Original intent, bitches!

This interview with a historian about how the “Founding Fathers” felt about corporations is well worth reading:

A couple months ago the Supreme Court ruled that restricting corporate political spending amounted to restricting free speech. In this view, corporations are pretty much equivalent to people. Would that have seemed reasonable to the Founding Fathers?

In a word, no.

I read this opinion carefully — I’m trained as a historian, not a lawyer. Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It’s lovely prose, but as a matter of history the majority is simply wrong.

Let me put it this way: the Founders did not confuse Boston’s Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn’t literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.






42 replies
  1. 1
    contract3D says:

    “the Founders did not confuse Boston’s Sons of Liberty with the British East India Company.”
    Excellent! I’ve never seen that essential point put anywhere near as succinctly and well.
    I’ll be using that quote in a lot of future conversations.

  2. 2

    A corporation is not a person. A corporation is basically a relationship between people.

    I would understand that the Supremes did not wish to turn control of elections over to domestic and foreign corporations. But they did.

    It takes a lot of naivete to think that those with the most money won’t try to control everything. I cannot believe that the justices are that dumb. They must have known what they were doing.

  3. 3
    r€nato says:

    When a corporation can be tossed in prison for 25 to life for poisoning thousands or stealing their life savings, then maybe I’ll buy the argument that corporations are people.

    This is the most radical SCOTUS, ever. As I’ve believed since I first heard the term 30 years ago, “judicial activist” is just a hoity-toity way of saying, ‘waaaaah I didn’t get my way! No fair!’

  4. 4
    licensed to kill time says:

    The British East India Company traded in spices. So, this isn’t off topic:

    An Australian publisher has had to pulp and reprint a cook-book after one recipe listed “salt and freshly ground black people” instead of black pepper.

    The cookbook was called The Pasta Bible.

    I’m sorry, I just found the whole article so funny/odd I had to work it in here somehow. Carry on.

  5. 5
    r€nato says:

    When you read Madison in particular, you see that he wasn’t blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he’s worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

    Who knew James Madison was a dirty commie.

  6. 6

    I was just writing a draft on this subject this morning. The concept that the Corporation should get protections from government as if it were a person is just as absurd as declaring that slaves were 3/5ths of a person.

  7. 7

    Let’s just hope one the conservatives leaves the Supreme Court during Obama’s presidency or this ruling will not be reversed for at least 100 years.

  8. 8
    Wayne says:

    I want to register my company to vote. Is that now possible?

  9. 9
    dricey says:

    John Roberts is a partisan hack culled from the political gang that goes by the high-sounding name of the Federalist Society. Alito and Scalia are also members of that gang. The principles of the law are mere conveniences to them, to be used or ignored as it suits their needs as they use the SCOTUS to turn this country over to the billionaire puppeteers who pull their their strings. They won’t stop until they’ve ended the rule of law and reduced us all to wage slavery.

    If the Confederate Party wins back the House and Senate this fall, look for articles of impeachment to be introduced against Obama, and look for Roberts to find that being black, or being accused by a gang of talk radio thugs of being a socialist does, in fact, constitute a high crime or misdemeanor.

    The man belongs in jail, not on the SCOTUS bench.

  10. 10
    RSA says:

    Excellent find, DougJ. I’ve been wondering about this, given that corporations existed back then.

  11. 11
    r€nato says:

    @Wayne: Sure. You are entitled to exactly as many votes, as dollars your corporation has in the bank.

  12. 12
    bay of arizona says:

    Great find.

    Conservatives do the same thing with the 14th Amendment, believing the Supreme Court that gutted it in the 1870s but not the Congress that actually wrote it in the 1860s.

    If a conservative says the sky is blue, I would double check.

  13. 13
    Wayne says:

    @r€nato: I guess I’ll register the company just before the next payroll.

  14. 14
    r€nato says:

    The original meaning of the Second Amendment has also been twisted by ‘originalists’ well beyond its original intent.

