Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

Suprems Ccot. U.S.

FILED

— Nos. 13-354, 13-356 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

KATHLEEN SEBELIUS,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Petitioners,

v.

HOBBY LOBBY STORES, INC., ET AL.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., ET AL.,

Petitioners,

VU.

KATHLEEN SEBELIUS,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE U.S. COURTS OF APPEALS

FOR THE THIRD AND TENTH CIRCUITS

BRIEF OF AMICI CURIAE

HISTORIANS AND LEGAL SCHOLARS

SUPPORTING NEITHER FARTY

I

—

JONATHAN MASSEY

Counsel of Record

MASSEY & GAIL LLP

1325 G St., N.W., Suite 500

Washington, DC 20005

(202) 652-4511

jmassey@masseygail.com

January 28, 2014

BATEMAN & SLADE, INC BOSTON, MASSACHUBETTS

Libres; na.” Fe

Law Lictary

TABLE OF AUTHORITIES

INTEREST OF AMICI

il.

ITT.

TABLE OF CONTENTS

History Reveals Limited

Constitutional! Protections For

EEE ESS Se

The Santa Clara Decision Did Not

Withdraw Governmental! Authority

To Regulate Corporations Via

Generally Applicable Laws. ..................

The History Of Corporate

Treatment Under the Privileges &

Immunities Clause Reinforces the

Government’s Regulatory

SE SO

. History Shows That The Fourteenth

Amendment’s Due Process Clause

Protects Corporate Property But

Neen eT sncicavasccneeonee

The Twentieth Century Emergence

of Corporate Rights Was In

Harmony With The Historical

ES

A. Economic Regulation Of

GP ENOUND. ceccccrssesssccvoecscees ansaid

B. Corporate Speech Rights. ..............

CONCLUSION

SRR

SEETHER EEE OEE THEE EEE

SEE EEE EEE EEE HEHEHE EEE

me 8

vo a

oso DA

roo OL

10 20

[This page is intentionally left blank.]

il

TABLE OF AUTHORITIES

CASES:

Adkins v. Children’s Hosp.,

PR OF is I IEE cecticseendesicccasninoumaniocounaiaies 23

Advance-Rtumely Thresher Co. v. Jackson,

Bd RDF rere M EERO TDC 23

Am. League v. Eastmead,

15 Backes 487 (N.J. Ch. Ct. 1934)... 22

Andrus v. Business Men’s Acc. Ass’n of America,

ee rs TE CN oisstsbinrancinncccabionnsudnenincisiinaiie 22

Applegate v. Travelers’ Ins. Co.,

132 S.W. 2 (Mo. Ct. App. 1910) ........... ee. 22

Ark. Writers’ Project, Inc. v. Ragland,

i te Se. y Ree Meer meme tes” 29

B.G.M. Enters. v. Harris,

482 F. Supp. 1073 (D. Mont. 1980)................ 23

Baltimore & Ohio Railroad Co. v. ICC,

- 2 Bok Bo. ae | ih | ocr ee ine peaeme rs 26

Bank of Augusta v. Earle,

38 US. (13 Pet.) 619 (1839) .......000......0cccce0ee 9,10

Bank of the U.S. v. Deveaux,

DB UD. (BH Comme) BE UBB OP vis ccsnsccnsnvcseccctsssecens 9

ill

Bell v. Maryland,

Cea ssa sadacanshdncbsanssbncdawcis 26

Calif. Bankers Ass'n v. Shultz,

EER EO 28

Cedric Kushner Promotions, Ltd. v. King,

SS a 33

Cent. Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm'n of N.Y.,

as ccnadentnobbbavsbecnscctravunsssse 32

Charlotte, Columbia and Augusta Railroad Co.

v. Gibbes, 142 U.S. 386 (1891)................... 6,14

City of Cincinnati v. Discovery Network, Inc.,

EE EE sacccsenpuseonsnanscécnvonsersoncone 29

Covington & Lexington Turnpike Rd. Co. v.

Sanford, 164 U.S. 578 (1896)................-.... 6,19

CTS Corp. v. Dynamics Corp. of Am.,

os soceceseubasisiverehwornovensveeress 33

Denver Area Ed. Telecomms. Consortium, Inc. v.

