Originalists Take Over The Nation

Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz’s argument — which was mostly a plain-vanilla critique of corporate rights — contains (and relies on) this gem:

Who was the “person” whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868–soon after the end of the Civil War–proves this.)

From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism — a school of thought more likely to be associated with the National Review than The Nation.

If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that’s more or less where the original understanding ends.

Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.

Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument — that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it — was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.

Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?

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17 Responses

  1. No body to be kicked, no soul to be damned

    In the Nation, Morton Mintz argues that the Supreme Court ought to return to the original meaning of the word “person” in the Fourteenth Amendment, and therefore cut back on corporate rights. Kaimi Wenger suggests that Mintz is probably a…

  2. No body to be kicked, no soul to be damned

    In the Nation, Morton Mintz argues that the Supreme Court ought to return to the original meaning of the word “person” in the Fourteenth Amendment, and therefore cut back on corporate rights. Kaimi Wenger suggests that Mintz is probably a…

  3. SCOTUSblog says:

    Blog Round-up – Thursday, October 13th

    On the Miers Nomination: Concurring Opinions has this post asking,”Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?” The post is in response to this article by Morton Mintz…

  4. Simon says:

    I’ve noticed that both liberals and conservatives are perfectly willing to adopt originalism whenever it suits their immediate need, and discard (liberals) or merely ignore (conservatives) it when it does not. The rubric for this standardless inconsistency was suggested by former Solicitor-General Seth Waxman, who opined before the supreme court in Florida Prepaid (527 U.S.) that “we are attracted by any notion, or principle, the logic of which carries us to a result we think is just.”

    Thus, liberals become quasi-originalists where the second amendment is concerned – and, it seems, where corporate personhood is concerned. Whether they are right or wrong, they have turned originalism on its head, using a process-oriented philosophy when it produces the “right” results. While I’m delighted to have them aboard, I question the sincerity of The Nation‘s conversion to The Faith.

  5. Paul Gowder says:

    Peh. There’s originalism and then there’s Originalism. Disagreeing with full-throttle, hardcore, clenched-teeth-blood-from-the-eyeballs-hair-standing-on-end-coruscating-electricity-from-the-fingertips Scaliaesque originalism does not debar one from suggesting, in appropriate cases, that parts of the constitution are most fruitfully interpreted by what was intended by the founders. Or by a reasonable translation thereof, as Lessig has suggested.

    Honestly, I find it difficult to think up any reasonable interpretation of the constitution under which corporations have rights. Then again, I find the corporation = person equation to be totally incoherent on multiple levels. Suppose I got Congress, or some court in Delaware or something, to decree that my baseball bat was a “person” and give me limited liability on its use. Would I then be able to beat people with it and disclaim personal liability, and then demand a trial — for the BAT — when the prosecutor tried to go after it?

    Shareholders may have rights as individuals, actual flesh-and-blood people, but those rights are perfectly adequately protected without giving them double-protection by also protecting their corporate toys.

  6. Paul Gowder says:

    (In fact, I think I’m going to add this to my long, long, long list of writing projects: “Law of the Bat: why corporate personhood is utterly incoherent.” Of course, at current rates, that’s about 5 years from now!)

  7. Nate Oman says:

    Paul: There is actually a pretty interesting literature on the rights of corporations and the idea that they have rights is by no means as self-evidently foolish as you seem to assume. Take a look at the work of Otto Von Gierke for one view, of John Dewey’s 1926 Yale Law Journal article on the topic. You might even be interested in this paper, which looks at the issue in the context of the law of contract.

  8. Paul Gowder says:

    Nate, from the contract angle, were you reading prawfs when Ethan posted his paper about autonomy & contracts & corps, responding to Markovits? (Despite the critique I posted then, I think he’s mostly right.)

    I’ll try to read your paper this evening (no time now)… from a skim at the introduction, I wonder how economic analysis gets to decree that autonomy is normatively correct (except via obsolete consumer sovereignty type notions), but I’ll hold comment until I’ve, like, actually read the entire thing.