    It would take perhaps 15 minutes of research regarding how militias were organized and used in early America, to realize the 2nd Amendment is talking about the right to form citizen militias to defend sovereign states.

    This method of raising and arming military forces, is as outdated as the Third Amendment.

    …in fact, I think an English professor could disentangle the meaning of the 2nd Amendment in five minutes.

  15. 15
    Citizen_X says:

    Okay, sure, the Founding Fathers didn’t love them some corporations. But you betcha they all loved humongous standing militaries, amirite?

  16. 16
    Salt and freshly ground black people says:

    Has anyone ever tried to put a corporation in jail for theft? I’m only half kidding here – if a corporation is found to have willfully deceived its shareholders, making them lose a lot of money in the process, is there any precedent for going after the corporation itself rather than its officers? What would that even look like?

  17. 17
    El Cid says:

    The comparison of a legalized, state-protected entity [a corporation] with a mere assemblage of individuals is absurd.

  18. 18
    Bnut says:

    I will never for the life of me understand the constant going over and over of the Founding Fathers (always capitalized) and original intent. Where they brilliant men? Yes. Am I glad they did what they did? Yes. Has the world benefited? Yes. But they lived in the 18th century! Does every position that rich revolutionaries took really apply perfectly to our modern world?

  19. 19
    r€nato says:

    Since we’re getting all constitutional on each others’ asses, here’s my argument regarding the 2nd Amendment:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Now, if – as NRA members and the right-wing judicial activists of the SCOTUS argue – the 2nd Amendment (“2ndA”) simply establishes the right to keep and bear arms, why would it not have been worded thusly:

    The right of the people to keep and bear Arms, shall not be infringed.

    But that’s only the last half of what it says. Surely, then, the Founding Fathers had a reason to insert the first half.

    A well regulated Militia, being necessary to the security of a free State,

    It’s undisputed that in the early US, the individual states were much more like the definition of the word ‘state’ with regards to foreign countries, rather than being semi-autonomous political subdivisions of the US, which is what they are today. After all, that’s the whole gist of the “states’ rights” dogma.

    That’s why some of the 18th-century issues of concern which had to be addressed by any kind of federal structure, were issues which kept the states from uniting. Things like states levying tariffs on interstate commerce. Or, you know, the right of states to determine whether slavery was legal and how to regulate it. (Not that the Civil War had anything to do with slavery, of course.)

    As recently as the Civil War, our wars were fought largely with citizen militias organized at a state level. Most importantly, these citizens generally armed themselves. The idea of a professionally-trained, centralized standing army entirely under federal control was a product of the industrialization of war in the 20th century and especially a result of the Second World War.

    (we’ve been in a permanent state of war mobilization for the last 70 years. Think about it.)

    Today, the various state national guards are the greatly-diminished heirs of the 18th/19th century state militias. The federal government is responsible for guarding our nation’s borders, and the idea of states needing a citizen militia for ‘security’, is absurd other than the rare exception of some kind of civil disturbance. States don’t need to defend their borders against neighboring states nor against the Indians. The only other ‘security’ which state national guards provide, is to render aid in the event of natural disaster. In other nations, this is commonly regarded as some sort of civil protection force.

    I could digress further on the issue of state national guards; suffice it to say that even our ‘state militias’ are no longer composed of volunteers who’ve armed themselves thanks to the 2nd Amendment. After all, even the firearms are standardized and issued to troops at the national guard level. You can’t bring your shotgun to the party.

    And just to further demolish the argument, the very first words of the 2nd Amendment are, “A well regulated militia”. I don’t think the commonly-accepted meaning of, ‘well-regulated’ has changed all that much in the last two centuries.

    So what does the 2nd Amendment really say? It says that citizens have the right to have firearms which they use in the context of organized state militias.

