Sunday, February 21, 2010


The American Civil Liberties Union betrayed its base when it filed an amicus  brief  in what became the infamous Citizens United decision by the Supreme Court.

On the ground that the First Amendment protects free speech even by bad guys, it supported opening the door for corporate control of our elections and elected officials.

The decision essentially held that, because corporations are legal persons,  imposing political contribution limits on them violates their first amendment right to free speech.

The First Amendment doesn't say anything about persons, except that "the people" have a right to peaceable assembly. Congress, it says, shall make no law abridging free speech.

The Fourteenth (civil rights) Amendment says:  "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The idea that corporations are "persons" within the sense of this amendment seems to go back to an 1886 Supreme Court case called Santa Clara County v. Southern Pacific.  There's not much in the decision itself to get riled up about; it's a boring tax case and the court ruled on behalf of the railroad without addressing the corporate personhood business.

However, before oral arguments began, Chief Justice Morrison Waite admonished the lawyers for both sides that "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution,  which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

This extraordinary statement was used by the court reporter, J.C. Bancroft  Davis, in the headnote for the case in the United States Reports.  Before he did so, however, he wrote the following to Chief Justice Waite:

"I have a memorandum in the California Cases Santa Clara County v. Southern Pacific &c As follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does."

The Chief Justice wrote in reply:

"I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision."

Headnotes for United States Reports, written by the court reporter, are intended to be summaries for lawyers of the decision and the main facts and arguments in a case.  In a 1905 case, U.S. v. Detroit Timber and Lumber,  the Court itself said headnotes are "not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision, prepared for the convenience of the profession."

I'm no lawyer, but I can read.  The Tinker to Evers to Chance basis for the 5-4 Citizens United decision is about as firm as quicksand. And that doesn't even take into account the bigger legal question: does money constitute "speech?"

I received my renewal notice yesterday for membership in the ACLU, along with a request for an additional donation to support its "important work." I told 'em to go pound quicksand.

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