Building from Santa Clara County v. Southern Pacific Railroad Company.
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In McCutcheon v. FEC, handed down last Wednesday, the Supreme Court built on the precedent of Citizens United by invalidating the federal aggregate contribution limit for individuals. But McCutcheon is not the only case that gives the Supreme Court chance to expand Citizens United’s reach this term.
In Sebelius v. Hobby Lobby Stores, the Supreme Court has to choose whether to extend the logic of 2010’s Citizens United to allow a corporation to make a religious objection to a generally applicable law.
How we got to the point where a for-profit corporation – not a church mind you – can lay claim to religious rights is a bit complicated. It all goes back to a legal fiction known as corporate personhood.
Generally, corporate personhood allows companies to hold property, enter contracts, and to sue and be sued just like a human being. But of course some human rights make no sense for a corporation, like the right to marry, to parent a child, or to vote. As Professor Elizabeth Pollman explains when it comes to Constitutional rights for corporations there is a hodgepodge: “corporations enjoy Fourth Amendment safeguards against unreasonable regulatory searches, but do not have a Fifth Amendment privilege against self-incrimination.”
If you’re a fan of the Colbert Report, “corporate personhood” might sound familiar. Stephen Colbert got a well deserved Peabody Award for his work educating the public about campaign finance laws with his lawyer Trevor Potter. However, Mr. Colbert’s verbal tick of saying that Citizens United granted corporate personhood is a tad misleading.
Citizens United did not grant corporations personhood. Corporations already had it. As lawyer David Gans has documented, despite the fact that the U.S. Constitution never mentions corporations, corporate personhood has been slithering around American law for a very long time. The first big leap in corporate personhood from mere property rights to more expansive rights was a claim that the Equal Protection Clause applied to corporations.
The 14th Amendment, adopted after the Civil War in 1868 to grant emancipated slaves full citizenship, states, “No state shall ... deprive any person of life, liberty, or property without due process of law, nor deny to any person ... the equal protection of the laws.”
We have the likes of former U.S. Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the 14th Amendment. He then left the Senate to become a lawyer. His Gilded Age law practice was going so swimmingly that Conkling turned down a seat on the Supreme Court not once, but twice.
Conkling argued to the Supreme Court in San Mateo County v. Southern Pacific Rail Road that the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. According to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”