  20. 20

    Great find — thanks a bunch. This topic really gets me going because I see it as so central to the illness that’s overcome our nation. Failure to distinguish between the capitalist and democratic aspects of our society will be our undoing if left unchecked. To grant political representation to corporations on free speech grounds is clearly further encroachment of the rights of our citizenry for the benefit of business. It’s also patently dishonest, self-serving, and destructive to our democracy.

  21. 21
    Xanthippas says:

    You probably shouldn’t trust an historian with the law, but you DEFINITELY shouldn’t trust a Supreme Court justice with history.

  22. 22
    Professor says:

    Jeebus, are you not aware that the Supreme court decisions are arrived at under the guidance of the Vatican under Canon/ ecclesiastical law? Go figure! You have six Catholic members on the court and you know once a catholic always a catholic. Why is it that Catholics are banned from the British Throne by the Act of Settlement(s) 1701 and 1708.

  23. 23
    Brachiator says:

    @r€nato:

    As recently as the Civil War, our wars were fought largely with citizen militias organized at a state level. Most importantly, these citizens generally armed themselves. The idea of a professionally-trained, centralized standing army entirely under federal control was a product of the industrialization of war in the 20th century and especially a result of the Second World War.

    This kinda oversimplifies history. Citizen militias were largely ineffective and always had to be blended into, take direction from, or be transformed into a professional army. From the earliest battles of the Revolutionary War, George Washington recognized and had to deal with disorganized citizen militias.

    Also, in many ways, the idea of a professional, centralized standing army came from Napoleon, not a result of 20th century innovation. Napoleon’s professional officer corps derived from many levels of society was the antithesis of the model of aristocrats buying commissions. Also, the organization and industrialization of the North during the Civil War also created the template for modern warfare.

    So what does the 2nd Amendment really say? It says that citizens have the right to have firearms which they use in the context of organized state militias.

    I see your point here, but no. The idea (the myth) was that citizens who knew how to handle firearms would be able to bring them and their expertise to citizen militias. But you seem to be implying that citizens could only use firearms in the context of organized state militias, which is not the case.

  24. 24
    Svensker says:

    @r€nato:

    I’d just been thinking the eggzact same thing a few weeks ago. Are we great minds, or just slow on the uptake? It doesn’t seem controversial to me, tho, just obvious.

  25. 25
    Brachiator says:

    @Professor:

    Why is it that Catholics are banned from the British Throne by the Act of Settlement(s) 1701 and 1708.

    Bigotry.

  26. 26
    b-psycho says:

    @r€nato:
    Ok, so the purpose of the amendment was in the context of citizens militias handling war, and now they don’t. Fine. That doesn’t mean it is automatically void & anyone not working for the government in some form must disarm. There’d have to be an amendment repealing the 2nd — which (hopefully) would have no chance in hell of passing*.

    That said, I thought about it another way: Maybe if the citizens militias had stayed the way of fighting wars then we wouldn’t have the military-industrial complex & the constant murder of foreigners over their resources. Could you imagine the average schlub getting off the couch long enough to sustain empire these days?

    (* – When the wingnuts get trigger happy I’d rather the Left maintain the ability to fire back, thank you)

  27. 27
    DBrown says:

    Once slaves were freed, lawyers starting expanding the thirteenth to include corporations and many, many decades, they pushed the edges of narrow rulings over and over until low and behold, today, a corporation now has the same free speech-read buy congress as humans (by roberts and cornies the corperate ass kissers).

  28. 28
    Wilson Heath says:

    @Wayne:

    Beat me to the punch. Fun test case to add to my to-do list upon incorporation. It really helps the corporation look like a good citizen if it has voted before it runs for office. There are so many good and disruptive possibilities to push to try to slap some sense into the judiciary.

  29. 29
    Bnut says:

    I can’t recall who the plan was named after, but the US Army tried to establish a large group of active duty officers and virtually no enlisted, seeing as they could be raised and trained faster. This kind of falls to the wayside now they we are not so agrarian and not hunting for most of our food. Harder to train lots of city slickers I guess.

