Fri 22 Jan 2010
Interpretation of Interpretation of Interpretation Fail
Posted by b psycho under fevered barking , lawPsst…somehow I doubt that is what they meant. I know that isn’t what I mean at least:
[A]s my liberal friends all seem to be indignantly announcing in the aftermath of the Citizens United ruling, corporations aren’t really people! They’re creatures of statute, and “corporate personhood” is just a convenient legal fiction. Which is fair enough, but also seems to miss the point rather spectacularly. […]
Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls. Fill in your own scenarios, it’s easy.
The Left, both anti-state & otherwise, points out the conflation of a legal mechanism for organizing for a common interest, which includes benefits that effectively subsidize such organizations exponentially with size, with a person who cannot claim such benefits on their own. Julian Sanchez, in response, insinuates an ad absurdium conclusion that cancels out individual rights immediately upon people forming any sort of collective…
How a Cato Institute fellow isn’t familiar with the point of such a basic, common critique (hint: “limited liability”), I have no idea.
January 22nd, 2010 at 9:02 pm
Not “any sort of collective.” The New York Times is a corporation. Your Internet provider is a corporation. Harvard is a corporation. Most churches are corporations. You don’t have to like how thoroughly entwined with the corporate form our lives and expressive capacities are… but they are. If political speech can be regulated at its points of contact with corporate mechanisms for producing and distributing a message, then in a society that communicates the way ours does, the First Amendment is a Maginot Line.
As for limited liability, sometimes the government can confer benefits conditional on the waiver of a constitutional liberty, but often it can’t. They can offer me a teaching gig provided I agree not to use my position to indoctrinate my students, but they can’t offer me a Pell Grant provided I become a Baptist and stop criticizing the governor. So you need a closer analysis than “well they get a benefit” to know whether this particular type of condition is permissible, and in cases where political expression in particular is singled out, there ought to be a strong presumption that the condition is suspect.
January 22nd, 2010 at 10:59 pm
I don’t think political speech can be (or, more accurately, should be) regulated at all, so it’s not that I’m arguing for the restriction itself. Besides, the difference with the rule and without it has been negligible anyway, so even if it weren’t constitutionally suspect it’d be pointless.
Much of the griping about the ruling refers to the contradiction between government granting a status and having to treat it as if it came about spontaneously. That they support the restriction in response shows a huge blindspot on the part of the “progressives” IMO. I’m not saying the government can take away liberties in exchange for benefits, I’m saying to the people that complain about it “well, stop the benefits then”.
January 29th, 2010 at 8:59 pm
So what exactly did you think Sanchez failed to interpret correctly?
January 30th, 2010 at 12:23 am
He misread the point behind the liberal freakout over the ruling, stretching the critique far beyond where anyone has been arguing for it to go.
The extent to which the other groups he describes take corporate form is a legal quirk, but the overwhelming majority of its use involves for-profit business. As misguided as I think the outcry is myself, I doubt when a liberal screams about corporate influence that they’re talking about their local clinic.