Tuesday, November 30, 2010

James Madison Would Approve?

Personally, I have always been fascinated by history, especially history of the founding of our country. So, in reading Citizens United v. FEC, 130 S.Ct. 876 (2010), I wondered how the decision would comport with the ideas behind the Constitution, especially those of the Federalists, like James Madison.

In the opinion for Citizens United, Justice Kennedy quotes James Madison's Federalist Paper No. 10 in support of the proposition that the government had "muffled the voices that best represent the most significant segments of the economy," i.e. corporations. Id. at 907. The Federalist Papers were a series published in New York newspapers during the Constitutional Convention in 1787. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 268 (1986). Although the series was signed "Publius," the papers were actually written by James Madison, Alexander Hamilton, and John Jay and constituted the Federalist point of view. Id. The papers are now widely considered as the "final eloquent exposition of the United States Constitution, and . . . serve as an aid to the courts, to Congress and the President." Id.

The opinion cites a Federalist Paper written by Madison when stating, "[f]actions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than disease. Factions should be checked by permitting them all to speak and by entrusting the people to judge what is true and what is false." Citizens, 130 S.Ct. at 907 (internal citations omitted). After this decision, however, many scholars now debate whether the determination that the prohibition on corporate independent political expenditures as an unconstitutional outright ban on speech of corporations is truly what the framers of the Constitution, like Madison, who was the primary drafter of the Bill of Rights, intended.

Although we can only speculate, it is probably safe to assume that the modern corporation was not envisioned by the drafters of the Constitution. That fact alone, however, does not necessarily make the extension of its provisions void to such organizations. The Constitution is like no other document of its type in history in that it has been malleable to modern expansions of traditional ideas, such as the corporation. But was the idea of corporate person-hood and the idea of corporate freedom of speech really intended by the drafters of the document itself? The best answer to this question is like most others in law, it depends.

Some scholars point to the fact that Madison fought the establishment of a national bank as evidence of his aversion to this principal. Others also point to his warning of corporate interference in politics, calling corporations necessary evils that require proper limitations. Still others, like Justice Kennedy, point to the Federalist Papers as evidence to support the proposition that fractions are necessary to our governments and should be given protection, even if coming from a corporation. Citizens, 130 S.Ct. at 907. Like the Constitution itself, however, the Federalist Papers and other writings of the founding fathers lend themselves to interpretation, which is what makes them still relevant but also frustrating when looking for a solid answer. The writings often take the interpretation of the reader.

Arguably, the more important question is how does this important decision impact the future and the rights that corporations are given moving forward; however, a look to the past may give us direction for the future. Is a corporation now a citizen?


  1. I am not sure that a corporation is or should be treated as a person in every context. However, in light of Citizens United I feel more certain now than ever before corporations are treated as persons in regards to certain issues. In reading Citizens United, along with other Supreme Court decisions, I feel that it is safe to say corporations have been treated as persons for decades now. If anything, Citizens United went even further by stating that corporations are treated the same as persons within the context of the First Amendment.

    Justice Powell stated in a previous decision that the "[i]dentity of [the] speaker is not decisive in determining whether speech is protected; corporations and other associations, like individuals, contribute to the discussion, debate, and dissemination of information and ideas which the First Amendment seeks to foster." The main goal of the First Amendment is to foster an open forum for the dissemination of information and if one does not feel that accurate information is being broadcast to the public, his or her recourse is more speech, not less speech. There are certain types of proscribable speech and if a corporation engages in one of those types of speech then that speech may be prohibited. I am quite aware of the arguments stating that corporations are not persons such as the inability to vote.

    It does not matter that the right-to-vote is impossible for corporations. The fact is that the decade old image of corporations and corruption in politics has been re-evaluated by the Supreme Court and the corporate “person” emerges with a much more positive connotation.

    Since the Supreme Court has decided that corporations do receive First Amendment protection I agree that the more important and the next issue will be to see how far the court will extend other constitutional law doctrines. Some may argue that corporations have already benefited from a far more sympathetic current court. There may well be heavy litigation in the future to test the boundaries of the current court. However, I am certain that corporate lawyers will be testing their new found constitutional equality in years to come.

  2. It seems as if corporations have greater rights than individuals in instances such as this. What is stopping people from incorporating for the purpose of contributing to political campaigns?

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  4. I would tend to agree that in certain circumstances it seems as if corporations have greater constitutional protections than individuals. However, I feel that it is unlikely that people will begin to incorporate just to receive heightened constitutional protections regarding political campaigning. The pure amount of administrative work that is required to incorporate seems would be an adequate deterrent from allowing this issue to arise. Although it is a valid point and not out of the realm of possibility.

    A further comment to the original post is also that although the original drafters of the constitution may not have envisioned corporations in their present state and given that the constitution has been proven to be quite malleable throughout its existence I feel that it is quite a leap to say that the original drafters would not agree with the present day application of the First Amendment to corporations. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech," Justice Kennedy wrote for the majority. "[T]he government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations." The preceding statements taken out of the majority's opinion in Citizen's United only seem to strengthen the argument that the original drafters would approve of the current application of the First Amendment as applied to corporations.