  30. 30
    Ejoiner says:

    Also, in many ways, the idea of a professional, centralized standing army came from Napoleon, not a result of 20th century innovation

    .

    I’ll jump in here – I agree with this statement in general (and especially as it applies to Europe) but I think Renato’s point was that as a particular American variation it wasn’t until the 20th century that we approached that level (some in WWI briefly and then in a transformative manner from 1942 on).

    But you seem to be implying that citizens could only use firearms in the context of organized state militias, which is not the case.

    Well they could and did certainly but there is that explicit first phrase which seems to say – you’ve got this right but only for these conditions (well regulated, state militas), otherwise its provisional based on local statutes. And as someone else pointed out earlier, the FF were great and mighty thinkers but we’re dealing with social and technological conditions they never envisioned. For that reason they fully expected the Constitution should be adapted over time to changing conditions in an orderly process (hence amendments). The “strict interpretationalists” never seem to get that part.

  31. 31
    bobbo says:

    This was one of Justice Stevens’s points in dissent. The personhood of a corporation was simply a legal fiction – invented for the convenience of courts so that e.g. when corporations did bad things like poison groundwater there was someone to sue. Then Roberts took the figurative term “person” and made it literal, which is absurd. I think Stevens said that the implication of Roberts’s argument was that now corporations should get a vote.

  32. 32
    Brachiator says:

    @Ejoiner:
    RE: lso, in many ways, the idea of a professional, centralized standing army came from Napoleon, not a result of 20th century innovation
    .

    I’ll jump in here – I agree with this statement in general (and especially as it applies to Europe) but I think Renato’s point was that as a particular American variation it wasn’t until the 20th century that we approached that level (some in WWI briefly and then in a transformative manner from 1942 on).

    The American Civil War was probably the first modern war (and oddly enough, Europeans didn’t understand this since the US was so far away and didn’t take part in the 19th century wars for world dominance). Industrialization, mechanization, the need to clothe and feed large masses of men, theater war operations all were mastered by Grant and his generals, while Lee and the Confederacy thought and fought with firmly set 19th century mindsets. More importantly, Renato’s thesis that America relied on citizen militias rather than professional armies is just factually incorrect.

    Also, if you are going to talk about American military history, you also have to talk about the professional French navy which supported and turned the tide for the Americans, and the professional American navy which made the crucial difference in the otherwise near disaster in the War of 1812.

    RE: But you seem to be implying that citizens could only use firearms in the context of organized state militias, which is not the case.

    Well they could and did certainly but there is that explicit first phrase which seems to say – you’ve got this right but only for these conditions (well regulated, state militas), otherwise its provisional based on local statutes.

    Sorry, even focusing on the first phrase, the most reasonable way of looking at this is to say that the founders expected that men who kept and knew how to use guns would bring them and their expertise when they joined militias. If they could own guns but never use them until called to militia duty, they would be no different from a recruit who had never seen a gun before.

    And as someone else pointed out earlier, the FF were great and mighty thinkers but we’re dealing with social and technological conditions they never envisioned.

    The details change, but often the basic principles and dilemmas are similar.

    For that reason they fully expected the Constitution should be adapted over time to changing conditions in an orderly process (hence amendments). The “strict interpretationalists” never seem to get that part.

    I agree with you here, but I am even more radical on this point. We are the founders. Every new generation is included in “We the People of the United States,” and ultimately the Constitution has to mean what we need it to mean, with reference to history, but not viewing the Constitution as though it were written on stone tablets and dictated by a deity.

  33. 33
    OriGuy says:

    I think that in determining the intent of the Second Amendment, it’s worth looking at the Constitution’s predecessor document, the Articles of Confederation. From section V:

    No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

    There’s nothing in it about individual citizens arming themselves. Maybe the writers of the Bill of Rights though that was an omission, or implicit, but they could have made it clearer in the rewrite.

