Return to reason: Corporations are not citizens

April 23, 2017
Sharman Haley

With the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court, it is more urgent than ever to enact a constitutional amendment clarifying that corporations are not people and are not entitled to constitutional rights.

Gorsuch's decision in the Burwell v. Hobby Lobby case in the 10th Circuit court asserted that a corporation that employs 21,000 employees qualifies as a "person exercising religion." This is ludicrous on its face!

When an employer offers health insurance, they should not be allowed to impose their own religious beliefs on their employees by limiting access to established medical services such as contraceptives or abortion. These are private choices, properly in the domain of personal religious values. The notion that the religious freedom rights of the owners of a corporation trump the religious freedom and other rights of the employees is untenable.

It is noncontroversial that there is a legitimate role for public policy in setting limits on the relationship between employers and their employees. We have wage and hour laws, nondiscrimination laws, health and safety laws, and other laws defining the rights of employees. In our current system, both before and after the Affordable Care Act, health insurance is a well-established component of employee compensation. For a large corporation, including Catholic hospitals and other large religious nonprofits, it has to be an arms-length relationship between employers and employees. The constitutional rights to religious freedom and the statutory and contractual rights to health insurance of these employees must supersede the alleged rights of the corporate employer.

Both the 10th Circuit and the U.S. Supreme Court reached their decisions under the Religious Freedom Restoration Act and did not reach the plaintiff's claim under the Free Exercise of Religion clause of the First Amendment to the Constitution, but the plaintiff's argument parallels the Supreme Court ruling in Citizens United v. FEC and thus needs to be addressed.

The notion that a corporation can claim constitutional rights of any sort is outrageously nonsensical. Modern-day corporations did not exist at the time the Constitution was written. They are creatures of statutory law, specifically the corporate codes in every state. They are not citizens and can't possibly have rights superior to the legal authority of the legislative bodies that created them. I understand why the courts over the last 130-plus years have wanted to create a body of law to define corporate status and rights under the law, but the basis for such law cannot possibly derive from the Constitution. If orderly legal process requires such a body of law, it needs to be codified in the corporate code. It is up to the legislative bodies in each state — or a multistate effort to draft a uniform corporate code — to deliberate and define in law the scope of rights and privileges corporations should enjoy.

Citizens have supreme power in our democratic system, and we have delegated this power to our elected representatives, not to the courts and certainly not to corporations.

The Citizens United ruling of course was a narrow, five-member majority ruling striking down portions of the McCain-Feingold Act, which had been enacted by a bipartisan majority of Congress to set reasonable limits on campaign finances. The four-justice minority both in Hobby Lobby and in Citizens United was right both legally and civically. Correcting the majority's error is the right and the responsibility of the citizenry through a constitutional amendment clarifying that only human beings are entitled to constitutional rights. The amendment should also clarify that money is not speech, and our elected representatives do have the authority to regulate campaign finances.

This is not a partisan issue. A 2015 Bloomberg poll showed "Republicans oppose Citizens United 80 percent to 18 percent … Democrats oppose 83 percent to 13 percent, and independents, 71 percent to 22 percent." Citizen groups across the political spectrum, from the conservative Take Back Our Republic to the progressive Move to Amend and the bipartisan American Promise, are actively organizing in support of this amendment. Eighteen states and over 700 municipalities nationwide have gone on record in support. It is high time for Alaskans to weigh in and reclaim our citizen democracy.

House Joint Resolution 48, proposing the We the People Amendment providing that the rights extended by the Constitution are the rights of natural persons only, is currently pending in the House. I encourage Rep. Young to co-sponsor it and Sens. Murkowski and Sullivan to introduce and advance a similar resolution in the Senate.

Sharman Haley is an economist and member of Move to Amend, which seeks a constitutional amendment to clarify that only individuals, not corporations, have constitutional rights.


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