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Last Night: Original Intent
The hefty new hardcover I'm reading right now (guarantee it'll win the Pulitzer—all the books middle-aged me reads nowadays seem to) blew my mind last night.
Perhaps this fact is a well-known irony among lawyers and law school students who are aware of Supreme Court history, but here's what I learned last night from Scorpions, a book about FDR's towering supreme court justices, including Justice Hugo Black.
The conservative concept of original intent—you know, the whole (Tea Party) Anton Scalia trip that wants to freeze the constitution in 1789 and not allow highfalutin interpretations that do things like grant equality to women and gays—was originally (ha) penned by Black, a liberal FDR appointee, in his lone dissent on a 1937 tax law case.
And what was Black stewing about when he wrote his dissent? The scary notion that—as the conservative court famously ruled in 2010—corporations are people too.
Scorpions author Noah Feldman writes:
So it seems to me that last year's conservative ruling in Citizens United—the case that allowed corporations to contribute unlimited dollars to political campaigns with a stunning implication that corporations are people—not only contradicts the conservative's cherished notion of original intent, but specifically contradicts the very case that invented the theory. That's a double transgression.
Perhaps this fact is a well-known irony among lawyers and law school students who are aware of Supreme Court history, but here's what I learned last night from Scorpions, a book about FDR's towering supreme court justices, including Justice Hugo Black.
The conservative concept of original intent—you know, the whole (Tea Party) Anton Scalia trip that wants to freeze the constitution in 1789 and not allow highfalutin interpretations that do things like grant equality to women and gays—was originally (ha) penned by Black, a liberal FDR appointee, in his lone dissent on a 1937 tax law case.
And what was Black stewing about when he wrote his dissent? The scary notion that—as the conservative court famously ruled in 2010—corporations are people too.
Scorpions author Noah Feldman writes:
The case in which Black rolled out his theory was brought by a Connecticut-based insurance compnay that had been taxed in California and wanted the Court to find the out-of-state tax unconstitutional. The other eight justices saw the case as routine and they held in favor of the Connecticut company. Black, though, disagreed. The Constitution, he declared, did not protect corporations—only people.
His reason was simplicity itself: The due process clause of the Fourteenth Amendment gave rights only to persons: 'I do not believe the word 'person' in the Fourteenth Amendment includes corporations,' Black wrote. To include corporations was to invent new rights, that had "a revolutionary effect on our form of government.'"
So it seems to me that last year's conservative ruling in Citizens United—the case that allowed corporations to contribute unlimited dollars to political campaigns with a stunning implication that corporations are people—not only contradicts the conservative's cherished notion of original intent, but specifically contradicts the very case that invented the theory. That's a double transgression.
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