Friday, November 22, 2013

Why Should Business Corporations Have Rights?

A colloquy on reddit yesterday got me thinking about the deep differences in world view among the Supreme Court justices, past and present. Holmes worked out a personal philosophy that he called "mystical materialism," which he compared to Spinoza's, minus the deductive proofs. As far as I can tell it was an atomistic materialism, but one in which he accepted the reality of things like consciousness that were not yet explained by materialist science . He championed Kant against Hegel in the intellectual debates of his day, and so one might say he was a materialist who accepted that many of the features of the world are features of our perceptive apparatus that we cannot escape. He was always trying to hear the "clang behind phenomena" that he felt certain was there. 

Am I too far into the weeds? What I am working toward is the lifelong quarrel he conducted with German idealist philosophy. Who now would bother making fun of Hegel? He doubted the objective existence of human rights, or indeed any moral principles--the "natural law" to which many people still refer. He was particularly rude about suggestions that natural law should trump positive law--the enactments of legislatures and the decisions of judges.His materialism, which he shared with his closest intellectual friends, contributed to his rejecting constitutional textualism or originalism. The Founders undoubtedly accepted the reality of natural rights and other moral principles (although it is not clear how much these are embedded in the Constitution), but Holmes cheerfully denied that the text of the Constitution could trump the more pragmatic decisions of the Supreme Court.

This larger quarrel would come up in cases where natural rights to property, or the objective existence of a business enterprise, were at issue, and in those cases Holmes' materialism seemed appropriate. He insisted that property rights were just a summary designation for past decisions of courts concerning legal conventions, and so could be abolished or altered at will by state legislatures. He thought natural resources were not inherently subject to property rights or articles of commerce, and so could be protected from commercial exploitation. And so forth. Which brings us to the subject of yesterday's conversation: how would Holmes respond to the Citizens' United case? The curious doctrine that business corporations had due process rights to their property, and even to their expected earnings, which they could assert in federal court, as we know first appeared in the Santa Anna Railroad Case not long after the Fourteenth Amendment was adopted. I don't recall an instance in which the personhood of corporations came before Holmes' Court, but it sounds like the sort of thing he rejected. The present justices have got to the point, however, where business corporations are allowed standing in federal court, and will be heard this term to assert their supposed right to religious freedom. The case is Sibelius v. Hobby Lobby Stores, Inc. and the TEnth Circuit has already held that if corporations have freedom of speech protected by the First Amendment, why not freedom of religion? The case arises under a statute, it is true, but why imagine that Congress would commit such a folly? We undoubtedly will hear learned arguments that a corporation was a distinct person with rights at common law, and the statute must be construed accordingly. Citizens United is a mere bagatelle compared to these new assertions. Respect for precedent notwithstanding, I think Holmes would be. . . well, bemused.