Great start for Sotomayor

Her questioning of corporate "personhood" is a positive sign on a fundamental fight.
Her questioning of corporate "personhood" is a positive sign on a fundamental fight.

Corporations are artificial life forms, created and chartered by states. But some believe these life forms have all the rights, and more, of actual citizens. Yes, we live in Frankenstein's country.

And it gets worse. Some argue that corporations are, in effect, people, protected by the Constitution but also blessed with all the special rights of corporations, such as limited liability, perpetual existence, no need to act as responsible citizens but legally mandated to act only in their own self-interest. If we were smart, we individuals should probably all incorporate.

The sad state of affairs regarding corporate power in this country has long been troubling, and is currently being tested at the U.S. Supreme Court, which is deciding whether or not corporations have First Amendment the free speech rights of individuals. The right-wing of the court (Scalia, Thomas, Kennedy) tends to think they do. Granting such a right could hamper, perhaps eliminate, the public's ability to limit corporate campaign and political spending or speech, or even tobacco advertising. Campaign laws like McCain-Feingold could be thrown out the window.

One of the key precedents was the decision of the Gilded Age court in the 1880s to grant "personhood" to corporations. Determining the reach of that personhood is one of the issues at play in a case before the court now. During oral arguments last week, new Supreme Court Justice Sonya Sotomayor surprised some observers by raising questions about whether this 19th century case should be revisited. According to the Wall Street Journal:

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

Even a mild, non-committal expression of a possible willingness to go back and revisit corporate personhood is surprising, provocative, and welcome. Sotomayor is unlikely to prevail in such a review with the current court make up, in fact, things are more likely to get worse for people and better for corporations in the short term. But it does suggest that Obama's pick won't be shy about tackling some of the big issues facing the court.

The Supreme Court needs another William O. Douglas, the Washington-bred justice and civil libertarian who also questioned corporate rights and power. It would be great if Sotomayor could move the court back to an understanding that corporate entities are not the same, or better, than you and me.


Please support independent local news for all.

We rely on donations from readers like you to sustain Crosscut's in-depth reporting on issues critical to the PNW.


About the Authors & Contributors

Knute Berger

Knute Berger

Knute “Mossback” Berger is Crosscut's Editor-at-Large.