A little over three years ago, the United States Supreme Court announced in Citizens United v. Federal Election Commission (2010) that, in essence, the political speech rights of businesses had long been invaded by unconstitutional regulation by Congress. Those controls would henceforth be lifted. Since that time Americans have witnessed the explosion of Super PACs. It is hard to know for certain how this affected our recent elections, but the very fact that a “conservative” court could render this decision represents a fundamental shift in our country’s self-understanding to which every American should pay close attention. With Citizens United, our nation has now officially imbued corporations—artificial creations of the state—with the types of rights that our Constitution once reserved for actual human beings.
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When the Constitution was framed and ratified, the political rights it embodied were understood to be narrower (but blessedly more secure) than our broad-but-insecure “natural rights.” Still, natural rights were taken to be the ultimate source of, and guide for, the political rights to which the people had consented. In arguing against a bill of rights in Federalist #84, Alexander Hamilton noted that the first three words of the Constitution—We the People—captured this essence of our system and were “a better recognition of popular rights” than any positive statement of rights could be. Hamilton had a prophetic concern that a positive statement of people’s rights might lead us to interpret them as merely positive, allowing us to forget their deeper basis in nature. When James Madison guided the first Congress in framing our actual Bill of Rights, they were careful to add the Ninth Amendment—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—as a precaution against taking these positive statements as supplanting reserved natural rights, and to explicitly state the fountainhead of such rights—the people.
Read a response to this post by Scott Yenor here.One power delegated to government was the power to create corporations—artificial persons existing only in the contemplation of the law, having only those powers and rights they are explicitly given. In particular, as Chief Justice Marshall put it in Dartmouth College v. Woodward (1819), a corporation “does not share in the civil government of the country, unless that be the purpose for which it was created.”
Throughout most of our history, business corporations were understood to be created for the sole purpose of organizing legal profit-seeking activity. As Wendell Berry puts it, “a corporation, essentially, is a pile of money . . . with the single purpose of becoming a bigger pile of money.” The Art of the Commonplace, 255 Milton Friedman, the luminary of American capitalism, argued that restricting business corporations to profit-seeking, and denying them broader social concerns, was a necessary part of the relations between business and government: “In [a free market] economy, there is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game” Capitalism and Freedom, 133 According to Friedman, the political function of creating those “rules of the game” is properly the responsibility of citizens. We should structure the rules so that “an individual in pursuing his own interest” would promote the interest of the whole society. The “invisible hand” envisioned by the old understanding, in other words, required thoughtful control by republican citizens over the rules by which businesses played—the order that free market activity could provide was not simply “spontaneous.” Implicit in our earlier understanding was the opinion that only actual human citizens, and not corporations created for profit, were capable of abstracting themselves from their narrow interests sufficiently to establish “a framework of law” capable of turning the profit-seeking motive toward the interest of society in general.
Until the 1970s our law strove to maintain this old-fashioned understanding of the role of business corporations in our system. However, with Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978) the Court began to construct a new understanding of government sovereignty that Citizens United would ultimately crown. Then Associate Justice William Rehnquist’s dissent (one wants to say lament) in Bellotti describes the change with admirable clarity and economy. Until that decade, he argued in the losing cause, we strove to give speech rights only to corporations that were created explicitly to organize the political speech of flesh and blood persons. And so, media and non-profit corporations were allowed rights of political speech denied to common business corporations. Of course, each and every individual who worked for a business corporation also had political speech rights that they were free to exercise, or not, in the cause of their business interests. They had these rights not as employees of corporations, but as natural persons.
With the Citizens United decision, the umbilical cord from Nature to political rights is cut at last. A new, utterly positive, constructed, technological political right has been created. The court now considers speech as abstracted from speakers, so that speech rights need no longer be considered as grounded in the natural endowment of human beings. In this brave new understanding, the First Amendment no longer reserves people’s rights from government. Rather, it implies the power of government to create beings endowed with speech rights and thus the lawful power to influence their own regulation. Our Constitution suddenly means that corporations have the right to use their money-speech to do their utmost to control the microphones through which political deliberation occurs. We have long known, of course, that businesses influence policy making, through lobbying as well as more corrupt means, but now the Constitution itself allows that business corporations don’t simply play by the people’s rules; they have a right beyond the people’s power to regulate it, to use their advertising expertise to influence voters’ opinions as they will.
We are told that the complexity of our corporate web now presents practical difficulties that make the old distinctions among types of corporations impossible. For all I know this is correct and the problems are insurmountable—but shouldn’t we at least take care to recognize the fundamental changes implied by Citizens United? From now on, isn’t every chartering of a business corporation the creation of a speaker with First Amendment rights? Doesn’t every stock purchase potentially include funding that business’s political speech? By our new definitions money is speech, and beings with vast stores of money are allowed freedom from regulation in speaking with it to prevent the removal of that freedom. With regard to speech rights, don’t corporations cease to be the people’s instruments and become their equals the moment they’re created?
Let me sharpen the questions: Was Citizens United not the bolt of lightning that brought our Frankenstein to life? Is the quaint label of “judicial activism” sufficient for this act by our “conservative” justices? Or has the Court, with such an interpretation, declared us to have stepped well clear of any old-fashioned reliance on “the Laws of Nature and Nature’s God?” Has our new god, Technology, not hacked to pieces Nature’s God, as Zeus once sundered Cronus?
There can be no talk of tyranny or rebellion over the High Court’s act, of course, because “we the people” have long worshipped this god of our technological mastery over nature, and so we sanction the Court’s move with our constant acquiescence. We have long since stopped regarding the gifts of nature as having any considerable value when compared with the creative efforts of human beings. And so we now find it no surprise that corporations suddenly also claim rights of religious worship. Thus far, corporations have only demanded rights to Christian practices, like imposing owners’ beliefs about birth control on employees, but it seems inevitable that one day soon, corporations will claim the right to worship the very Technology that endowed them with inalienable rights of their own.
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.