9/9/2009—In the midst of arguments over the negative impact of a ruling by the United States Supreme Court in the case being argued today limiting the power of the government to regulate corporate political donations, a more fundamental question is being overlooked. Whether the issue is put in terms of who is a person for purposes of the Constitution, or is put in terms of who is protected by freedom of speech, the first question to ask is whether corporations are protected by the Constitution at all.
Conservative constitutional theory insists that the Constitution be interpreted in terms of its original meaning, albeit updated for changes in technology and so forth. I doubt that at any relevant date, the framers of either the original Constitution or the framers of the Fourteenth Amendment thought that corporations had constitutional rights. Rights were reserved for human beings, including human beings in associations. But corporations were artificial entities. They only existed at the sufferance of the State. Indeed they were considered creations of the State. I don’t know of any historical evidence that would contradict this.
The Court has never squarely faced the question of corporate rights, although in several cases, the Justices have seemed to assume that such rights exist. But now is the time to confront the question directly. Corporations do not have rights. Rights are restricted to human beings. You might as well ask whether dolphins have constitutional rights.
Justice Scalia tried to finesse this question by referring, in McConnell v. Federal Election Committee (2003) to the negative implications of permitting limits on corporate speech. Well, I’m sorry about that. But no one ever said our Constitution is perfect. If Justice Scalia wants to change the meaning of the Constitution, he should get it amended rather than trying to change its meaning through fanciful interpretation. I thought he would be the last one in the world to make that mistake.