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Michaelson writes: "Stop calling Judge Neil Gorsuch an originalist. His opinions would make the Founding Fathers turn over in their graves."

Neil Gorsuch. (photo: Elizabeth Brockway/The Daily Beast)
Neil Gorsuch. (photo: Elizabeth Brockway/The Daily Beast)

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 19th 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. your social media marketing partner


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+19 # Jaax88 2017-03-19 22:51
Well said and necessary. Hope this is passed on to the Senate for Gorsuch's hearing and to Gorsuch himself.
+17 # norman markowitz 2017-03-19 22:51
As an historian who has taught this history for nearly half a century, I can attest to the truth of this article.
The leaders of the American Revolutionveers merchant capitalists, landowners and chattel slaveholders, all opreating n a pre industrial commercial capitalist society.
While they were no champions of political democracy, they saw government as regulating individual and collective economic activity for the general welfare, even if that meant in reality the welfare of their own propertied classes. They and their successors fought for decades against corporations attempts cto eliminate government checks on their activivities in order to create an unregulated "free market" just as they opposed franchised private monopolies
. They would in all probability see the present Trump administration as something like the British government of corrupt adventurers and aristocratic swindlers that they rose up against. Trump especially would probably remind them of "Champagne Charlie" Townsend, the dandy Tory finance minister who rewarded his friends with colonial franchises and commissions and hit the colonies with outrageous taxes, mostl important the tax tax at the best of the British East India company, then the most powerful private corporation in the world.
But the whole concept of "original intent" is anti-historical , turning the Constitution itself a set of scriptures to be followed literally on the intent of men who lived 229 ago in a radically different world
+4 # Texas Aggie 2017-03-19 23:44
Does anyone actually consider this person to be an originalist? Why?
+2 # Robbee 2017-03-20 19:01
Quoting Texas Aggie:
Does anyone actually consider this person to be an originalist? Why?

- you dare peel the onion?

gore-suck! beg your pardon? is a card-carrying, proud member of the so-called "federalist society" the ultra-corporati st society that hates federalism!

robbee has been warning RSN about the "federalist society" ever since lib falsely accused hill of being "corporatist"

google "federalist society", thanks!
+17 # Brice 2017-03-20 01:44
Yes, this is good, but obvious.
Everything the Republicans say is staged and rehearsed.
When they talk about the free market, capitalism, liberty, indispensable country, right to life, right to work ... we all know it is a facade to hide their evil under the cloak of stuff that sounds positive that will put people to sleep.

Just think of it as Trump when he says Tremendous ... it really means the exact opposite. We have to stop engaging with Republicans on the reason level - because they longer you devote to trying to argue logic with them the more credible they sound, and the less energy you have. Just watch their actions, and comment on the results of them - and ignore the troll bait, which is about 98% of everything they do.
+12 # warrior woman 2017-03-20 05:32
These are facts. We must resist the argument that his appointment doesn't change the composition of the court. It was our position to appoint. Now I've read that he'll likely get appointed with at least 60 votes. Better not happen!
+15 # RLF 2017-03-20 05:34
When it can be shown that there is a judge who's opinions consistently tilt in one way...doesn't that make him not a judge but having been bought even if it is not for money. A judge is supposed to look at cases on the merits and the merits cannot be consistently the same way every time. He is not judging if there is a hedge to one side consistently... he is corrupt.
+20 # CDMR 2017-03-20 06:42
This article is good in pointing out how much corporations now control the US court system. They will triumph over real, living, human beings by means of court decisions rather than laws which get more public scrutiny.

Corporate "personhood" just has to be the most stupid concept ever cooked up. I understand its utility. Treating an instrument as a "person" confers advantages on a business entity. The problem is that courts are allowing a "legal fiction" to be taken as a legal reality.

The US needs a supreme court justice with some common sense. Corporations are not people. They are legally constructed entities chartered to do certain things. They can be disbanded at will, just as they were created at will.
+6 # giraffee23 2017-03-20 09:03
Stolen spot for this position. Comey should let Congression know if the Trump campaign was involved with Putin before the Congressional vote. And if there is ANY involvement, this position should NOT be finalized before we know.

The Republican Senators should not go with every Trump mandate and if they band together and don't, they MAY survive re election.
+3 # Cassandra2012 2017-03-20 15:25
Putting loyalty to party above loyalty to nation is akin to treason!
+7 # mh1224jst 2017-03-20 09:33
An excellent article, and great comments, esp. kudos to CDMR on corporate personhood.

1776 was not only the year of the American Declaration of Independence, but also the year that Adam Smith published "The Wealth of Nations," the first major treatise of classical economics. Smith left no doubt about how much he detested corporations and landlords (The landlords of today are corporations, for the most part.) Our Founding Fathers were on the same page.

Economic history has also been been similarly ravaged by the plutocrats in their destruction of public support for democratic socialism.
+11 # chrisconnolly 2017-03-20 11:56
If ExonMobil resembled actual personhood then Exon/Mobil should have had to face murder charges for the gulf spill that killed 11 workers. But since corporations are not truly people they are not held responsible for anything but profits. Gorsuch must not be a member of the highest court in the land. Freedom should not mean corporations are free to do anything they like in the pursuit of ever increasing profits, regardless of the harm they exact on individuals.
+6 # wrknight 2017-03-20 12:30
A Supreme Court under Gorsuch might even give corporations the right to vote. After all, nothing in the Constitution says they can't. And maybe even allow corporations to run for public office. How about Exxon for president?

That would raise the question of how many votes could a corporation cast. Since a corporation isn't just one person, but a large group of shareholders, maybe the same number of votes as shareholders? Or possibly the same number as outstanding shares?

Wow! A corporation like Exxon with 4,144,580,000 outstanding shares could cast 4,144,580,000 votes. As Trump would say, that's gigantic!

This whole argument about corporate personhood and the idea of extending any Constitutional guarantees in the Bill of Rights to corporations is insane.
+9 # Working Class 2017-03-20 12:44
Because of a corporation's expressed need to continually grow and improve upon the monetary return its stockholders, regardless whether its activities to accomplish that goal helps of harms society at large, it can be fairly said their main goal is growth for the sake of growth itself. This is not unlike the philosophy of the cancer cell - growth for the sake of growth. Like treatment to stop cancer, regulation of the modern corporation is not limiting "freedom". On the contrary it is necessary to save society from the oppressive economic force of concentrated economic power.
+2 # lfeuille 2017-03-20 19:44
The only way to stop this is a filibuster. If the Democrats aren't willing to do it, they are just blowing smoke.

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