Neil Gorsuch Is No Originalist: The Founders Loathed Corporate Power, He Favors It

By Jay Michaelson, The Daily Beast

19 March 17

By favoring corporate power over individual rights, Gorsuch’s legal philosophy flies in the face of the Founders’ original intent.

top calling Judge Neil Gorsuch an originalist. His opinions would make the Founding Fathers turn over in their graves.

The Supreme Court nominee’s record on cases pitting individual against corporate rights tilts consistently in favor of corporations over many years. And while many conservative ‘originalists’ don’t like to talk about it, the Founders hated corporations and sharply limited their power.

In recent years, the Supreme Court has vastly expanded the notion of corporate personhood. For two centuries, it was understood that while corporations enjoy legal personhood, that personhood is a legal fiction. Corporations are like actual people in some ways, but they don’t enjoy every right that an actual human being enjoys. They can’t vote, for example.

Lately, however, corporations have been getting more and more of them thanks to the Supreme Court.

Per Citizens United, corporations have the same free speech rights as flesh and blood people, including the right to spend unlimited amounts of money to “speak” about political affairs. This has led to an astounding transformation of our campaign finance system: one recent study showed that the Court’s recent decisions led to more than $3 billion in spending on the 2016 elections, equivalent to 45 percent of the total cost of the elections.

And according to the Hobby Lobby decision, corporations even possess religious liberty rights under the Religious Freedom Restoration Act. Just as with private citizens, the government must pass an extremely heavy test before it can abridge the religious liberty of a corporation.

Judge Gorsuch’s record strongly suggests that he’ll continue the Rehnquist and Roberts Courts’ expansion of corporate power at the expense of individual rights. As an appellate judge, Gorsuch hasn’t heard high-profile cases like Citizens United. But he has heard many cases balancing corporate and individual rights. And time and again, faced with close cases, he has sided with businesses over individuals: with insurance companies that sought to deny disability benefits, with employers who wanted to cut pension benefits, and with employers defending against employment discrimination claims.

The most telling of Judge Gorsuch’s opinions are his dissents, in which he frequently departed from his mostly conservative Tenth Circuit colleagues to stake out even stronger pro-business positions. A report by the left-leaning People for the American Way catalogued 35 such dissents, including four out of five workers’ rights cases where the court found for the worker, but Gorsuch dissented to support the company.

Gorsuch voted down a fine against a company that failed to properly train a worker, resulting in the worker’s electrocution on the job. He ruled against a truck driver who was fired after refusing to wait for more than two hours in a broken down truck in subzero temperatures. He dissented to throw out a sex discrimination case despite considerable evidence in the record. And in another dissent, he accused the National Labor Relations Board of acting out of “frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions.”

Now, judges make close calls all the time, that’s their job. And no one is alleging that any of these decisions were improper or compromised. But when a consistent trend emerges over several years, it’s reasonable to extrapolate that trend into the future. And that trend suggests that Judge Gorsuch will continue the conservative justices’ radically pro-corporate power approach.

But there’s nothing originalist about this. Nowhere in the Constitution will you find the principle that corporations are people. On the contrary, the Founders had profound misgivings about them.

The earliest corporations, inherited from the British, were primarily cities and schools, not for profit enterprises. Economic concerns don’t begin to be incorporated until the 1790s, and even then, they were of limited duration and subject to revocable charters issued by legislatures. Corporations as we know them today – let alone gigantic trans-national corporations – simply did not exist at the time of the Founding.

On the contrary, the largest corporation of the time – the British East India Company – was derided as an imperium in imperio, a state within a state, and deliberately not replicated in the new republic. Indeed, the Boston Tea Party was as much a protest against the company as it was against the Crown.

General corporate statutes began to crop up in the 19^th century but corporations were still strictly limited as a matter of law. They were temporary, their charters were revocable, they could not hold stock in other corporations (no subsidiaries, no mergers), and owners were personally liable for any criminal acts.

That only changed after the Civil War, when Gilded Age oligarchs began using the Fourteenth Amendment, meant to give rights to former slaves, to give rights to corporations. Suddenly, railroads and massive trusts became recognized as people, and their power expanded dramatically.

The modern regulatory state, which many conservatives regard as a betrayal of American libertarian ideals, was only created in the wake of these changes. The trusts and other mega-corporations that arose in the Gilded Age, not the regulatory state, represent the real departure from the society the Founders envisioned. Regulations were only a correction.

This point is omitted in the elisions of individual and corporate rights that are a hallmark of modern conservatism. The dichotomy between the public sector and the private sector is too simplistic. As the noted liberal theorist Charles Reich has discussed, we should actually understand society as consisting of three parts: the public sector, the individual sector, and the corporate sector. And more often than not, the state steps in to protect one from the other.

For example, Republicans often depict environmental laws as the government regulating the private sector—and criticize them for getting in the way. But this depiction is misleading. Really, the government is regulating the corporate sector to protect the individual sector: preventing pesticide companies from poisoning unsuspecting families, preventing factory farms from polluting drinking water.

In these and thousands of similar examples, it’s not “liberty” in general that’s being curtailed. Corporate liberty is curtailed so that individual liberty (as in life, liberty, and the pursuit of happiness) can grow.

Corporations are useful legal entities, of course. As legal-fictional “people,” they enable actual people to pool resources in ways that have transformed our world for the better. They limit liability so that the aggregate, rather than individual owners or officers, is responsible for debts and damages. They are extremely useful tools.

But they are not people. They outlive human beings, growing in power and accumulating capital more than any individual, or any dynasty, could. They can merge with one another, amassing even more power. And they can span the globe, with eyes, ears, and limbs everywhere in the world.

They are also unlike human beings, who can balance their self interest against things like morality, sustainability, and the common good, because corporations, by their charter, must maximize value to shareholders. Even if a mining company’s board of directors knows that shaving off that mountaintop is bad for the long-term future of everyone, they are duty-bound to do it if maximizes profits. If corporations really were people, they’d be the biggest, most selfish, most obstinate jerks you ever met.

Which brings us back to Judge Gorsuch.

For too long, progressives have given conservatives a pass on the concept of “originalism.” It was never the Founders’ original intent to allow corporations to become as powerful as they are today. Quite the contrary; their original intentions were to limit them or even ban them entirely. It is absurd to suggest that Gorsuch’s pro-corporate rulings, or the Supreme Court’s decisions in Citizens United and Hobby Lobby, in any way reflect the original intentions of the founders.

With Gorsuch’s confirmation hearings fast approaching, we’ll hear a lot of talk about whether the Constitution is to be interpreted as a living document (as progressives usually say) or according to original intent. Whatever we may make of that debate, expanding corporate power is not originalism. Let’s stop pretending that it is.