Will Senate Judiciary Committee members ask Judge Samuel A. Alito Jr. bedrock but nervous-making questions about corporate personhood that they did not ask–or were too timid to ask–of Judge John G. Roberts Jr.?
The questions spring from two primary sources:
A dissent by Roberts’s immediate predecessor as Chief Justice of the United States, William H. Rehnquist, that’s been widely–and conveniently–ignored for a quarter-century, even in the eulogies attending his death. It came in a 1978 Supreme Court case titled First National Bank of Boston v. Bellotti. By a vote of 5 to 4, the Justices decided that banks and business corporations–just as flesh and blood like you and me–have a First Amendment right to spend their money to influence elections.
Section 1 of the Fourteenth Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Before Harriet Miers made way for Alito by withdrawing her nomination, The Nation posted an article in which I urged Committee members to pose questions about corporate personhood to President Bush’s initial choice to succeed Associate Justice Sandra Day O’Connor.
Here are the same questions, somewhat revised, for Bush’s new nominee:
1. In his dissent in First National Bank of Boston, Chief Justice Rehnquist wrote of corporations: “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” Do you believe that corporate money in our elections poses “special dangers in the political sphere”?
2. The late Chief Justice went on to write: “Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist.” Do you believe that “liberties of political expression” are necessary “to effectuate the purposes for which States permit commercial corporations to exist”? Do you believe that money is speech? Or is it property?
3. The Chief Justice also said: “I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.” In plain words, he was saying that the state, having created the corporation, can regulate the corporation. Do you agree?
4. The Fourteenth Amendment was adopted in 1868, soon after the end of the Civil War. Was the “person” whose basic rights the Framers and the people sought to protect the newly freed slave? Was the person a corporation? Are corporations “persons born or naturalized in the United States”?