Friday, March 05, 2010

The Roberts Court extends the rights of personhood to fetuses? No, corporations.

This was the Supreme Court that was supposed to tell us that fetuses were persons, or, at least, to permit states to decide that fetuses were persons. Instead, they decided that corporations were persons. Of course the very idea of incorporating involves your not being treated as a person in at least one important sense; LLC means limited liability corporation, which means that people can't go to jail for what the corporation does.

In the present political climate, conservative Republicans always get the part of their agenda done that benefits the big corporations. Fetuses don't make campaign contributions. Corporations do. 


steve said...

Yes, corporations make contributions. So do labor unions. And trial lawyers. And environmentalists. And so on and so forth.

Of course, if we didn't have such an intrusive gov't, individuals and corporations would have less stake in the system. That's the way to cut down on lobbyists.

Victor Reppert said...

But except for libertarians, everyone has a list of what they want government to butt out of, and what they want government to butt into.

Steve, I wish you had had the chance to explain that latter point to the likes of Tom DeLay. Delay was, presumably, a believer in small government who spent his entire career in bed with lobbyists. (I've often thought that someone should make a movie or a TV show about the life and times of Tom DeLay. The only problem is that Larry Hagman is now too old for the title role).

steve said...

Are you planning a follow-up post about lobbyists in the Obama administration?

Victor Reppert said...

There are lobbyists on all sides. Have any concrete suggestions for lobbying reform?

RM said...

Hello Prof. Reppert,

I enjoy your blog very much, but you are quite unfair to conservatives (of which I am one) in this post. The determination, first of all, to treat corporations as persons antedated the Roberts Court, and, secondly, conservatives never promulgated the idea that the Roberts court would ever read the constitution as affirming the personhood of fetuses. Indeed, given Scalia's reading of the 14th amendment and given Kennedy's presence on the court, that would be an impossibility. Rather, conservatives propagated the idea that were the court filled with justices like Roberts, then the court would deny that the constitution affirmed a right to privacy that precluded the proscription of abortion. In short, that one could reasonably hope for a reversal of Roe and Casey if the court was filled with justices with the judicial philosophies of Roberts, Alito, Scalia and Thomas. Conservatives do not even say that it possible to achieve this much given Kennedy and the current supreme court ensemble. So it seems to me that conservatives have been quite careful and circumspect in what they say can be reasonably expected from the Roberts court with respect to abortion. Would you not agree? Much continued success with the blog.

Victor Reppert said...

I thought I had rather carefully worded that in my original post. The court was supposed to at least permit states to decide that fetuses were persons.

Though, that's actually something I find puzzling in the conservative position. It would seem to me that if you really believed in the full personhood of fetuses you should want the court to say that, yes, they're persons. What if you're pro-life, but you also believe in privacy rights? In fact, what if you're pro-life, but you believe in judicial activism?

Bilbo said...

Suggestions for lobbying reform:

1) Pass a constitutional amendment that only natural persons have civil rights.

2) Pass a law that only natural persons may contribute money to a political campaign. Set a cap low enough, so that a rich person cannot buy a campaign.

3) Pass a law that a candidate must have over 50% of the vote to win. In case no candidate has more than 50%, there is to be an instant run-off. This can be done by having voters check off their second favorite candidate at the time of the election. This means that third party candidates would have a real chance of winning elections, which would break the stranglehold our two parties have on our government.

4) Only paper ballots for elections.

steve said...

Victor Reppert said...

"There are lobbyists on all sides. Have any concrete suggestions for lobbying reform?"

Downsize gov't. Lower taxes. Reduce regulation.

We have lobbyists because various special interests groups have a stake in the outcome. And they have a stake in the outcome because the gov't is so intrusive. Less gov't intrusion, less need to invest in the process.

But given the current status quo, the stakes are far too high to ignore. Hence, a cottage industry of lobbyists.

Bilbo said...

So, Steve, what do you think of my suggestioons?

RM said...

Not so, Prof. Reppert. Prolife judicial conservatives did not even say that much. To allow the states to decide the status of the fetus presupposes the reversal of Roe and Casey. But given the current composition of the court, that is a near impossibility. Knowing that, conservatives circumspectly propagated only the idea that were the court filled with justices like Roberts, then the court would deny that the constitution affirmed a right to privacy that precluded the proscription of abortion. Thus, our appeal to pro-lifers who otherwise are liberal is that support of conservative jurists is your most prudent choice if you take your prolife convictions seriously. For, they will allow the status of the fetus to be determined in law not by judicial fiat, but through democratic processes.