  9. Nate Oman says:

    I missed the Prawfs discussion, but I have read Ethan’s paper, which I quite liked. The more I think about it, however, the less I think that the important distinction is between personal and corporate contracts, and that if we are going to divide up contracts it makes more sense to do so along subject matter lines, ie — commercial contracts, family contracts, real estate contracts, etc. (Incidentally, this is exactly what the Romans did, although the stipulatio provided a sort of residule all purpose way of creating contractual liability.)

  10. Simon says:


    I’ll leave aside the question of whether you mean the founders’ original intent or the original public meaning of the words they chose to ratify, and reach the more important question: what is the criterion you offer to determine when recourse to the original understanding is appropriate (or required, even)? What is the strange, nebulous value of the words and what they meant, that they are sometimes relevant, and sometimes not?

  11. Daniel Chapman says:

    Yes, various conservatives have selectively ignored original meaning in order to reach a desired result. This speaks to their personal failings as judges, not to any particular flaw with originalism as a legal theory.

    The fact is, to disregard the original meaning of the laws as they were adopted is to disregard the rule of law entirely. At that point, the only argument you can make is that you would rather live under the whims of nine people who (for better or worse) can alter the law as they see fit than actually go through the effort of CHANGING the law as it becomes necessary.

  12. Simon says:

    I agree with Daniel’s points; regarding the first, I usually couch it in terms of, just because Jesse Jackson and Pat Robertson are assholes doesn’t mean that there’s something inherently wrong with Christianity, and just because Antonin Scalia sometimes departs from originalism doesn’t mean that the theory is wrong – it means that people are human.

    See, I’m kinda’ leading Paul lwith my previous question, because it is, in fact, obvious when the original understanding controls. If you’re an originalist, obviously, the original understanding always controls. But if you aren’t an originalist, then it’s still obvious when you should use the original understanding: you should use it whenever the results of an originalist analysis favor the result you’re trying to reach. Of course, the latter, being results-oriented jurisprudence, is necessarily fundamentally invalid, so I don’t expect Paul to actually come out and say it as candidly as Waxman did. 😉

  13. Paul Gowder says:

    Simon: let me offer you this as sort of a shoot-from-the-hip theory in two parts. I may retract this later, or simply fail to defend it…

    I. The goal of constitutional interpretation should be to preserve the significant aspects of the relationship, particularly the relative power, between the people and their government that were contemplated by the people when they engaged in the speech acts (by proxy) that permitted the government to exist in its present form.

    II. The original public meaning of constitutional provisions is always relevant, however, it is not always determinative, because the facts which were presupposed by the public when they were engaging in the speech acts noted in [I] may have changed.

    For example (and I’m gonna steal an oft-used Lessig example here, although I don’t claim that what I’m proposing is quite the same as Lessig’s) the people may have uttered words indicating their intent that the government not be able to snoop around in the private business of the people. That intent might have been expressed with the words “no unreasonable searches” etc. When the government gains a new power to snoop around in the private business of the people — e.g. when technologies for wiretapping, long-range microphones, heat sensors, super-trained dogs, etc. are devised — it is more faithful to the intent-regarding notion of constitutional interpretation to ask “is this the kind of power that the government should have under the ideas behind the constitution” than it is to argue “does this constitute an act which is appropriately encompassed under the magic words ‘unreasonable search.'”

    Scalia-esque originalists tend to unreasonably favor the magic words approach rather than the stable relationship approach. The stable relationship approach is necessarily more flexibile. For instance, some of the underlying background facts that might be changed include the moral sense of the public or the world. So when the people in 1791 decided to forbid “cruel and unusual punishments” they presupposed a standard of morality and punitive theory which prevailed at the time, and to the extent that theory changed, so too can the interpretation.

