Nexus: Chapman's Journal of Law and Public Policy

In the discussion of Citizens United, those disfavoring the decision often quote Justice Stevens dissent. In a 5-4 ideologically split decision, it is not uncommon to have considerable discussion after the decision, with those favoring the dissent latching onto an emotionally powerful statement. It is uncommon when the conservative wing of the court is in the majority supporting free speech, and the liberal minority coming out against it. The liberal wing probably got it wrong, as even the American Civil Liberties Union filed a brief in support of Citizen’s United’s position. At least the ACLU is ideologically consistent. Back on topic, the particular parenthetical citation those in favor of the dissent are particularly fond of quoting appears below:

Trustees of Dartmouth College v. Woodward , 4 Wheat. 518, 636 (1819) (Marshall, C. J.) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”)

I found this powerful support indeed. So powerful, I decided to read the entirety of Chief Justice Marshall’s opinion in the case. My findings cut into my esteem for Justice Stevens, which was not an entirely happy result. I hear of unsavory lawyers quoting portions of opinions out of context all the time. In fact, I’ve seen it myself on a few occasions. It’s bad, and I don’t know if they assume that no one will check on their citations, or if they think that if they do, those checking will not go on to read the entirety of the opinion. I never dreamed this practice might extend to the Supreme Court. The fact that it did on this occasion might indicate a sloppiness, or straining to get to a conclusion that the law just doesn’t support. Justice Stevens is no stranger to this, as anyone who suffers through his dissent in D.C. v. Heller knows.

First, I want to state that the parenthetical from his dissent is facially correct with no misquotes, but it does stop short of quoting the entire sentence. As a general proposition, not quoting the entire sentence is not quoting the entire thought. At any rate, you can decide for yourself, the entire quote appears below, with the omitted portion italicized:

“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.”

Needless to say, if I were quoting this passage and attempting to support the minority’s position, I might be tempted to leave the last part out as well. It severely undermines the argument advanced by the minority that, because a corporation is an artificial being, it should have no constitutional rights. This puts us on shaky ground by itself, but, if we read the entire decision in context, it gets even worse. We find that in actuality, CJ Marshall thinks that a corporation is just a vehicle for immortality, were individuals, over time, may associate and then act as an individual:

“Among the most important [properties of corporations] are immortality, and, if the expression may be allowed, individuality -- properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual.” Id.

CJ Marshall clearly believes that when corporations act, they do so as a single individual. Justice Steven’s argument in his Citizens United dissent that the founders had no trouble distinguishing between corporations and individuals simply gets no support from Dartmouth, even though it purports to. Marshall, in his capacity as a founder, and, arguably, or more than arguably, the most influential Chief Justice in Supreme Court history, mixes corporations and individuals in there roles rather readily in Dartmouth. This at least severely hurts Justice Steven’s argument. In my opinion, the wound is fatal at this point, but, in true ginsu knife fashion, there is more.

If, as CJ Marshall writes, a corporation acts as an individual, and has the properties incidental to its very existence, then it should have the rights of an individual. At this point in our proceedings, Justice Steven’s supporters might hope that CJ Marshall left that question open, but, alas, CJ Marshall closes that door in the following passage:

“Because the government has given it the power to take and to hold property, in a particular form, and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied? This principle has never been asserted or recognised, and is supported by no authority.” Id. at 637.

Lo and behold, CJ Marshall takes judicial notice of the corporation’s right to hold property. We do know for a fact that property rights were very important to the founders. The Fifth Amendment protects such property. With other rights incidental to existence, or should be say, endowed by their Creator with certain unalienable rights, might very well come the freedom of speech. It is really not much of a leap to go from 5th Amendment to 1st. In fact, if the context were 14th Amendment incorporation, the same liberal wing would likely be rushing to the conservative wing’s majority. Certainly, that is what history shows.

In the end, much of the vitriol in support of the dissent in Citizens United is likely misplaced. As Ben Ginsburg reminded us in his keynote, it is not Citizens United, but Buckley v. Valeo 424 U.S. 1 (1976) that holds campaign spending is a form off political speech, and as such, Congress may not limit it. To think that citizens assembled as corporations suddenly lose their right out to have the liberal wing shouting about the right to peaceably assemble. However, we hear not a peep about that. I can only conclude that it is the group, and the likely ideals that group holds, that is a problem for the liberal wing. Anyone who has taken a constitutional law course knows you can’t limit speech based on who is speaking.

Really, my take on Citizens United is this. Liberals are afraid of corporations spending money on issue ads in elections. Most everyone remembers the Swift Boat Veteran’s for Truth ads from the 2004 presidential campaign. They were very effective. What most people don’t remember is that the conservatives, including the SBVFT, spent considerably less money on ads than liberals, backed by George Soros’ moveon.org, in that campaign cycle. Maybe liberals believe that if corporations, well versed in marketing (Coca Cola, and Disney, anyone?) get involved, such ads will become devastatingly effective. If your ideas are strong, why would you fear the introduction of other’s ideas into the marketplace? Surely, if yours are superior, they will be held to be so by the majority in the end. Maybe it is just not what you say, but how you say it that is important (any married folks out there ever heard that one?) Finally, if we are worried that the electorate is so dumb that it will be swayed by flashy advertising without ideological substance, I would say: (1) welcome to the party, but you’re late, and (2) the root problem is definitely not Citizens United.

All this all leads me to two conclusions:
1) you can’t believe everything you read, not even from the Supreme Court, and 2) those who are upset about Citizens United might benefit from a break in the library for a little research into both the history of the founders and campaign finance law, coupled with a little soul searching.