Hobby Lobby: Latest in Evolution of Corporate Consitutional Rights

by Jeff Reifman

The History of Corporate Constitutional Rights

In light of this week’s Hobby Lobby ruling that corporations are persons under the law which can hold religious beliefs, I thought it would be good to revisit the origin and evolution of corporate personhood and corporate constitutional rights.

While the word corporation never appears in the Constitution, the Supreme Court has been slowly expanding rights for corporations since the early 19th century. These are judge-made “Constitutional” rights granted to corporations through misguided interpretations of the law; some might call these activist judges. The modern Roberts Court has been the most radical.

The model brief (pdf) by the Community Environmental Legal Defense Fund (CELDF) describes how Supreme Court judges have gradually found rights for corporations in the Constitution:

1819: Beginning with Dartmouth College v. Woodard, the Supreme Courted granted Constitutional Contracts clause protections to Corporations for the first time. This right is historically used by corporations holding property rights to sue communities and states to overturn regulations on harmful environmental practices such as fracking.

1886: Then, with Santa Clara County v. Southern Pacific Railroad Company, the Court granted Constitutional rights for the first time to Corporations and created the concept of corporate personhood.

The Courts found personhood for corporations by abominably leveraging the equal protection clause of the Fourteenth Amendment, building power on the successful work of abolitionists who fought against slavery:

“For much of the nation’s first century, corporations were seen as a means to an end, not unlike associations. They were ‘chartered,’ or called into existence, by the states, and their charters could be revoked at any time; they were not considered ‘persons’ until after the Civil War, when business magnates began to avail themselves of the 14th Amendment’s antidiscrimination protections.” – When is a Corporation Like a Freed Slave (Mother Jones)

1889: Minneapolis & St. Louis Railroad Company v. Beckwith - the Court granted Due Process protections to corporations.

1893: Noble v. Union River Logging the court grants Corporations Fifth Amendment protections of double jeopardy.

1906: Hale v. Henkel - the court grants Corporations Fourth Amendment protections for unreasonable search and seizure.

1978: First National Bank of Boston v. Bellotti - the Court Grants First Amendment protections to corporations.

2010: Citizens United v. Federal Elections Commission - the Court significantly expands the First Amendment rights of Corporations ruling that they can spend unlimited amounts on elections.

2014: This week, Burwell v. Hobby Lobby - the Court holds that for profit corporations are persons under the law which can hold religious beliefs.

You may also be interested in Seattle’s Stand Against Treating Corporations as People, which highlights how these laws confer Constitutional rights upon the foreign investors holding interest in many corporations as they sue American communities.

My personal view is that the long term impact of money on the makeup of government at all levels in the United States has now fundamentally corrupted our democracy, a view recently backed up by a Princeton research study. You can read more about this and my theory of change here: It’s Time for a Populist Culture War on Corruption.

The Constitution Initially Expanded Rights for People

This trend of increasing corporate power reverses the early evolution of the Constitution which historically expanded rights for people, beginning with its first ten amendments (The Bill of Rights). But these rights did not apply to slaves or women at the time. More amendments were needed over time to include these groups:

1865: The Thirteenth Amendment abolished slavery.

1868: The Fourteenth Amendment extended Due Process and Equal Protection for all persons.

1870: The Fifteenth Amendment provides the right to vote to former slaves and minorities (but not women).

1920: The Nineteenth Amendment provided the right to vote for women.

1971: The Twenty-Sixth Amendment provided the right to vote for 18 year olds, reversing Oregon v. Mitchell (1970)

The question of whether corporations are persons is not one of perception. It is not clouded by whether corporations come to life at some moment of conception. In fact, the rule of corporate personhood is best ridiculed by dissenting Montana State Supreme Court Justice James C. Nelson:

“Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

It is past time that the application of human rights to corporate legal entities be eliminated.

The Supreme Court Trails Culture

Supreme Court decisions tend to trail cultural sentiment by many years. But I believe that cultural change is occurring with regards to corporate “constitutional rights” and corporate speech. Supreme Court approval ratings remain near 25 year lows and 65 percent of citizens of both parties disapprove of Citizens United. Congress’ approval rating recently dropped to its lowest ever, 16%.

The makeup of the Supreme Court and the impact of cultural changes does deliver change over time. Whether changed by the adoption of new amendments or the Supreme Court’s own decisions and reversals, there is ample evidence of Constitutional law as a living, breathing, ever-changing entity.

• Dred Scott v. Sandford (1857) – Rules that blacks do not have the right to sue in Federal Court, reversed by the Fourteenth Amendment.
• Plessy v. Ferguson (1896) – Rules for segregation saying it does not violate the Fourteenth Amendment, reversed by Brown v. Board of Education Topeka (1954)
• The Eighteenth Amendment enacts the prohibition of alcohol and the Twenty-First Amendment repeals it.
• West Coast Hotel Co. v. Parrish (1937) upholds minimum wage legislation passed by the State of Washington
• Mapp v. Ohio (1961) required courts exclude evidence seized illegally from trial clarifying and expanding the Fourth and Fourteenth Amendments, reversing earlier decisions such as Wolf v. Colorado (1949)
• Keyishian v. Board of Regents (1967) prohibits employment discrimination based on political affiliation, reverses Adler v. Board of Education (1952)
• Roe v. Wade (1973) - Rules that the right to abortion in the first trimester is protected by right of privacy.
• Austin v. Michigan State Chamber of Commerce (1990) validated campaign finance restrictions before later being reversed by Citizens United (2010)
• Lawrence v. Texas (2003) invalidated sodomy laws in thirteen states, overturned Bowers v. Hardwick (1986).
• United States v. Windsor (2013) struck down bans on same sex marriage.