Table of Contents
Before I moved to Seattle, I thought of Microsoft as the evil empire that had taken the personal out of PC by restoring corporate IT back in power over users. Then they became a pillar of the community. Now, I'm not so sure again.
Corporations, limited liability companies, the bestiary of special purpose entities and all the other creatures of the State likely have claim to rights as a person under the law with a separate legal identity from its management and owners. They can sue and be sued, enter into contracts, insulate their owners from personal liability, be legally immortal, own property, petition the government for redress of grievances, be entitled to due process of law and have full First Amendment rights to speech.
Speech includes the right to engage in political speech, just so long as they jump through some hoops as to how they direct their largess. Nothing directly to the candidate because that would appear corrupt. (Shocking, shocking.)
About the only things they can't do that human persons can is to vote, get passports and the like.
Early in US history, it look an act of a state legislature to charter a corporation, and it was often for a public purpose like building a bridge. It didn't take long for the concept to evolve into corporate life for the benefit of a business.
It wasn't until 1886, that the notion that corporations might be entitled to many of the same rights as humans made an appearance. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886) dealt with a tax dispute, which ended up being decided on narrow grounds. But a remark by Chief Justice Waite planted the seed
The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.
In the law, there are two parts of a decision, what's called a holding and entitled to be respected as precedent, and what's called dicta a sort of by-the-way that isn't binding on the lower courts. On the other hand, it's sort of like the difference in the military between disobeying a direct order and disregarding and express wish is about 2½ years in the brig or stockade. Take a hint, will you?
It took only two years for the hint to be cemented, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888). This was consistent with the post-Civil War boom gestalt that culminated in the First Gilded Age celebration of wealth as a signifier of other worthiness.
With a brief interruption during late in the second Theodore Roosevelt administration when he inveighed against the malefactors of great wealth, the privileged position of business organizations persisted from 1905-1934 under a doctrine of "substantive due process." Due process generally signifies notice and a right to be heard before state action is taken that affects a person. It was the surfboard that other, hazy right rode.
Of course, there are unenumerated rights of liberty of contract that protected the agreements among the malefactors to create cartels to the detriment of the consumer. This position had to be abandoned in 1934 in the depths of the Depression for reasons of preserving the political independence of the judiciary. The notion of unenumerated rights got a revival under Mr. Justice Douglas's "pernumbra" rights of privacy that was part of the rationale of Roe v. Wade permitting the exercise of bodily autonomy by women, for once. That lasted until recently with the Dobbs decision rejecting the concept of unenumerated Constitutional rights based on readings from history and tradition.
Given the paucity of history and tradition dating back to the finding, the current supermajority of the Court the rationale of the Court to support the favored treatment of fictive persons extended in Citizens United will have to find different rationales.
The Mascot of the Day
