Wednesday, March 26, 2014
What would Holmes say about yesterday's dispiriting oral arguments in Hobby Lobby and associated cases? The justices seem to be inclined to accept the argument that a federal statute, the Religious Freedom and Restoration Act, can be interpreted to extend religious freedom to business corporations, allowing their to refuse to pay for health insurance for their employees. The statute applies to "persons," and it seems that the Court now understands that word to mean, in every context, an entity that for most purposes (except for voting or holding office) has the rights of a human being. Sigh. This all begins with the Fifth and Fourteenth Amendments, which say that no "person" may be deprived of property without due process of law. This has always been understood to protect the property of business corporations from arbitrary confiscation, corporations having been considered by the English common law to be artificial "persons." The Supreme Court in recent years, partly to remedy its failure to give substance to the constitutional "privileges and immunities" of citizens of the United States, has imported fundamental rights enumerated in the first eight amendments into the realm protected by the "due process of law" clauses of the Fifth and Fourteenth Amendments. Consequently, human rights, and not only property rights, are protected and may not be enfringed without due process of law. It makes no sense, however, to read this modern exercise in interpretation into the old common-law concept of a property-owning corporation. Neither the Congress that approved the amendments, nor the Congress that wrote RFRA, could have meant to extend human rights to business corporations simply by using the word "persons."
Corporations today are creatures of state law, chartered for specific purposes and authorized to carry out only the purposes for which they are created. Metaphysical notions embedded in the common law of fifteenth century England should be forgotten. The common law, Holmes long ago reminded us, is not a "brooding omnipresence in the sky," it was a set of ideas derived from the decisions of English judges. The Queen of England is a corporation sole, under the English common law, so that the existence of the monarch as the embodiment of the nation is not interrupted by her death. But the corporation sole, the metaphysical extension of a human being, does not exist in American law, and certainly does not exist in state corporate licensing laws.
Business corporations have the right under state law to own property, the Fourteenth Amendment protects that right, and Congress may enforce the amendment through appropriate legislation. But a business corporation does not have human rights, and it is absurd to think that Congress meant to confer religious freedom on a mechanism devised for the conduct of business. A corporation does not have a conscience, and does not have a right to practice a religion unless that is a purpose for which it is chartered. Religious organizations are exempt from Obamacare requirements that conflict with their purposes. The owner of a business has no claim to impose his own beliefs on those subject to the authority of his business corporation, a convenience he may use to limit his liability and to aggregate capital, but which he may not use to practice his religion, or impose it on the corporations employees.