Liberals peddle debunked myths about corporate personhood

Liberals peddle debunked myths about corporate personhood

Progressivism is essentially a religion based on a set of shared myths and boogeymen. True believers cling to those myths no matter how many times they are debunked by economists, legal historians, or other experts. These shared myths create a sense of belonging and moral superiority to others who don’t share those beliefs.

A classic example of this is the myth that the Supreme Court’s 2010 Citizens United decision created the concept of corporate personhood, giving corporations constitutional rights for the first time. In reality, corporate constitutional rights were recognized by 1819, if not earlier. Yet, progressive op-ed writers repeat this myth even after its fallaciousness has been pointed out over and over again in their own newspapers, by experts who know more about law and history than they do.

In a recent op-ed debunked by people who actually know something about the law, The New York TimesTimothy Egan claimed: “In 2010 [referring to the Supreme Court’s Citizens United decision] five judges created the notion of corporate personhood.” As legal writer Damon Root, who has written a book about the Supreme Court, notes:

In fact, the U.S. Supreme Court has accepted the notion of corporate personhood in constitutional cases dating back more than a century. In its 1897 decision in Gulf, Colorado and Santa Fe Railroad Company v. Ellis, for example, the Court said that it was “well-settled that corporations are persons within the provisions of the Fourteenth Amendment.” Citizens United accomplished several things, but creating the notion of corporate personhood was simply not one of them.

Over the years, multiple letters to the editor in the Times by lawyers have pointed out the long history of corporate personhood, citing relevant Supreme Court decisions. But Times editorialists continue to ignore them, apparently without even bothering to read the Supreme Court decisions they cite.

In The Atlantic, former ACLU board member Wendy Kaminer wrote years ago about The New York Timesrefusal to correct repeated falsehoods in its editorials about the Supreme Court’s Citizens United decision, and its decision to repeat those false claims even after their falsity was pointed out by lawyers and a constitutional law professor.

Critics of the Times like Root actually understate the case. The recognition that corporations have constitutional rights long predates even the late 19th century line of cases cited by Root, which was discussing whether corporations qualified as “persons” for purposes of one specific provision of the Constitution—the Fourteenth Amendment, which was ratified in 1868.

The Supreme Court first recognized corporate constitutional rights much earlier than that, in its decision in Dartmouth College v. Woodward (1819). In that decision, the Court ruled in favor of an incorporated entity’s constitutional challenge under the Contracts Clause and expressly rejected the idea that incorporation strips entities of rights or “transfers to the government any new power” over them. As the current Wikipedia entry for this ruling explains: “It is in this case and not Citizens United v. FEC in which the Supreme Court first recognized corporations, as associations of people, may exercise many of the rights of natural persons.” Nor is the idea that corporations have First Amendment rights in any way new, as decisions like First National Bank of Boston v. Bellotti (1978) and New York Times Co. v. Sullivan (1964) illustrate.

Corporate personhood is not an invention of the current Supreme Court, or even a peculiarly conservative notion, as I explained at length in 2009. As I noted in the Times in 2009: “[M]odern human-rights charters protect corporations. The European Convention on Human Rights, for example, allows ‘any person, nongovernmental organization or group of individuals’ to seek redress, leading to many court rulings in favor of companies, like Dubus S.A. v. France.” (Alas, this was in a letter to the editor buried amidst letters from angry leftists claiming that the Supreme Court had recently made the “‘discovery’ that the Constitution grants rights to business institutions.” I received angry emails in response to my letter, calling me a liar. They apparently did not read the court rulings I cited, which proved my point.)

Confronted with these historical realities, progressives simply ignore them, viewing the letter writer who points them out as a conservative, who is thus automatically a liar or ignoramus. Although the Times prints moderate or conservative columns occasionally to create the facade of balance on its editorial page, it ignores facts in them that contradict Progressive mythology. Times editorial page editor Andrew Rosenthal once even argued, “The problem with conservative columnists is that many of them lie in print.”

I have a Harvard law degree, and have worked on landmark Supreme Court cases, but over the years, I have been dismissed as an ignoramus or liar by New York Times staff, even when I furnish them with documents proving what I have said.

I have previously written about The New York Times’ failure to correct repeated falsehoods in its coverage of the Supreme Court’s 2007 Ledbetter v. Goodyear decision (which you can find at this link). Times reporters like Linda Greenhouse made it sound like the plaintiff in that case, Lilly Ledbetter, had been arbitrarily prevented by the Supreme Court from suing despite only recently learning of the pay discrimination around the time she retired. But this is untrue, as I explain in this law journal article. And as I explained in The Washington Post:

In reality, Ledbetter knew for years that she was being paid less, as she made clear in her deposition. When she was asked, “So you knew in 1992 that you were being paid less than your peers?’ she answered, “Yes, sir.

[…]

[T]he Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. indicated that she did know. In footnote 10 of its ruling, the court pointed out that Ledbetter had not even claimed in court that she did not discover the discrimination until the deadline for suing had passed. As it explained, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . . . Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”

When I brought these indisputable facts to the attention of the Times, its senior editor, Greg Brock, simply ignored what I had to say, along with the relevant portions of the Supreme Court’s decision that contradicted the Times’ coverage, claiming I must be wrong because the Times had said otherwise.

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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