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Citizens United, Corporate Personhood and the Constitution: CAC Releases Discussion Draft of New Report in Advance of Major Supreme Court Ruling

By Jack M. Balkin

As we await the Supreme Court?s decision in Citizens United v. Federal Election Commission, expected any day now, Constitutional Accountability Center (CAC) has continued to build on the scholarly research discussed in our brief filed with the Court: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics in this country.

The result of this work is this discussion draft, tentatively titled ?A Capitalist Joker?: Corporations, Corporate Personhood, and the Constitution, which we intend to release more formally in January as the latest installment in our Text & History Narrative Series. The text of our Constitution never mentions corporations and, as our narrative explains, this was deliberate: the framers wrote and the American people ratified the original Constitution, the Bill of Rights, and the three Civil War amendments -- the Thirteenth, Fourteenth, and Fifteenth -- to secure the inalienable rights of ?We the People? -- living human beings. Governments create corporations and give them special privileges to fuel economic growth, but with these special privileges come greater government oversight. Indeed, in the early 20th Century, the American people added the Sixteenth and Seventeenth Amendments to the Constitution, at least in part, to ensure greater governmental control over corporations and less corporate influence over our democracy.

The narrative traces the Supreme Court?s treatment of corporations from the Founding era Court under John Marshall, through the Lochner era, the New Deal, and up through the Roberts Court today. The narrative shows that while corporations have long enjoyed some protections under certain constitutional provisions, they have only been granted equal constitutional rights once ? in a series of opinions in the infamous Lochner era. Today, those opinions have been repudiated by liberals and conservatives alike and have been dismissed by the Supreme Court as a ?relic of a bygone era.?

Citizens United and its supporters are portraying their case as a fight over the meaning of the First Amendment, but this obscures the far more fundamental question that underlies their claim. In arguing that there is no difference between corporate speech and the political speech of We the People, Citizens United seeks a radical constitutional result -- one that the framers of the Constitution and the successive generations of Americans who have amended the Constitution and fought for laws that limit the undue influence of corporate power would find both foreign and subversive.

Given the Court?s forthcoming decision in Citizens United, we are posting the narrative as a discussion draft now on a number of legal blogs, with the hope of better informing the discussion of the case. We enthusiastically welcome your thoughts ? criticisms, oversights, suggestions, and more ? in the comments section below.

David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC). He is lead author of the discussion draft posted above, and co-author of the brief CAC filed, along with the League of Women Voters, in Citizens United v. Federal Election Commission.

This article is cross-posted at Text & History.

Full post as published by Balkinization on December 03, 2009 (boomark / email).