then. Are you willing to apply the same logic to legislation or lawsuits that attempt to imbue animals with human characteristics and rights?

I didn't think so.

[Lurking Libertarian]

And if so, does that extend to Unions as well?

U.S. Supreme Court precedent on the constitutional rights of corporations, unions and other "artificial persons" is a mess. It has been held that neither corporations nor unions have a Fifth Amendment privilege against self-incrimination, but that both are protected by the Seventh Amendment's gurantee of a right to trial by jury. Cases go both ways as to other constitutional rights.

[parsifal]

She is, and it is a brilliant insight. Corporations are “artificial persons” created by law. It used to be very hard to form a corporation and in most places needed a charter issued by the state legislature. It has changed over time. Without saying what is right or wrong here, it is good that she is questioning the roots of the problem.

I have long thought “commercial” speech needed some common sense limits that I do not think are always there.

parsy, who is not scared by this.

[SeeSharp]

This isn’t really about whether or not corporations can make statements. It is about whether or not corporations can make campaign contributions.

[bamahead]

Of course I guess it doesn’t matter that these corporations are made up of individual people...who want to express their political opinions.

It matters not. Only George Soros funded professional minorty victimhood status poltical action committees are afforded those kind of rights. Anyone else who wants to speak out is just racist.

[dinoparty]

Huh? I don’t understand your point.

[Constitutionalist Conservative]

can we really claim that the framers envisioned that corporations would be protected by the first amendment?

They wouldn't envision this, simply because they wouldn't have imagined that campaign contributions would one day be deemed political speech. Back then, "political speech" involved actual words, uttered or written, on topics of political import.

[CondorFlight]

I’m willing to deny corporations such rights, provided that unions are also denied such rights (and hence end all their political activity).

[Psycho_Bunny]

I agree.

[Carley]

Go tell it to John McCain.

The traitor!!!

[Carry_Okie]

U.S. Supreme Court precedent on the constitutional rights of corporations, unions and other "artificial persons" is a mess.

The source of which is "selective incorporation."

[hoosier hick]

A couple of things come to mind:

1. Roe v. Wade cannot be reconsidered because it is established precedent, and the SC does not reconsider without new legal issues according to supporters.

2. A nod to the Republicans that voted for her insisting “she is NOT a radical.”

hh

[wbarmy]

If the idea of a corporation as such is not an individual, does it then not have to pay income tax. I think the original idea of corporations, in the US, was to give the government something to make laws against. Without the corporation, what happens to stock schemes and such. The individuals who receive earnings would no longer be hit with double taxation.

[VictoryGal]

> And if so, does that extend to Unions as well?

I’d be all for her decision if that was the case! This could be a good thing.

[Aroostook25]

I must say that what she says makes some sense. I’m ready to be flamed, but if we are going to be consistent originalsts, can we really claim that the framers envisioned that corporations would be protected by the first amendment? That said, all of us probably need to read those 19th century decisions before passing judgment.

I agree. We should put more thought into whether "corporations" should be regarded as having all the "rights" -- and all the restrictions -- of a "person".

Sotomayer should also be wary that what she wants to change for capitalist corporations (businesses, etc.) should apply to socialist corporations (nonprofits, etc.). Unions such as the NEA would thus be treated as one person -- with all the rights and restraints applicable to one individual person.

[dinoparty]

I don’t disagree with anything you say, but I think you miss my point. Consider: in-house corporate lawyers have the job of protecting the “corporation”, not officers, employees, directors or even shareholders. They are charged with protecting the entity called the “corporation”. The “corporation” is in fact distinct from its employees/officers/directors/shareholders. It goes beyond the limitation of liability aspect. Nothing prevents the members from speaking in their own names, even as a collective. But the corporation ITSELF is nothing but a state-cretaed entity, not a group of people. I think its clear that the framers envisioned “churches”, as a collection of people, as having rights. I don’t think its as clear in the case of state-created “corporations” ... and I think this is the only relevant question. The practicality or policy aspects should not be relevant to Constitutional interpretation.

[TChris]

I’m ready to be flamed, but if we are going to be consistent originalsts, can we really claim that the framers envisioned that corporations would be protected by the first amendment?

Yet corporations do not, indeed cannot, speak. But human individuals who operate the corporation, and are protected by the 1st Amendment, can.

Are corporate stockholders and managers to be denied their 1st Amendment rights due to their association with a corporation?

Leftists attack eeeeevil corporations as though they are living, breathing creatures. Yet their operations are guided and controlled by people. Those same people make the decision to express their political opinions, using corporate resources (which they own) and the corporate name (which they own) and they should be prohibited from doing so?

This seems to me to be a thinly-veiled political muzzle on stockholders and corporate managers at the same time labor unions are being granted vast blocks of power, wealth and influence by this administration.

[Marty62]

Excuse me it was hitler that did away with inheritance. When a “RICH’ family patriarch that died, his estate was taken over by the Reich. The heirs were allowed to still run the business,farm etc, and were paid a salary. IF they ran it well their salary increased each year. They would finally be able to claim their inherritance after 5 years, IF the state deemed them worthy.

[DrDavid]

Any restrictions she wants to place on corporations should also apply to labor unions.