Posts Tagged ‘hobby lobby’

Q&A Roundup Part 1

Friday, September 18th, 2015

I get a lot of questions over at my comic and on Tumblr, and try to answer most of them as best I can. Some get answered privately, but some are out there for all to see. It occurs to me that there may be readers of this blog who may not want to be seen reading a comic, or be caught dead lurking on Tumblr. Fair enough. But my ego’s strong enough that I think there’ve been a few exchanges you might be interested in.

So I’m basically going to just cut-and-paste this and the next few posts from stuff I’ve already written in response to questions elsewhere.


First off, I love your comic and your blog. Reading your analysis has made me feel more informed when I read the results of court cases or existing law.

Second, I have a question for you. From what I understand, many of the initiatives meant to overturn Citizens United ( have as part of their text “human beings, not corporations, are persons entitled to constitutional rights.”

Am I correct in reading this as overthrowing Dartmouth College v. Woodward ( and invalidating contracts held by corporations? Would this mean that contracts of employment would also be invalidated?

I tried looking through your blog to see if you’d written about Citizens United before, but didn’t find anything.

Thanks, I really appreciate it!

As for the Citizens United issue, the phrase “human beings, not corporations, are persons entitled to constitutional rights” flies in the face of a lot of constitutional law. Dartmouth v Woodward was perhaps the beginning of corporate personhood, but there’s much more to it than that.

Corporations are fictional persons created by the state, and in order for that fiction to make sense the courts have recognized that corporations have to have at least some of the protections our Constitution grants to individuals against the government. But not all of them. Importantly, they are not “citizens” for the purposes of the Fourteenth Amendment (the big one when it comes to whom the Bill of Rights protects). They cannot vote. They don’t have the right against self-incrimination under the Fifth Amendment. They don’t have “personal” rights that human beings would have, such as the right to get married, to travel, to run for office, to sit on a jury, etc. The Privileges & Immunities Clause doesn’t apply to corporations, nor do they have the right to Liberty that is protected by Due Process.

The difficulty is that the courts really haven’t given us much guidance on what rights can apply to corporations and which belong strictly to human beings. When they say a corporation has a right, the reasoning usually boils down to “because we said so.”

If you look at all the various constitutional rights, some may seem obviously personal and some may seem obviously applicable to corporations, but there’s a lot of gray area that’s not so obvious. That’s why reasonable people differ. And that’s why “because we said so” case law only breeds frustration. Citizens United and Hobby Lobby are only the most recent instances of frustration and disagreement. Until the courts come up with an underlying principle to guide their jurisprudence, there’s only going to be more.

In a case like Hobby Lobby, you could reduce the confusion and frustration by limiting a corporation’s standing to sue. In Hobby Lobby, for example, the issue was that the corporation’s human owners didn’t want to have to do something. Hobby Lobby kinda sued on their behalf. But you can’t sue on someone else’s behalf. To have standing, you yourself had to be harmed. The individuals should have tried to enforce their own right not to be forced into doing something, rather than the corporation saying it shouldn’t be forced to do something its owners didn’t like. Then you don’t have to worry about whether the corporation is “closely held” or whether it can practice a religion or what have you.

Still, that doesn’t do much for a case like Citizens United. There, the corporation would have been harmed by not being able to support candidates and policies that could affect its bottom line. It has standing, and the issue is whether the government can prevent it from supporting candidates.

Some say the corporation should not be allowed to do that, because it amplifies the support of its shareholders – they can all support a candidate individually one time, and then a second time in the aggregate. If that is the principle, then corporate taxation should go out the window. The shareholders are already being taxed once on their income, and taxing them a second time in the aggregate violates this ideal.

Some say the corporation simply shouldn’t count as a person at all. But that principle would also mean a corporation could not be sued or held criminally liable for its acts – something very few who profess this principle would like to see. Generally, those who want to abolish corporate personhood also want to be able to hold corporations liable for their misconduct and even their mistakes. You can’t have it both ways.

What seems to make the most sense to me is to say yes, corporations are fictional people, and yes, in order to function they need certain rights. And we can pick and choose which rights apply and which don’t. BUT, in so doing, we don’t have to say those rights apply to corporations in the same WAY that they apply to people.

There’s no reason (other than judicial laziness) why rights couldn’t be applied to corporations differently than for humans. If allowing corporations to donate to politicians leads to unwanted distortions of our politics, there is no reason why we couldn’t limit the corporate right in such a way as to minimize those distortions. The First Amendment right to fund political speech doesn’t have to work exactly the same way as it does for humans. The corporation is a creation of the state, after all, and the state can fiddle with it without harming any actual citizens.

A simple guiding principle could be that a corporation’s rights can never outweigh the rights of human beings, and if the protection of a corporation’s rights would give it greater weight than humans then that protection would have to give way. Sort of a “your right to swing your fist ends where my nose begins” analogy, with the added sense that humans outrank fictional entities. You’d still have plenty of wiggle room and gray area in which to draw lines, but principled jurisprudence would do away with much of the unpredictability and frustration our “because we said so” case law has created.

Anyway, that’s my quick two cents off the top of my head. Better stop now before I get in too deep and start spending hours researching policy arguments and case law to support what I’m saying.