Do corporations have Constitutional rights?
Thirty-nine brave men signed the U.S. Constitution on Sept. 17, 1787, and cemented the foundation of our legal system, democracy and way of life for the centuries that followed.
More than 200 years and 27 amendments later, the U.S. Supreme Court remains the primary arbiter of this brilliant document’s scope and force. Over time the court has fluctuated from an interpretation of the Constitution as “living,” or adapting to our ever-developing society, to what Supreme Court Justice Antonin Scalia terms “the enduring Constitution” — a strict, originalist interpretation of the words as written.
In reality, the role of the Constitution continues to evolve as well. The founding document adapts itself to address the challenges of a given era, often curbing, clarifying or expanding rights related to controversies of a particular time. Brown v. Board of Education and several subsequent cases in the 1950s and 1960s expanded the right of equality under the 14th Amendment to the Constitution. Cases such as Griswold v. Connecticut followed, expanding the concept of personal rights and leading to the enforcement of an individual’s right to privacy applied in Roe v. Wade (protecting the privacy of women’s health decisions) and Lawrence v. Texas (protecting the privacy of same-sex couples).
In recent years, however, this trend has taken a dangerous turn away from focusing on individual rights and freedoms and toward expanding the rights of corporate entities. In the past five years, major court decisions expanded the constitutional rights of corporations, an action with serious consequences for our democracy.
Historically, corporate constitutional rights were limited to the work of the corporation and economic necessity. Examples include the ability to sue and be sued, the right to make contracts, or the protection against unlimited search and seizure.
But two recent cases in particular — Citizens United v. FEC and Burwell v. Hobby Lobby — have greatly expanded corporate rights to speech and religious freedoms, opening a floodgate of reforms that could diminish the political and religious rights of individuals. Citizens United infamously established the First Amendment right of corporations to spend money to influence the outcomes of elections, rejecting the traditional notion that such influence would corrupt our politicians and thwart the democratic process. Hobby Lobby concluded that some corporations enjoy constitutional protections of religious freedoms, colliding in some circumstances with an individual/employee’s privacy rights in the workplace and with deep ramifications for women’s health freedoms.
The implications of this trend are serious. As Justice John Paul Stevens noted in his Citizens United dissent, corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.” If they now have the right to influence political elections and enjoy religious freedoms, where do their rights end? Do they also have voting rights? The right to bear arms? Where does this newly created slippery slope end?
And, most importantly, when these new corporate rights conflict with the rights of an individual, who — or what — should prevail?
Our U.S. Constitution turns 227 amid this trend toward expanded corporate rights and protections. In the years ahead the Supreme Court will face additional decisions regarding whether to continue extending the historic rights that individuals possess to corporate entities. If this expansion continues, Congress and state legislatures may consider exercising their right to “check” the court’s activist trend through amending this historic document a 28th time to more clearly limit corporations’ constitutional protections.
Jocelyn Benson is dean of Wayne State University Law School.