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Posted on 07/02/2014 12:16:41 PM PDT by SeekAndFind
The team here has had plenty of great coverage since the Hobby Lobby decision came down, but there are still elements of not only the court case, but the highly vocal opposition to it which leave me puzzled. There has been plenty of analysis regarding the religious freedom aspect of the case, particularly from Ed, and that is certainly an important facet of the discussion. But I find myself even more perplexed by the arguments I’ve been seeing regarding the nature of personhood vis-à-vis corporations and how they shouldn’t be eligible for the various assurances found in the bill of rights.
One sterling example of this curious battle cry may be found in a piece from Rick Ungar at Forbes, under a title which includes the 24 Point, breathless phrase, Founding Fathers Spinning in their Graves.
However, no matter how the 5-4 majority of Supreme Court Justices wish to parse it, the Court has, this very day, destroyed the true nature of the corporate entity—a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer in the Secretary of State’s office in each of our 50 states.
If you doubt that this is the reality of what a corporation was intended to be versus how today’s Supreme Court decision—coupled with their Citizens United ruling — has “morphed” the nature of an American corporation, I strongly suggest you take a look at the constraints on corporations in the time of the Founders of this nation and how the Founders themselves felt about the corporate entity.
It was the “Founding Fathers” part of the article which really caught my attention, as I had no idea that G. Washington and his various associates were so bullish on business. But if you go on to read the editorial, the author proceeds to cite numerous instances where Queen Elizabeth I and her various family successors stomped on the rights of business. (Wait… didn’t we actually fight a war to abandon those crown wearing despots?) Then, after ten paragraphs of talking about the attitude of the English Monarchy toward corporations interspersed with seeming non-sequiturs mentioning the Founding Fathers, in a failed attempt to conflate the royals with America’s actual founders, he offers this:
While we know that the Founders had contempt for these corporate entities and the corruption they had produced in England’s Parliament, it appears to have never occurred to them to directly address corporations when they wrote the Constitution.
Well, okay then.
But to my original point, when did we see people – especially those in the media – blandly accepting and asserting that corporations aren’t people? Ungar himself puts forward the claim that corporations are, “a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer…”
Is a piece of paper capable of conducting interviews and hiring workers? Can it invent and design new things, hammer out a way to manufacture them and appeal to the mass market to buy them? Can it wrestle with the tough decisions about benefits for employees or how and when those workers will no longer have jobs if the business suffers? No, it can’t. All of those things are the actions of actual human beings… specifically the ones who start or run the business in question. And those people all have values and opinions of their own.
In the era of my father and my grandfather, businesses owned by a single person, a few partners or multiple generations of families were even more prevalent than now. And even today nearly a third of all businesses with a value of more than $1M are owned in the majority by similar small groups. And those businesses most certainly reflected the values of those people who created and operated them. Just like today, those people all enjoyed the full slate of rights enjoyed by other citizens.
So why does it strike so many people as beyond the realm of credibility that these corporate owners would have rights, including freedoms of religion, speech and all the rest? It’s possible, I suppose, that some of us have developed such an inherent mentality of entitlement that we assume that we are owed a job, and once gaining employment, that we should be able to dictate how the “faceless piece of paper in the drawer” treats us without concern for the sensibilities of those who filed the paper originally.
But that really doesn’t make sense. It’s yet another example why these various and sundry federal mandates, handed down from on high to the segment of the nation who didn’t build that simply fly in the face of what we all expect as our hope for and share of the American dream. A corporation may be a piece of paper, but it’s only a de facto invitation to business leaders to pay taxes. And the business leaders in that equation are most certainly people.
Yes....
Are unions?
More of this nonsense! Neither Citizens United nor Sibelius v. Hobby Lobby turned on the notion of corporations as juridical persons. They are both based on the principle that the owners of a corporation do not give up their political and religious rights simply by dint of having gone into business and filed incorporation papers.
It is the owners’ rights that are vindicated by both decisions, not the rights of the corporation as a juridical person.
Now let’s have a suit by a publicly-traded corporation which happens to have a majority of its equity owned by adherents of religions that object to abortion (or contraception in-toto) to extend the same right of religious freedom to its owners. (Of course at the next shareholder meeting they could vote to cover either if a majority share no longer objects.)
