Sotomayor not first Supreme Court Justice to question 125 year-old decision…

Guest blogged by Ernest A. Canning

February 8, 2011- As Vermont becomes the first state to consider a Constitutional amendment that would put an end to "corporate personhood", it is perhaps worthwhile to examine the historical context in which the concept arose and the forceful challenges to its validity that have been mustered by a minority of Supreme Court Justices.

Supreme Court Justice Sonia Sotomayor created a stir when, during oral arguments in Citizens United vs. Federal Election Commission, she not only questioned the validity of the corporate challenge to limits on campaign spending but questioned a legal doctrine which dates back to an 1886 decision, Santa Clara County vs. Southern Pacific Railroad Co. She observed that it was the courts who "created corporations as persons, gave birth to corporations as persons," and that "an argument" could be made "that that was the court's error to start with…[imbuing] a creature of state law with human characteristics."

Sotomayor, whose position was not included in Justice John Paul Steven's dissenting opinion in Citizens United — a dissent she signed onto — is by no means the first Supreme Court Justice to question the legitimacy of a long-standing doctrine of U.S. corporate law which has served to undermine the very fabric of individual liberty and democratic accountability, permitting wealth, power and control over mass communications to be concentrated in the hands of the privileged few.

Earlier dissents from Justices Hugo Black and William O. Douglas not only challenged the legitimacy of extending to corporations Constitutional rights intended to protect the living, breathing human beings who make up our nation's citizenry but exposed the hypocrisy of the activist, Federalist Society Justices, who claim to be "strict constructionists," but who are, in fact, as we've reported previously, part of a corporate-funded, counterrevolution in law…

Judicial activism, corporate 'personhood' and the Gilded Age

As described by Kevin Phillips in Wealth and Democracy, the period after 1865 is often referred to as the Gilded Age.

Contrary to laissez-faire and Social Darwinist mythology, during the latter half of the 19th Century, Phillips writes, "corporations and railroads took their favors — enormous ones that helped produce the world's biggest fortunes — by all but seizing key portions of federal and state governments. The legitimate encouragement of industry and technology aided U.S. growth and democracy; these political usurpations fundamentally threatened it."



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