  34. 34
    Yutsano says:

    @licensed to kill time: If TattooSydney managed to snag a copy I shall be so insanely jealous.

  35. 35
    licensed to kill time says:

    @Yutsano: He must be alerted to be on the lookout. Issue a BOLO, stat!

  36. 36
    charles pierce says:

    Mr. Madison, while talking about established ecclesiastical corporations, gets a little expansive:

    “The power of all corporations, ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses.”

    L’il Jemmy. DFH.

  37. 37
    iLarynx says:

    “The selfish spirit of commerce knows no country, and feels no passion or principle but that of gain.”

    –Thomas Jefferson to Larkin Smith, 1809.

    “I hope we shall… crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

    –Thomas Jefferson to George Logan, 1816.

    http://etext.virginia.edu/jeff...../index.htm

  38. 38
    WereBear says:

    I continue to feel that this recent SCOTUS decision will have unexpected consequences that will eventually bite them on the behind.

    Much like the Republican’s other decisions this century.

  39. 39
    Ejoiner says:

    @Brachiator:

    We are the founders. Every new generation is included in “We the People of the United States,”

    I like that idea, quite poetic and moving.

    I agree with all your points about there being a professional, standing military system in Europe and even during the US CW. My point is that one case was not us and the other was temporary. WWI required a whole new mobilization on a whole new level which was superceded by WWII and then – the key point – made something of a permanent state as we began playing the role of a global empire during the Cold War.

  40. 40
    The Other Steve says:

    You realize Roberts is just going to say “Ok, corporations should get to vote too.”

  41. 41
    Catfish N. Cod says:

    States don’t need to defend their borders against neighboring states nor against the Indians.

    Yeah, that would impede going to the casinos :P. Seriously, though, the National Guard is called out for every natural disaster, as you point out, and also as backup security for virtually any major event, crowd control, when massive labor is required, etc. It’s still a key element of public safety; just not the same one it started out being. We’re a long way from the North Middlesex Regiment of 1636.

    @Briachator:

    Why is it that Catholics are banned from the British Throne by the Act of Settlement(s) 1701 and 1708.

    Bigotry.

    Um…. how shall I say this politely…. no.

    The people who wrote this law had grown up during the Wars of the Three Kingdoms, which had originally been sparked by trying to impose religious law without Parliament’s consent. The last attempt (in Britain) had been by the Catholic James VII/II, in 1687. And there were numerous examples on the Continent as to why constant flux in the monarch’s religion was destabilizing; quite aside from direct changes to the state religion and enforcement/oppression thereunto, monarchs of differing faiths tended to have differing ideas as to property laws, individual vs. collective responsibilities, tax laws, on and on.

    So they decided to limit the throne to one side so as to minimize the disruption caused by religious strife. Since Protestants were in the majority, it was felt a Protestant monarch would lead to more stability. There was also concern that being a Catholic state led to a loss of indepedence and autonomy… not a wholly baseless worry, either. Even in America, Catholic politicians were only trusted once it was publicly demonstrated that they refused to take bishops’ orders. I still wonder how much influence Rome has on, say, Justices Scalia and Alito, but that’s a topic for a different thread and a different day.

    The idea that religious freedom could be stabilizing instead of destabilizing was considered utterly insane in 1700. Indeed, France still doesn’t believe it, which is why they try to ban crucifixes and hijab scarves alike — imposing secularism in the public sphere, as the reverse of imposing religion that the Ancien Regime committed. Live-and-let-live was an idea pioneered by America and by Germany (once Germany was unified), and so wasn’t taken seriously by most Europeans until the 19th century.

  42. 42
    brenda walter says:

    can the author be found for comment. Who would have thought,

    here is a similar article.

    The central issue in the case, set for argument March 2, is whether the Constitutions Second Amendment applies to state and local gun laws, in addition to those enacted by the federal government and District of Columbia. When the court in 2008 struck down D.C.

    http://www.unitedstatespolitic.....court.html

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