    And let me be truly bold here and say that Gowder’s Roughly Stable Relationship Approach has reached its highest — and a perfectly faithful — expression in the penumbral emanations. Penumbral emanations are exactly the point! Are we more concerned about the words or the relationship? Is it more important to us that a series of speech acts have stable effects, or that we maintain an ethically appropriate and constraining balance of power between the people and the state? Really, what would the framers, transplanted into today, think about Griswold v. Conn.? Imagine Jefferson, transplanted into the modern age, and just think of the fit he would throw if he or someone else were busted for giving advice about contraception.

    And yes, Simon, this notion is constraining. There is a rough and relatively stable relationship between the people and their government. For example, the government can not punish you for joining a political party. The Supreme Court would not be acting faithfully if it held otherwise. At the same time, the government can not punish you for refusing to join a political party, or even (should you be so inclined) from refusing to personally associate with black people. This too is a stable part of the relationship between the people and their state (albeit an offensive one in the latter case), and the Supreme Court would again be acting unfaithfully if it ignored it. (Don’t start on employment discrimination: there’s a difference between personal/political and commercial association.) Although I would certainly endorse the result of ending, e.g., racially exclusive private clubs, I wouldn’t endorse the action of the Supreme Court if it allowed the government to forbid them. Because this “results-oriented” jurisprudence would be unfaithful even under Gowder’s Roughly Stable Relationship Approach.

    (Whether or not results-oriented jurisprudence “is necessarily fundamentally invalid” or not is a question for another day… heaven knows I’m not prepared to concede it yet. But it’s not necessary to accept results-oriented jurisprudence to have a coherent non-originalist theory of constitutional interpretation, that’s my point.)

  14. Daniel Chapman says:

    I think we have different opinions on what Thomas Jefferson would think about the Supreme Court telling a state that it can’t criminalize contraception. I don’t think even you would carry that argument so far as to include Roe and Lawrence. Beyond that though, your “relationships” theory has merit… but I think you discount federalism. Some things just aren’t within the federal government’s (including the Courts’) power to regulate.

  15. Although this debate on originalism and its manipulation by both sides is fascinating, I don’t believe that the purpose of Mintz’s questions are simply to attack the “activism” that led the Court to hold that corporations are persons. Rather, I see it as an effort to ferret out Miers’ views both on the substance of particular rights and on the jurisprudential philosophy of constitutional interpretation.

    If she agrees that the Court should not have gone beyond the original intent of the Fourteenth Amendment for corporations, then she is faithful to the jurisprudential philosophy of restraint but betrays the substantive rights considered important by a core constituency of big business Republicans. If she does the opposite, she demonstrates that she is focused on protecting particular interests rather than having a consistent jurisprudential philosophy. And by throwing in the comparison to the issue of whether a fetus is a person, Mintz’s questions catch her in the same bind, but add the potential that she may be forced to reveal whether she is a big business Republican or a conservative Christian.

    In other words, the questions seem designed to force an answerer to pick a value to serve when that value conflicts with another strongly held value of the right.

  16. Joe says:

    The Marshall and Taney courts recognized some right of corporations to sue; for instance, for this purpose, they were in effect to be treated as “citizens.” Since this predated the 14A, it is unclear why corporations should not be deemed “persons” in some limited sense as well.

    I’d add that perhaps — and maybe this is the logic used — since state definitions of “property” influences what is secured under the due process clause, the same should be said about state definitions of ‘persons’ in respect to corporations. One might even say that — in a non-originalist sense – this can be developed to give some rights to animals as a state recognized “person.” Well, maybe.

  17. Morton Mintz says:

    I just now learned of your piece of Oct. 12, oin which you wrote: “From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

    “Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868.”

    Wrong. You’ve distorted my argument, which was I that she–and now Judge Alito–should be questioned, particularly re Santa Clara County v. Southern Pacific Railroad, in which the Supreme Court, refusing even to hear argument, usurped the power of the states to regulate corporations.

    Thank you,

    Morton Mintz