Home > Academic Articles, Corporate Personhood Series > A Response to the Citizens United Opinion

A Response to the Citizens United Opinion


  • The Supreme Court’s decision in Citizens United v. FEC has extended  the doctrine of   “corporate personhood” to offer corporations the full protection of fundamental rights, like freedom of speech, under the First Amendment.
  • The Court’s rationale relies on false suppositions about the Founders’ motivations, the nature of inalienable rights, and the characteristics of free association under the Constitution.
  • The New Textualists on the Court are among the Majority, despite holding views about the nature of collective speech which seem to conflict with one of the decision’s central premises.
  • The Court’s decision will serve to diminish the public trust in government and to ensure the continued hegemony of the wealthy elite in American political life.

This article is by Tom Carroll, a 2L at Chicago-Kent.

The Supreme Court’s recent decision in Citizens United v. Federal Election Comm’n has generated tremendous controversy among laymen, scholars and lawyers.  The Court struck down a federal law prohibiting corporations and unions from spending money on “electioneering communication” within 30 days of a primary or 60 days of a general election.  It overturned precedents established in McConnell v. Federal Election Comm’n and Austin v. Michigan Chamber of Commerce.  The Court applied a rigid strict scrutiny, holding that the law violates free speech and association rights under the First Amendment.

President Obama was so offended by the decision that he rebuked the Court in his State of the Union Address.  Despite the president’s alarm, a cynic would say that American corporations can’t have any more freedom from the constraints of law and accountability than they’ve had since the rise of Standard Oil (see: TARP).  Skittish Democrats should relax; unions are also free to spend.  The decision will have subtle effects, strengthening the dominance of incumbent politicians and making it harder than ever for non-millionaires to get elected to any office above garbage commissioner.  It will promote factionalism — the founders’ democratic bogeyman — but that is also nothing new in our republic.

That said, the decision was poorly-reasoned and wrong.  Whether one views the First Amendment as protecting a virtual “town hall,” with every citizen afforded a chance to speak, a hectic “marketplace of ideas,” where the only rule is the pragmatic maxim, or a simple sentence that says exactly  what it means, all views hinge on the premise that freedom of speech is a personal liberty, and that the trappings of free association and a free press are aimed at securing the most liberty for the most individuals.

Corporations are not people, regardless of what legal fictions judges employ, nor are they imbued with the “inalienable rights” that underlie the First Amendment.  Corporations are the manifestations of laws designed to promote the accumulation of wealth.  While important to the modern nation-state, no corporation has ever voted, dreamed of a better life, or died for a cause.

Justice Kennedy’s majority opinion, liberally citing Justice Scalia, employs sloppy reasoning and revisionist history to justify its holding.  The idea that the decision is grounded in an original understanding of the constitution is intellectually dishonest.  Nothing like the modern corporation existed at the time of the Founding, and the Revolution was fought, at least in part, to oppose the modern corporation’s distant forebears.

Many of the British taxes that triggered the Revolution aimed to protect one of the world’s earliest corporations, the British East India Company.  The original patriots were acutely aware of the danger to liberty that inheres when a government places the interests of faceless entities above those of its citizens.  Such fears are the essence of opposition to Citizens. Just ask the father of the American Judiciary, John Marshall:

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 creation confers upon it, either expressly, or as incidental to its very existence.  These are such as are supposed to effect the object for which it was created. Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).

Marshall was an old guard Federalist with a Hamiltonian vision of America’s manifest economic destiny.  But he would have balked if told that the First Amendment protects corporations in the same way as citizens.

Beyond original understanding, Marshall’s comment demonstrates one of the major fallacies underlying the holding in Citizens.  Kennedy quotes Scalia’s dissent in Austin saying that, “state[s] cannot exact as the price of those special advantages[1] the forfeiture of First Amendment rights.”  It is certainly true that governments may not exact a price from individuals in exchange for their freedom of speech.  The First Amendment identifies fundamental liberties that supersede any government power.  It is not technically a grant of any right, because man-made constitutions have no power to grant or deny such rights.

By contrast, corporations are fictional constructs endowed only with the rights granted them through state laws.  The people are their creators and there is nothing fundamental about their existence.  If the people wish to restrict corporate spending preceding an election, no forfeiture can occur, because corporations cannot give back any right that isn’t “endowed by their creator” to begin with.  The First Amendment  affirms Mr. Jefferson’s assertion that “inalienable rights”, like speech, can never be forfeit – they exist perpetually in the fabric of human existence.  Corporations exist outside that fabric.

The great irony of Citizens is that the Majority, anchored in Scalian thinking, attributes the act of speech to a corporation.  Justice Scalia is the architect of the New Textualist movement in American jurisprudence.  Among the pillars of that faith is the premise that laws must be interpreted at face value, without reference to legislative history or extrinsic statements of intent.  It supposes that no constituent assembly may have a collective purpose.

Freedom of speech is ultimately a proxy for freedom of thought and conscience.  The thoughts and conscience of an individual are identifiable, if at all, through what he says.  A corporation has no conscience and cannot think at all unless one assigns it a collective will.  And the notion of a collective will offends a central premise of the textualist worldview.  Yet the Citizens decision supposes that corporations may speak with single-minded purpose.

The Court cloaks this idea of collective speech in the rhetoric of free association, pointing out that Citizens United is an association whose aim is to disseminate political messages.  But certainly the founders of Citizens United chose incorporation because of its economic, not its political advantages.  The old FEC law did not limit people’s right to speak or assemble for redress of grievances.  It simply limited people’s right to speak while obscured behind the corporate veil (a time, place, and manner restriction, if ever there was one).

The First Amendment does protect the “right to peaceably assemble.”  But the logical extension of the Court’s decision is that the First Amendment protects an unqualified right to assembly in any form (including a corporation).   By that logic, the state can no more deny a citizen-assembly the right to incorporate than proscribe their acts, including acts of symbolic speech, once incorporated.  After all, human rights attach at birth, without requiring the permission of any government.  If corporations are people, presumably such rights attach before their creation.  Therein lies the dilemma of corporate personhood.  What began as an economically- expedient legal fiction has morphed into Frankenstein’s monster — a jumble of legal spare parts that, once granted the spark of life, purports to possess all the liberties once considered uniquely human.

That the Court equates speech and spending money, without qualification, illustrates the extent to which expenditure has replaced reasoned debate at the heart of American government.  The Founders cannot have pictured such an end.  In Citizens, the Court has denied legislative efforts to restore faith in government and exalted the corporation above the individual in the hierarchy of Liberty’s grace.

[1] Such as, “limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.”

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