The U.S. Supreme Court ended its term yesterday with a bang, again. We've just seen the Hobby Lobby case that grants some corporate entities the right to religious freedom under the First Amendment. I'm not sure the many people who decried the Court's granting personhood rights to corporate entities for political campaign spending in Citizens United saw this one coming – you could kind of understand a corporation speaking through its wallet, but a corporation gaining personhood to express a religious tenet based on the beliefs of its majority owners? That one is much harder to fathom, even given its supposed restriction to so-called closely held corporations.
I know there are lots of folks out there pooh-poohing any concern that this is a slippery slope to ever more corporate protections as they gain more and more rights as persons. But, we've gone from a railroad corporation surreptitiously being granted personhood status in the 1870's; to a corporation speaking with wads of cash in political campaigns in 2010; to now, a corporation being granted, under the statute enacted by Congress to give life to the free exercise clause of the First Amendment, the same rights as individual humans to exercise the firmly held religious beliefs of their majority owners. Now Congress could go in and change the statute to reflect what most who voted for it thought – that it applied only to individuals or religious institutions, not to for profit corporations, but it seems that the “corporation is a person” genie is already out of the bottle.
What's that old saying - “you're not paranoid if someone really is out to get you.” With an ever increasing body of law granting corporations ever more rights that we once thought were given only to real flesh and blood humans, why shouldn't corporations keep testing the lengths the Court will go in protecting them? What's next, corporate taxpayers being granted the right to vote in local elections, the number of votes they get commensurate with their monetary position in the community? Why shouldn't corporations get to vote in elections where issues like zoning affect their bottom line more than it does homeowners?
With the current Supreme Court session done, it's helpful to remember that Friday is Independence Day – the day we celebrate our declaration of independence from England. Most of us remember our grievances that led to the American Revolution as being against King George. What most of us don't remember, or never learned, was that many of our grievances were with King George carrying out the bidding of the few corporations that dominated colonial America, like the East India Company – the original tea partiers threw Company tea into Boston Harbor. In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.
After securing independence, our founders set out to form a governing structure. They tried governing our new country under the Articles of Confederation, but found that a system of strong state powers and relatively weaker federal powers didn't work well. Present Tea Party rhetoric ignores the founders' recognition of this failure, just as it ignores the failure of the states' rights mantra of the Confederacy. In 1787 our Constitution was adopted, to be ratified by the states in 1789 with the assurance that a Bill of Rights would be proposed and ratified, and those first ten amendments were ratified in 1791.
One of the rights insisted upon in order to assure passage of our constitution was the right to trial by jury in civil matters – the Seventh Amendment. It is the means by which we hold our government accountable. It also ensures that all men and women are entitled to a redress for wrongs done by others, including corporations. As John Adams once said about jury trials, "We have not envisioned a better fortification from being ridden like horses, fleeced like sheep, worked like cattle and fed like hounds."
One of the Court's end of session decisions, the Illinois home healthcare workers union case, Harris, reminded me of the above Adams' quote. While there was not a corporation involved in the case, it was brought with the help of corporate backed right to work groups. While the decision was narrowly drawn, it is an assault on unions – those entities that prevent workers from being “ridden like horses” and “worked like cattle.”
There is more than a bit of irony that as we celebrate our independence this year, we are experiencing ever more of the corporate dominance that we rebelled against at our nation's birth. Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role. As Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."
The moneyed interests of corporate power have been chafing at the reigns of government, the civil justice system and the right to trial by jury since our country's inception.
It's going to be hot and dry out there, please heed all fire warnings and have a safe and happy Fourth!
This is Al Smith for the Montana Trial Lawyers Association.