Note: This was my Constitution Day talk at Hamline.
“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we. But as the Hobby Lobby decision showed when the Supreme Court ruled that a corporation had religious rights, it is not always clear who or what the Constitution considers a person or a thing. One would think that it is simple–persons have rights, property does not. The reality is that throughout American history the constitutional line between property and personhood has been thin and contentious.
The text of the Constitution uses “person” 22 times. Many instances refer to eligibility to run for office such as president. But two places, Article I sections 1 and 9, refer to “other persons” when discussing slaves for the purposes of determining congressional representation, apportioning taxes and regulating slave trade. They and Indians were to be counted as “three-fifths” of white male persons when it came to representation.
While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship. In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom. Chief Justice Taney declared that while slaves were people the Framers did not intend them to be considered persons with rights. Using the Fifth Amendment that stated that no owner shall deprived property without due process of law, slaves were declared possessions of their owners.
Slaves and Native-Americans were not the only constitutional outcasts. As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the Continental Congress to “remember the ladies” when they met to declare independence. Yet in the 1875 Minor v. Happersett decision the Supreme Court acknowledged women to be persons and citizens yet nonetheless could be denied the right to vote. A decade later in County of Santa Clara v. Southern Pacific Railroad Company the Supreme Court simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status. For corporations, personhood grants them the right to free speech, and now free exercise of religion under Hobby Lobby. They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
Children are persons and at one time in cases such as Tinker v. Des Moines the Supreme Court declared that the Constitution protects them. Yet minors cannot vote and they face many legal restrictions on their behavior ranging from due process to smoking and drinking. Resident aliens are persons, but enjoy fewer rights than citizens. Undocumented individuals should enjoy no rights according to some. And since 9-11, it is not altogether clear what rights persons detained at Guantanamo Bay deserve.
The battle over personhood and property continues to perplex American society and constitutional scholars. Property is afforded significant constitutional protection and challenges to land use, eminent domain, and regulatory laws often assert ownership rights. The 1973 Roe v. Wade decision legalizing abortion declared that “person” did not include the unborn. Yet the Court did not say that the fetus was property, it was something in between requiring a balancing of its rights against the mother. A fetus is not a person but many states criminalize women who smoke, drink, or do drugs while pregnant. Six states have declared a fetus a person and North Dakota voters may do that this November. But declaring a fetus to be a person still will not resolve what rights it has.
Consider new frontiers in the battle for personhood. Animals are legally property but laws ban cruelty and maltreatment. Advocates urge that primates such as bonobos have a sufficient sense of intelligence, self-awareness, or pain that they are morally indistinguishable from humans and therefore should have their rights respected. Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
Other frontiers sound more science fiction. While the Supreme Court declared in its 2013 Molecular Pathology v. Myriad Genetics that human genes could not be patented, the case highlighted the increasingly fine line between human or person and artificial. The 1970s television show The Six Million Dollar Man featured Lee Majors as a human re-engineered with artificial parts and computers. Is a future six million dollar man a person? Consider Hal, the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal is turned off is that computercide? When human replicants from Blade Runner kill in the future, will they be persons liable for crimes? Is Data from Star Trek a person? Finally, assume the proverbial aliens from Mars land on Earth, will the Constitution consider them persons entitled to rights?
Hobby Lobby thus demonstrates whether something is a person or property is only the beginning of a constitutional debate about rights. It also shows how controversial that determination is. For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.
Showing posts with label corporation personhood. Show all posts
Showing posts with label corporation personhood. Show all posts
Friday, October 3, 2014
Friday, July 4, 2014
Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision
Five votes. Five Catholics. Five men. One decision. Potentially millions of American women denied contraceptive coverage. This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society.
Burwell v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations. Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
So think first about the sexism of the decision. Five male Justices rule that it is ok for an employer to deny women contraceptive coverage. Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women. This is bad enough. But the sexism is even worse–it is about not getting a clue. Contraceptives are not just about birth control–they are about women’s health. Many of the drugs used to prevent pregnancies also address other women’s health issues. I doubt the Justices understand this (even if they care). One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
But the sexism is compounded by the Catholicism and religiosity of their votes. All five guys in the majority are Catholics. The Catholic Church opposes not just abortion but birth control. These five Justices seemed simply to vote the sexist Catholic party line in their decision. But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law. The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law. When the First Amendment was written it declared that “Congress shall make no law establishing a religion.” But RFRA and the five Justice majority appear to have done that. We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United. The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals. Here, when the rights of corporate owners clashed with female workers it was the former who won. More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy. He was correct. The powers given to property and corporations under the Roberts Court come at the expense of American democracy. It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power. Hobby Lobby is just another example of how some have confused the economic and political marketplaces.
Burwell v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations. Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
So think first about the sexism of the decision. Five male Justices rule that it is ok for an employer to deny women contraceptive coverage. Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women. This is bad enough. But the sexism is even worse–it is about not getting a clue. Contraceptives are not just about birth control–they are about women’s health. Many of the drugs used to prevent pregnancies also address other women’s health issues. I doubt the Justices understand this (even if they care). One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
But the sexism is compounded by the Catholicism and religiosity of their votes. All five guys in the majority are Catholics. The Catholic Church opposes not just abortion but birth control. These five Justices seemed simply to vote the sexist Catholic party line in their decision. But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law. The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law. When the First Amendment was written it declared that “Congress shall make no law establishing a religion.” But RFRA and the five Justice majority appear to have done that. We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United. The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals. Here, when the rights of corporate owners clashed with female workers it was the former who won. More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy. He was correct. The powers given to property and corporations under the Roberts Court come at the expense of American democracy. It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power. Hobby Lobby is just another example of how some have confused the economic and political marketplaces.
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