June, 2022
Washington — It was a right not mentioned in the original Constitution or the Bill of Rights. It was not considered when the Fourteenth Amendment was adopted in 1868. There is no history and tradition behind it. The Supreme Court's jurisprudence on the subject dates only from the 1970s. What is it?
The answer is not abortion, the Court's ahistorical analysis in the Dobbs decision notwithstanding.
The answer is unregulated corporate political contributions, determined in 2010 by the Court in the Citizens United case to be accorded the same free speech rights as human persons.
If Dobbs overrules Roe on abortion, according to so-called originalist interpretations, then Citizens United on corporate contributions should likewise be overruled, because the originalist case for overturning it is actually stronger.
Here is an academic treatise on the history of the dubious right of unregulated corporate political speech:
[W]hen the First Amendment was ratified in 1791, we find that business corporations were understood to have the exact opposite relationship to society as Lockean-Jeffersonian human beings. Whereas human beings were endowed with inalienable rights that society could not take away, corporations had only such rights as society chose to give them, as illustrated by Chief Justice Marshall’s iconic decision in Trustees of Dartmouth College v. Woodward. In 1791, corporations had to be specially charted by legislatures and were bound by the ultra vires doctrine to pursue only the ends for which they were chartered. Based on this history, we see no basis to contend that business corporations were thought to possess the same speech rights as human beings and that society could not restrict their ability to participate in the political process....
[W]hen the Fourteenth Amendment was ratified in 1868 to see if the understanding that corporations were fundamentally different from human beings had changed. Although by that time the movement toward general chartering of corporations had emerged, the historical understanding of the corporation’s relationship to society remained the same, and corporations were still subject to the ultra vires doctrine and other tight restrictions on their scope of operations. Though the law had recognized that corporations’ property rights had to be respected for them to function as intended, corporations were not accorded the liberty rights, such as speech, of individuals. And stockholders used the ultra vires doctrine to restrict corporate political and charitable spending. Likewise, as soon as corporations began to involve themselves in the political process, legislative regulation of the conduct emerged with no concern about whether those restrictions were inhibited by the First Amendment. As a result, we find no basis to conclude that the adoption of the Fourteenth Amendment represented a decision to accord corporations free speech rights akin to those of human persons...
[U]ntil the 1920’s, First Amendment law itself was largely undeveloped and it would not be until the 1970’s that the Supreme Court first examined the First Amendment implications of campaign finance laws.
The era of the drafting of the Fourteenth Amendment is of special interest. When I was a graduate student in college, I gave a seminar presentation on Roscoe Conkling, a disreputable character of the second half of the 19th Century who represented corporate interests before the Supreme Court. He told the Court an incredible lie about what happened at the drafting of the Fourteenth Amendment, how he personally saw to it that corporations would be given the same liberties as natural persons. The story is well told in a 2018 article in The Atlantic.
