Friday, January 22, 2010

Did the framers of the US Constitution believe corporations should have free speech?

Wars, environmental degradation, and growing economic disparity -- not only in the US but abroad -- may be attributed to the traditional legal status of corporations under American law.  Over the years, US courts have accorded corporations many of the rights of persons.  Among these is the right to a limited degree of political free speech.

However, even in the United States, the ability of corporations to campaign, sponsor political candidates, or advertise in elections has long been subject to limitations. To the extent the courts have granted corporations  limited political rights, many corporations find themselves compelled to exercise this right. "Business corporations" discover they "must engage the political process in instrumental terms if they are to maximize shareholder value."  (Justice Stevens)   As we saw with the health care debate, limitations on a corporate political speech have not prevented insurance companies from buying candidates (so-called "Blue Dog" democrats) representing sparely populated rural states such as Montana or Nebraska.

Today, the US supreme court -- by a narrow 5-4 majority -- took away what few restrictions existed on the ability of big companies to manipulate the outcome of the democratic political process.

Justice Stevens, in his dissenting opinion, explains that that the framers of the United States Constitution did not have corporations in mind when they accorded Americans the right of free speech. Corporations are not even mentioned in the US Constitution.  This fact is particularly salient because the five-vote majority -- which included the court's four most conservative judges -- have long claimed to opposed "judicial activism" --  a sin US conservatives attribute to liberal-minded judges.  Conservatives such as Justice Scalia claim, as a matter of principle, that "founder's intent" (original meaning theory) ought to guide the high court.   Hence, the conservative majority's ruling in this case is glaringly inconsistent with the professed ideology.  Stevens: 
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.