Your last three questions regarding fetal personhood, privacy rights and judicial activism, Prof. Reppert, can only be answered after one considers what theory of constitutional interpretation prolifers (or anyone for that matter) should adopt.

Taking your last question first, their bitter experience with Roe should lead prolifers to eschew any attachment to judicial activism. Roe exists precisely because of jurists who have adopted a hermeneutic whereby the meaning of the constitution is not fixed but perennially evolving. Hence, such jurists assume for themselves the role of philosopher-kings who read into the constitution their own views and values and can by mere judicial declaration decide matters on which the constitution leaves open for democratic debate.

By contrast, adopting, say, an originalist hermeneutic whereby the meaning of constitutional provisions are fixed and simply are (to borrow Lawrence Solum’s words) the “conventional semantic meaning that the words and phrases had at the time the provision was framed and ratified”, severely restricts the chances of juridical imposition. Hence, fraught and morally weighty issues will find democratic, rather than juridical, resolution. The great benefit of such resolutions on such matters is that they allow for compromise and promote stability in our polity. By contrast, look at the ever continuing tumult wrought by Roe. Such is the price of judicial activism.

As with any view, consequences attend the adoption of originalism. One consequence is that not all ones views and values can simply be read into the constitution. Thus, to answer your other two questions, prolifers can expect the court to treat fetuses as persons only if constitutional provisions require that they be treated as such. Notwithstanding John Finnis, most conservatives like Scalia do not view the constitution as securing such a provision. Similarly, with privacy rights, the constitution, other than precluding unreasonable searches and seizures, under an originalist reading does not secure such a “right to privacy” which secures a right to an abortion. If one thinks such views should be in the constitution, then merely use democratic means to amend the constitution enacting such provision. But don’t just read them into the constitution. That’s just intellectually dishonest.

Hope that clarifies.

Victor Reppert said...

It isn't exactly intellectually honest to say "I'm pro-life, so what jurisprudential theory should I adopt to ensure that we get the right outcome on Roe?" That's what I call outcome-based jurisprudence. If, for example, a Scalia-style originalist jurisprudence would maybe, under the present political circumstances get the best deal for pro-lifers on Roe, but also get the wrong answer on school desegregation, Dred Scott and a bunch of other stuff, then it's wrong to adopt what on balance is a bad jurisprudential theory in order to get one thing right. One should look for the best jurisprudential theory overall, which may get the wrong answer on certain particulars.

Of course we have legal means to amend the constitution. However, there is an unusually high level of political will to get that done: you need 2/3 votes in Congress and 3/4 of the states ratifying.

Interesting that the jurisprudential conservatives on the court are Catholics, which lead me to wonder if they accept anything like Newman's development of doctrine. But if you apply anything like Newman's doctrinal development to the Constitution, you sure as heck don't get originalism.

The argument that the right to privacy exists only in the context of illicit searches and seizures, and the argument that the right to bear arms exists only in the context of a well-regulated militia, seem remarkably similar in structure.

RM said...

Quite right. It is intellectually dishonest to adopt originalism merely because it promotes ones policy preferences. Neither I nor any other conservative is advocating that. It is similarly intellectually dishonest to reject originalism merely because it doesn’t promote one’s policy preferences. As in the claim that originalism, if adopted, would lead to the reversal in Brown v Board of Education (or any other list of horribles). Happily, it doesn’t, see Michael W. McConnell’s contribution to Jack Balkin’s, What Brown v. Board of Education Should Have Said. One must evaluate the truth of any constitutional hermeneutic on its own merits.

It is a sign of intellectual honesty and a badge of honor that conservatives like Scalia adopt originalism despite that it doesn’t support their policy preference, namely, that fetuses enjoy 14th amendment protections under our legal regime. Originalists, then, give no succor to results-based jurisprudence. If you are interested in seriously evaluating the merits of originalism, peruse Lawrence Solum’s brilliant essay District of Columbia v Heller and Originalism, Prof. Reppert. It will also give insight into the arguments regarding the 2nd amendment right to bear arms.

But, to bring focus back to our discussion, while the nature of originalism is related, the real point of our disagreement turns on whether, as you claim, conservatives some how insinuated that the Roberts court would either “tell us that fetuses are persons or, at least, to permit states to decide that fetuses were persons.” I think it is quite clear from our discussion that they made no such insinuations. I hope we can agree to that now.

