Citizens United decision confirms an old legal concept

A recent article reminded me of the controversy surrounding the “Citizens United” Supreme Court decision. The author blamed that decision on “an-out-of-control Supreme Court.” He argued that because the “corporate entity” was created by the government, it is not endowed with any right of free speech, and can’t operate like it does. This argument could contain some merit, especially if “corporate personhood” were a new concept – but it’s not.
The 2010 “Citizens” decision declared that corporate election spending is Constitutional, and now Democrats are promising to reverse it. But because it’s a Constitutional issue, it won’t be reversed easily or quickly. Before you decide which side you are on, please consider some additional perspectives. There’s more to this issue than one might expect.
This is a First Amendment “Freedom of Speech” debate. The First Amendment states: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . Let’s start there and find out more.
Those First Amendment words make no distinction between corporations and individuals, but even if it had said “person,” the controversy wouldn’t disappear. The “Citizens” decision affirms that freedom of speech, including political speech, also applies to corporations. Some argue that the First Amendment Freedom of Speech provision actually strengthens the Constitutional protection of Freedom of the Press.
Many opponents of “Citizens” seem to imply that corporate rights and the concept of “corporate personhood” are of recent origin. It’s actually a very old legal concept. In fact, its origins go back to our founding and earlier, to the laws of England. Alexander Hamilton observed that to “erect a corporation, is to substitute a legal or artificial to [for] a natural person”—i.e. an “artificial person.” Justice James Wilson (nominated in 1789) stated that “artificial persons have been formed to promote and perpetuate the interests of commerce, of learning, and of religion.” And an early entry in the U.S. Code specifies that corporations are included in the reference to “person.”
Our Founders weren’t in total agreement about too many things, and this is one of them. Nevertheless, I believe there’s adequate early evidence for one to assume there was “Founders’ intent,” in general. What this really means is that Americans, when collectively coming together in corporations, unions, or non-profit organizations, don’t give up their Constitutional rights—speech, press, and protected property ownership for example.
I believe careful analysis actually shows that the Supreme Court followed an old legal precedent and the Constitution, and did not create a new interpretation. My “layman’s opinion” is shared by many others and the phrase “whether we like it or not” seems appropriate to accompany this conclusion.
This is a Constitutional debate which will certainly linger for a long time to come.