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Sunday, April 18, 2010

John Roberts is ignorant of history
Posted by Jill | 6:40 AM
This comes to us via Doug over at Balloon Juice, and it's absolutely worth your time. Justin Fox of Harvard Business Review recently sat down with Brian Murphy, a history professor at Baruch College, to talk about the Founding Fathers' record and writings in regard to corporate personhood:
A couple months ago the Supreme Court ruled that restricting corporate political spending amounted to restricting free speech. In this view, corporations are pretty much equivalent to people. Would that have seemed reasonable to the Founding Fathers?

In a word, no.

I read this opinion carefully — I'm trained as a historian, not a lawyer. Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It's lovely prose, but as a matter of history the majority is simply wrong.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

So even as this generation of Americans became comfortable with the idea of using the corporate form as a way to set priorities and mobilize capital, they did their best to make sure that those institutions were subordinate to elected officials and representative government. They saw corporations as corrupting influences on both the economy at large and on government — that's why they described the East India Company as imperium in imperio, a sort of "state within a state." This wasn't an outcome they were looking to replicate.

So much for "original intent." But then, I don't think anyone to the left of Pat Buchanan had any illusions that John Roberts was anything other than a hard-right ideologue who doesn't give a flying fuck about what's in the Constitution or what the Founding Fathers' intent was. His agenda is Of the Corporations, For the Corporations, By the Corporations.

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3 Comments:
Blogger heydave said...
OMG! as the kids say.
Shocked, I'm shocked! as I might say.

But... this would make Roberts one of them there radicalizing activistic judges!!1!

How can that be?
4/18/10, 11:33 AM  
Anonymous CC said...
The term "activist judge" mainly applies to liberal-leaning justices so as to show that their stances are supposedly out of tune with the majority of the people.
4/21/10, 9:38 PM  
Blogger The Sailor said...
Close CC, but 'activist judge' is when any wrongwinger disagrees with a verdict.

'A strict constitutionalist' is when any wrongwinger agrees with a verdict.

Even repubs appointed to the bench generally understand the law and apply it correctly.

Depending on whether the like the decision is how the wingers spew.
4/27/10, 12:46 AM  
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