All the Best,
Rinku Mathew

PS: While most of the judicial conservatives are Catholic, Justice Kennedy, who is also a Catholic, is not a judicial conservative. He often votes with the conservatives, his jurisprudence is not the same as that of Scalia, Thomas et al. And I doubt that the conservatives would believe in some sort of constitutional analogue to anything like Newman’s theory of doctrinal development because his theory presupposes an infallible interpreter. And, if on nothing else, we can all agree that the SCOTUS is no infallible interpreter.

Victor Reppert said...

I think there is a popular pro-life conservatism out there that wants originalist justices to be placed on the Supreme Court so that Roe can be overturned. Of course, you can be pro-life and originalist, pro-life and anti-originalist, pro-choice and originalist, and pro-choice and anti-originalist. The arguments in the originalism controversy and the arguments in the abortion controversy strike me as completely distinct. It may be a demographic accident that originalism typically goes with pro-life, and anti-originalism typically does with pro-choice.

RM said...

I think that is quite right: there is no necessary entailment between the positions. One can, as you note Prof. Reppert (may I call you Victor?), be a prolifer and espouse some sort of non-originalist constitutional hermeneutic. But, since reversing Roe is necessary to enact legislation to protect the life of the unborn, I would like to know on what legal and constitutional grounds such a person (i.e., a prolife non-originalist) would seek the reversal of Roe.

Victor Reppert said...

It's logically possible to take this position: "Abortion is wrong, and actually it's murder, but there is no adequate Constitutional grounds for prohibiting it. Originalists like to say if you want the constitution changed you have to amend it. Well, that is what we have to do."

Or, you could have the Court rule that fetuses are persons.

Biblical inerrantists often act as if that affirming inerrancy will prevent the biased use of Scripture (you aren't picking and choosing if you accept inerrancy, they think). I think originalists suppose the same thing about originalism and the Constitution (sola intentus originalus). But I am skeptical about that.

The complaint that I was expressing in the original post was the deep suspicion that I have that while conservatives believe that they are voting in accordance with conservative principles, but the actual practice of conservative political leaders suggests that they subscribe to a "cafeteria conservatism" that will act on conservative principle when it suits the needs of big corporate interests to act on conservative principles, but will sell out those principles in an instant if corporate profits are endangered. Faced with the prospect of ObamaCare, the insurance companies fight tooth and nail against Socialism. But when Hank Paulson says that banks need a bailout, they take up the hammer and sickle and given Goldman Sachs what it wants.

I don't know that anything in the Constitution, from an originalist perspective, answers the question of whether corporations are persons. I have no idea what the reasoning is behind that one.

Francis J. Beckwith said...

If corporation are not person for 14th amendment purposes, that means the government can deny them life, liberty, and property without due process of law. Why would anyone want the government--the largest corporation of all--to have the rights of an uber-person.

The only other option is that corporations cease to be and consist of individual subcontractors with all the rights as individuals. This, I suppose, would have precisely the same result, but it would subject individuals to liabilities that are avoided by corporate entities. But the reason for that is that the economy would grind to a halt in such a regime. So, unless you want to be Amish, there is no way a modern civilization an exist without granting to corporations 14th amendment rights.

BTW, the idea that corporations are 14th amendment persons goes back to the 1870s.

RM said...

Hello again Prof. Reppert,

Pardon the delay. My time was constrained. Yes, to reverse Roe one can (a) enact a constitutional amendment or (b) some how have the Court rule that fetuses are persons. But regarding (b), under what liberal (i.e., non-originalist) constitutional hermeneutic is such a conclusion entailed? I am aware of none; and the only theory entailing that fetuses enjoy 14th amendment protections is from John Finnis, a conservative. So, merely asserting (b) is insufficient, liberal prolifers need to explain how it is interpretatively possible to conclude that fetuses are persons as a matter of constitutional law.

And regarding (a), conservative prolifers are more than happy to support such an amendment. Indeed, it has only been they who have urged this as a live political option to secure protections for the unborn. Does that not tell against liberal prolifers then? For, given that they are non-originalists, their only strategy to secure protections for the fetus, other than urging a constitutional amendment (a tact they have yet to seriously pursue), is to elect politicians who will select jurists who will rule that fetuses are persons, or otherwise reverse Roe. Of course, because such politicians and jurists will be conservative, liberal prolifers are unwilling to lend their support. So in what way are they seeking to secure legal protections for the unborn? (I am not questioning the sincerity of the liberal prolifer’s convictions; just the seriousness and wisdom of their political strategies to actually advance the prolife cause.)

