Monday, February 1, 2010
Black Letter of the Law
And the problem of False Equivalence.
Today I posted some things over at Glenn's Place that touched on some interesting parallel actions in Supreme Court rulings.
On May 10, 1886, for example, the Court handed down the Yick Wo v Hopkins (that Glenn referred to in his post today) which extended 14th Amendment protection to non-citizens, such as Yick Wo himself. That same day, they also handed down the infamous Santa_Clara_County_v._Southern_Pacific_Railroad ruling that extended 14th Amendment protection to corporations such as the Southern Pacific Railroad in its headnote, though that was not what the Court actually ruled in its decision on the case under review. That ruling essentially upheld lower court rulings that SPRR property in Santa Clara and Fresno Counties had been improperly assessed.
On December 18, 1944, the Court ruled in Korematsu v United States that Executive Order 9066 which ordered the removal of persons of Japanese ancestry from the West Coast was Constitutional. On the same day, the Court ruled in Ex Parte Endo that the Government could not continue to hold American citizens (such as the rounded up Japanese Americans in the camps established as a result of the execution of Executive Order 9066) once the Government itself conceded their "loyalty" -- which the Government had done. Consequently, beginning January 2, 1945, the internees were allowed to go home if they could, and the camps prepared to shut down. This occurred while World War II still raged in Europe and the Pacific, and FDR was very much still alive.
I also posted the entire text of the 14th Amendment and the holdings in Yick Wo v Hopkins and Santa Clara v Southern Pacific as they related to the 14th Amendment.
The point Glenn was making in his post is that the Constitution applies to citizens as well as non-citizens -- ie: all "persons" under the jurisdiction and/or authority of the United States of America, as declared by the Court in Yick Wo. The point I was making was that the Court was in an expansive mood that day and was extending 14th Amendment protection, perhaps inadvertently, to corporations (ie: fictional "persons") as well as aliens.
In like manner, the Court, feeling expansive, ruled in favor of the Government in Korematsu and against continued holding of "loyal" American citizens in Endo, in effect releasing the internees.
These expansive acts are forms of balance that the Court once engaged in fairly regularly, but which it appears to have avoided for quite a while. My argument is not that there are equivalences here but is instead that these important rulings should not be considered in isolation. They have a context, and that context is often missing in the discussion of them. Part of that context is an effort by the Court to find some kind of balance between competing interests. Ie: at least the perception of Justice.
In that light, it is of some interest that at the time Yick Wo was decided, Chinese immigrants were barred from citizenship. Yet the equal protection clause of the 14th Amendment, by the clear black letter of the law, applied to "any person within its jurisdiction," without the caveat that that "person" had to be a "citizen." Discrimination by race under the law or in the application of the law (in this case a San Francisco ordinance) was therefore clearly unconstitutional, and so the Court ruled.
Of course they would rule ten years later in Plessey v Ferguson that "separate but equal" accommodations were Constitutional... so you never know.
However, extending 14th Amendment protections to corporations, as they did in Santa Clara, seems quite a stretch, for it presumes that the status of corporate "persons" is identical at law to that of "natural persons." But that status had never previously been established, and in fact it had been previously denied, deliberately and with substantial consideration.
Corporations are not "persons" in the sense that the term is used in the Constitution. "Persons," "People," and "Citizens" are used in the Constitution to refer to "natual persons," ie: human beings.
Corporations are artificial creatures chartered by the State ostensibly on behalf of the People. Rights and privileges of corporations are purely a function of their charters and the People's governments which approve their charters, not of the Constitution.
Rights and privileges of natural persons ultimately derive from their status as human beings; the Constitution protects those rights and privileges against excess Government intrusion. Corporations are creatures of their charters as approved by the Government; they have no existence whatsoever outside that which has been provided them by charter and Government.
It's a false equivalence to assert that corporations are entitled by the Constitution to the same protections of the 14th Amendment as "natural persons."
Corporations have no Constitutional protection at all. A plain reading of the black letter of the law would lead one to believe that the Court erred in extending 14th Amendment protection to corporations. Correcting such an error will not be easy, but it's not impossible.
One approach, which I favor, is to avoid the false "either/or" alternatives. It is false to assert that corporations either have full protection of the 14th Amendment as a function of their "personhood" or they have "no rights at all."
As creatures of their charters and the approval of the Government, they have such rights and privileges as the People shall determine, not the rights and protections guaranteed to the People by the Constitution.
This is not a hard concept except to those who would make it hard.
Corporate "personhood" is now deeply ingrained in law, and it is said to be difficult at this point to dis-"person" corporations without overturning a huge body of law concerning corporations. Yes, it is inconvenient and potentially costly, but it is not impossible.
The point is to restore corporate rights and privileges to those which can be determined by the People, through their elected bodies and statute law, not the Constitution.
In fact, "personhood" may (or may not) be sustained by the People, but it should be up to them, not an offhanded comment by a justice who then rules on something else entirely.
Another false equivalence that enters the discussion is that between Government on the one hand and corporations on the other. sysprog asked, for example, whether I thought it was desirable to "leash and regulate" governments as well as corporations. Simply put, they are not the same, and there should be no confusion and no equivalence between them. The premise of the question is wrong. Government is instituted by the People to protect the Constitution and the rights therein. Corporations are created by charter (of their shareholders/members) and approved by Government to produce a profit for their shareholders or a public good in the case of nonprofit corporations.
sysprog followed with more questions based on false premises: should corporations be subject to criminal and civil liability like natural persons or should only natural persons be subject to them? Should corporations be subject to due process? Am I arguing that corporations have no rights at all?
No, I'm arguing that corporations should have such rights and privileges as are determined by the People to be in the People's interests.
Corporations are created by their charters under the authority and regulation of the Government as the People see fit. There is no inherent or Constitutional protection for them. But that does not mean corporations necessarily have no rights.
It's simple. And this was not at all difficult to fathom prior to 1886 and the headnoted provision of 14th Amendment protections to corporations.
Black letter of the law, people.
Black letter of the law.