A corporation is a legal construct, to limit the liability that may be directed at any one participating person in a suit for monetary damages. But corporations, at their essence, are directed by real human beings, and the decisions are by living persons. So any test of the “personhood” of a corporation has to recognize that the mere document creating the legal construct cannot, does not, exercise any degree of will, but people do.
Exercise of will = person.
If I freely associate my self with a group of people that interacts with the government and provides members to be part of the government, does that group (AKA, a politicla party) have free speech rights?
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So... A Company is a Company and not a person, its owner is irrelevant.
Unless the Owner is a Black, or Women, or Minority, then the Government recognizes the Owner first and they get special treatment under the “law” for that company.
But if the owner is a Christian, then the Company is again a Company, and not a person. Got it.
Under certain circumstances, yes. And have been since a Supreme Court decision around 1820.
HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non-profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.
So Hobby Lobby's employees will be able to get the same abortifacients via the same insurer, but without Hobby Lobby paying for it. On the other hand, the insurer isn't paying for it, because this arrangement "imposes no net economic burden" on the insurer.
So the morning-after gal isn't paying for the night before, her religious employer isn't paying for it, and their insurance company isn't paying for it. Yet somehow that nine bucks a month gets paid. How? Appellate lawyer Mark Arnold:
In other words, they just add one loop or two to the procedure but the end result seems to be the same...A meaningless decision. The less restrictive alternative that the majority settled on is a certification by Hobby Lobby that it opposes contraceptive coverage, after which the insurance company must provide that coverage for free. Meaning that the premium charged to Hobby Lobby will necessarily include the cost of the free contraception. All smoke and mirrors.
He completely missed the origins of corporate civil rights, during the administration of Lincoln. He wanted the growth of American industrialism to go ahead at full steam, in particular the railroads, moving West. This happened during the Civil War, in that there was no more opposition in congress by the South.
This brought major growth in truly national corporations, not just limited to single states. Often, as with railroads, corporations just wanted to pass through some states en route to other states. But the state legislatures of the pass through states saw these corporations as “cash cows”. In effect, forcing them to do business in that state that they didn’t want to do, for the right to pass through.
So after a lawsuit made it to the SCOTUS, and the justices reached their decision, the court reporter of the SCOTUS asked the chief justice if their decision implied that corporation had civil rights. The chief justice said that was what the other justices thought, so the court reported noted it down.
And from there: not an act of congress, nor a written decision of the Supreme Court, nor an act by the president, was the origins of corporate civil rights.
Since then, business law is dominated by corporate civil rights law.
Technically speaking, this creates a constitutional dilemma, because human civil rights are exclusively endowed “by the Creator”; but corporate human rights are exclusively granted by government. So confusing the two is begging for disaster.
There actually needs to be a constitutional amendment to make this point clear: that corporations *do* have rights granted by government; but that these rights are *not* natural rights or human civil rights.
I think it’s one of the very first laws of the USA that a corporation is a “person” for purposes of the law.
Levin said something about it the other night.
During the last election campaign, when Mitt Romney pointed out that Corporations were in fact people, he was roundly excoriated and laughed at by the Libs and the press, unreal...
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If, as the left loves to claim, corporations are not people why do they want them taxed? Do computers or filed papers pay taxes?
Regarding if corporations can be regarded as people under the Constitution, please consider the following. I read a little about the history of patents, the Founding States having delegated to Congress the power to award inventors and authors the power to protect their ideas as evidenced by Clause 8 of Section 8 of Article I.
Patent
To me, given that the Founders decided to reward inventors and authors with temporary monopoly power to encourage people to share their ideas, I have no problem with the idea that corporations can be regarded as people under the Constitution.
This isn’t about corporations. Hobby Lobby was about a “closely held” translation family company that practices its religion in their stores.
We should all be flocking to them today.
The main reason that some politicians are concerned about corporations, imo, is because crook politicians want to hold on to their piece of the constitutionally non-delegated federal power that the feds are wrongly exercising these days, such power actually 10th Amendment protected state power which the feds have wrongly stolen from the states.
As mentioned in other threads, if patriots and their state lawmakers would put a stop to the tsunami of constitutionally indefensible federal taxes that are now going to DC, then crook politicians would probably complain less about corporations who bribe federal lawmakers for earmark spending favors, many earmarks not justifiable under Congress's Constitutional Article I, Section 8-limited powers.
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