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Journal of No. 118


November 3rd, 2019

We the Corporations, by Adam Winkler @ 10:27 am

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 A UCLA law prof traces the history of corporate rights in America.

The book starts a little slow, but gains steam as we move away from antiquated entities like the Bank of the United States and closer to Citizens United and Hobby Lobby.

Not that I'm a great legal scholar, but I have no problem with a corporation being a fictitious 'person' for legal purposes. But it seems clear that certain rights should be reserved to people people. The overall history is one of corporations getting more and more rights -- and possibly too much at the present time. There were two major threads that I saw:

#1: The extent to which the law should 'pierce the veil' and treat the rights of the corporation as the same as the rights of the people that make it up. While the arrow drifted back and forth over time, it seems that the current situation is where the people behind the corporations get the best of both worlds. If it comes to liability, the people are protected and only the corporation can be sued. If it comes to rights, suddenly the people can exert them (as the owners of Hobby Lobby assert their company itself has religious beliefs and religious rights that correspond to their own beliefs and rights.

In some cases, this ambiguity is not necessarily automatically evil. In one case a corporation composed of black investors was allowed to rent a segregated space because the corporation was not black. In another, the NAACP was black enough to sue for racial discrimination.

#2: What sort of rights corporations have, as opposed to people people. For a long time there was a distinction (wrong, I think) that corporations had property rights, but no liberty rights. I don't see how 'freedom of the press' can only be an individual right. Maybe it was different when newspapers were just Ben Franklin personally setting ink to paper, but nowadays all newspapers are corporations. How could they not have access to freedom of the press? And so it was ruled in cases involving Huey Long and Louisiana newspapers. But from this necessary (in my view) extension of liberty rights to corporations, it has been a slide toward giving corporations the whole farm. So much so that now they can use their deep pockets to express 'speech' in the form of superPAC donations.

A point that Winkler makes is that we often hear about the women's rights struggle, or civil rights struggle, but no one talks about the corporate rights struggle. But to be sure there was one, and it leaned on these other struggles a great deal.

Between 1868, when the amendment was ratified, and 1912, when a scholar set out to identify every Fourteenth Amendment case heard by the Supreme Court, the justices decided 28 cases dealing with the rights of African Americans—and an astonishing 312 cases dealing with the rights of corporations. At the same time the court was upholding Jim Crow laws in infamous cases like Plessy v. Ferguson (1896), the justices were invalidating minimum-wage laws, curtailing collective bargaining efforts, voiding manufacturing restrictions, and even overturning a law regulating the weight of commercial loaves of bread. The Fourteenth Amendment, adopted to shield the former slaves from discrimination, had been transformed into a sword used by corporations to strike at unwanted regulation.

A little snippet of California history:

On the justice’s next trip to California, Field and his bodyguard, Deputy Marshal David Neagle, were having breakfast at a train stop in Lathrop, about 70 miles due east of San Francisco, when Terry snuck up behind the justice and struck him. Neagle jumped up and shot Terry twice, once in the head and once in the heart, killing the former judge instantly. It was then discovered, however, that Terry was unarmed, and California authorities arrested both Neagle and Field for murder. To this day, Field remains the only justice ever arrested while serving on the Supreme Court, much less for a crime as serious as murder.

Another reminder of how the Republican Party has changed since the days of Lincoln (or even McKinley). immigrant voter reachout efforts:

Although state committees had traditionally managed the local campaigns, even for presidential candidates, Hanna centralized them all under his authority in order to be “the general staff of the whole army.” He reorganized the RNC’s executive offices and introduced an improved system of bookkeeping. He opened a branch headquarters in Chicago, closer to the midwestern voters whose support McKinley would need. He created the first nationwide advertising campaign to market a presidential candidate and produced over 100 million pieces of campaign literature printed in German, Spanish, French, Italian, Danish, Swedish, Norwegian, and Hebrew to appeal to immigrants.

School fighting for the right to be integrated:
...Berea College in Kentucky had moral [reasons to go to court]. At the time, the college, which was organized as a corporation like one of the earliest corporate rights litigants, Dartmouth College, was the only racially integrated school in the South. After Roosevelt’s fateful dinner with Booker T. Washington at the White House, Kentucky lawmakers hardened their segregationist resolve and passed a law prohibiting any school from having a racially integrated student body. The college challenged the law on various grounds, including interference with its right to choose its own students. It was unconstitutional, the college argued, to prohibit “the voluntary association of persons of different races” absent compelling reasons.

Justices had somewhat more 'political' lives in the past:
Hughes had to resign from the Supreme Court to run [for President!]. For all his intellectual and prosecutorial gifts, however, Hughes was a poor campaigner and, in an upset, lost by only a few thousand votes to the incumbent Wilson. The lesson of his failed candidacy—that the judicial temperament is ill-suited to the rigors of the type of modern, commercial-style campaign first envisioned by Mark Hanna—would discourage future Supreme Court justices from running for national executive office. (William O. Douglas came closest in 1940 and 1944 when he was considered for vice president by Franklin Roosevelt.) Losing the presidency and a lifetime seat on the Supreme Court within months of each other, however, did not seem to faze the gifted Hughes. Like a cat with nine lives, he would go on to serve as secretary of state to two presidents and, in 1930, would be appointed again to the Supreme Court of the United States, this time as chief justice.

This case was about proselytizing in a 'company town', but obviously has some application (I think) to current companies that want to exclude certain sorts.
Although Black recognized that private property owners usually have the right to exclude whomever they want from their property, the “more an owner, for his advantage, opens up his property for use by the public in general,” the more the owner has to respect the constitutional rights of the public. Here, Chickasaw’s business block was “accessible to and freely used by the public in general.” Because Chickasaw was a town—even if it was really a company town—it could not silence religious minorities.

The world could use more Congressional committees humiliating people interfering with witnesses:
In 1966, Gillen sent out agents to look into [Ralph] Nader’s personal life, to see if the crusader was into “women, boys, etc.,” and to determine if he liked “drinking, dope” or anything else scandalous.11 When Morton Mintz of the Washington Post reported that Nader was being tailed, Senator Abraham Ribicoff, the chairman of the Senate subcommittee, was outraged at the apparent harassment of a congressional witness. He demanded GM president James Roche appear before the Senate, where the humiliated car executive was forced to apologize repeatedly.

Of the many things one could blame Rehnquist for, annoying pharmaceutical commercials are not among them.
“The logical consequences of the court’s decision in this case are far-reaching indeed,” warned Rehnquist. Not only would the court’s ruling inevitably “extend to lawyers, doctors, and all other professions,” it would also lead to “active promotion of prescription drugs, liquor, cigarettes, and other products.” In a prescient passage, Rehnquist predicted that pharmaceutical companies would soon be hawking their drugs directly to consumers: “Don’t spend another sleepless night,” he predicted the ads might say. “Ask your doctor to prescribe Seconal without delay.”

 
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Journal of No. 118