Hence, conservative prolifers urge their liberal counterparts to seriously consider voting for conservative politicians since that is the most prudent choice given their prolife convictions. But such a choice, you say, isn’t prudent at all since conservative politicians really are just opportunistically using prolifers to secure elections while actually doing nothing to advance the prolife cause. Their real fealty lies with big corporations

RM said...

Part 2 of my comment:

But many things tell against this argument. First, support for conservative politicians has yielded much fruit. We have passed the Hyde amendment, passed parental notification laws, and imposed a moratorium on federal funding for embryo destroying forms of stem-cell research, and secured bans on partial birth abortions. Indeed, such bans were only ruled constitutional when Roberts and Alito came onto the court. Notwithstanding the achievements of the few liberal prolife politicians like Bart Stupack, how has support for liberal politicians advanced the prolife cause?

Second, the Roberts Court merely reaffirmed rather than invented the notion that corporations have certain rights as persons. The SCOTUS ruled as such in 1886 in Santa Clara County v. Southern Pacific Railroad, though the legal personality of corporate bodies was well a established part of the common law. I think Frank Beckwith explains quite well the policy benefits of treating corporations as persons, but showing how it relates to originalism is going to be an involved story, extending this already too long post. So I will merely have to refer you to the work of Stephen Bainbridge and Larry Ribstein.

Suffice it to say that the Roberts Court treatment of corporations, but not fetuses, as persons is neither a compromise of conservative jurisprudence nor a betrayal of the conservative profiler’s prudential choice to elect conservative politicians. As our forgoing discussion showed, they never expected the court to rule as such. They only expect that if they can get five jurists with a conservative jurisprudence on the court, then the reversal of Roe is probable.

Third, the Republican support for TARP does not stem from undue fealty to big corporations. It stems more from the incompleteness of economic theory and the coalitional character of politics. Paulson et al did not bail out Lehman Brothers and allowed Bear Stearns to be bought out. In the wake of those decisions, they feared that credit markets would freeze. So they concocted the TARP scheme, which was vehemently opposed by fiscal conservatives like Richard Shelby. That Lehman and Bear Stearns were allowed to fall and TARP was opposed by likes of Shelby is sufficient to demonstrate that your theory that Republicans are purely beholden to big corporations is not sound. The eventual approval of TARP stems from the incompleteness of economics and the rival factions composing the Republican Party. There is no extant economic theory that explains when market intervention is justified. And not all Republicans are Friedmanite and Hayekian capitalists; some believe that state intervention is sometimes warranted. Fearing a total freeze of credit markets, such Republicans twisted the arms of the likes of Shelby securing the approval of TARP. But, again, this is enough to impugn the Republicans of the charge you make against them Victor.

Of course, this only explains TARP and of course there are corrupt politicians in the Republican Party, as in every party, but I do believe that similar kinds of stories of economic factionalism better explain Republican-big-government-initiatives even though the party claims the mantle of small government Reaganism. Conservatives, fiscal and otherwise, are but only one wing of the party, after all.

Politics requires building coalitions of oftentimes competing and contradictory interests. Hence, the necessity of compromise. Conservative prolifers disclaim any pretensions of having resolved all these tensions in the Republican Party. But they do claim that the best vehicle to advance their cause comes from allying with the Republican Party. Given their legislative success with the Republicans, and given that your charges against the Republicans are overwrought and underdetermined, Victor, I see no reason to question the prudence of this choice. What would be your alternative?

Rinku Mathew

RM said...

If you are interested in seeing the constitutional foundation for treating corporations as persons,

see here:

A sample:

"...The legislative history of the Fourteenth Amendment suggests that Congress substituted the word ''person'' for the word ''citizen'' precisely so that the provisions so affected would protect not just natural persons but also legal persons, such as corporations, from oppressive legislation. We see this view further confirmed Roscoe Conkling's recounting of the relevant legislative history in Conkling's arguments in San Mateo County v. Southern Pac. R.R., 116 U.S. 138 (1885). Conkling had been a member of the Joint Congressional Committee that drafted the 14th amendment and in Southern Pacific argued to the Justices that it had been the intent of Congress for the word "person" to include "legal" persons (corporations) as well as "natural" persons within the protective scope of the due process and equal protection clauses of the amendment. The Court accepted Conkling's argument...."

RM said...

sorry but it should be "immune" rather than "impugn" in the sentence:
"..this is enough to impugn the Republicans of the charge you make against them Victor."