ee Ee he) 29

Dole Food Co. v. Patrickson,

sc oSisecnsscstecderecessorsorsocess 33

Domino’s Pizza, Inc. v. McDonald,

Ne ccs ssevecaveecsneososonen 33

lv

Ducat v. Chicago,

Oe re eT shea ctecwinedecsascsedcaonsaiscamacnanan 17

Federal Election Comm’n v. Wis. Right To

Life, Inc., 551 U.S. 449 (2007) ..............cceeeeeee 30

Finnish Workers Fed'n v. Horrocks,

42 F. Supp. 411 (W.D. Wash. 1941)............... 22

First Nat'l Bank of Boston v. Bellotti,

SD TE. FU LEGO coesticcecnvenscsesvonns 5, 30, 31, 33

Flint v. Stone Tracy Co.,

ee I NED: vigcdvashnpahncbsaccosssdekteaaevancered 26

G.M. Leasing Corp. v. U.S.,

ey IN a elec eer eas 25

Grosjean v. Am. Press Co.,

EE SE SE TIN as civisstscismcsencbcseebcciotons 7, 29

Hague v. CIO,

ge Ek EER OER Als 22

Hale v. Henkel,

Be I TU INS gccsciicsceiuncbinsaamnnsseeceaueces 24, 25

Hobby Lobby Stores, Inc. v. Sebelius,

SE es rs Me I aid cniccsinnnnticenvecsscevieoseents 32

Hubbard v. Mellon,

fe ye ee oe eRe Rene 27

Ins. Corp. of Ireland v. Compagnie Des Bauxites

De Guinée, 456 U.S. 694 (1982)......0......cceee. 24

Joint Anti-Fascist Refugee Cmte. v. Clark,

EOE Be Ge FP ie CA. BI vvvccccsssvcncccsssssesss 22

Leathers v. Medlock,

— _ RIESE ponn eeieLen 30

Liverpool Ins. Co. v. Mass.,

a IN srsccunsocencastnctcsnotresaccctahsation 17

Louisville, Cincinnati & Charleston Railroad Co.

v. Letson, 43 U.S. (2 How.) 497 (1844) ............ i]

Marshall v. Baltimore & Ohio Railroad,

57 US. (16 How.) 314 (1664) .........00.......0.200.0002 9

Minneapolis and St. Louis Rwy. Co. v. Beckwith,

ee le Be A os ictinccstnscetrsexccrcencs 6, 13, 14

Minneapolis Star & Tribune Co. v. Minn. Comm'r

of Revenue, 460 U.S. 575 (1983) .................0.. 30

Missouri Pac. Rwy. Co. v. Mackey,

ee Fes EE I sia irtesevcdavenciccscccedees 6, 13,14

Mo Hock Ke Lok Po v. Stainback,

74 F. Supp. 852 (D. Haw. 1947)...............0.... 22

NAACP uv. Alabama,

Be ee He TI a scckcctecdecsunssasccisnconsedvacvinee 30

NAACP v. Alabama,

a xiiccntvncdndiustuchunveniasntionaccnns 30

NAACP v. Button,

Be ee ee CE ciiisbnsiicivtsucnctesnasacontsasevionve 30

vi

New York Times Co. v. Sullivan,

EE EU, SE SEE Rsciriccsnncenaccevcssrencdusednonaponnnn 30

Nw. Nat'l Life Ins. Co. v. Riggs,

BE BPO CP coscsiencn nncssesccnsccossnnsie passim

Okla. Press Publ'g Co. v. Walling,

Ee HE CR csicntncccsescnsccsssonensecssbaensene 26

Oney v. Okla. City,

120 F. 2d 861 (10th Cir. 1941)................ccccc0s 22

Paul v. Virginia,

75 U.S. 168 (1869)................ccccccccccccossesees 15, 16

Pembina Consol. Silver Mining & Mulling Co.

v. Pennsylvania,

ere 7,16,17

Pierce v. Soc'y of Sisters,

Ee: GPU RID oisiesesccccnnsossoccsnasccencsinonebabil 22

Railroad Tax Cases,

13 F. 722 (C.C.D. Cal. 1882)........ 11, 13, 18, 20

Sable Commc'ns of Calif., Inc. v. FCC,

BOE UD. TUB CRBGB) ono cccccccccceccccesccccccscsseccnsnets 29

Santa Clara County v. S. Pac. Railroad,

118 U.S. 304 (1666).............0......00..ccecseee 5,6, 10

Santa Clara v. S. Pac. Railroad Co.,

18 F. 385 (C.C.D. Cal. 1883) ....0...00.000000... 12,15

vill

Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd.,

issn csicvesnbnesenissensensaessesenss 29

Slaughterhouse Cases,

a cic anccasscdbcdgantovenenunnvevensiness 20

Smyth v. Ames,

I CO I oc cnccinvonasstosnenceswcovssens 6, 19

Title Guaranty & Surety Co. v. Slinker,

ee ac cnninasvucnbeenanarecsentessversses 22

Turner Broad. Sys., Inc. v. FCC,

| ER 29

United States v. Bausch & Lomb Optical Co.,

IE OU IS oo occuncassunnscvoravescvseesercceesss 26

United States v. Lee,

en 32

United States v. Playboy Entm't Grp., Inc.,

ee 29

United States v. Morton Salt Co.,

I I sc csiccncesnnsvesnonesesesncsssvooses 28

Va. Pharmacy Bd. v. Va. Citizens Consumer

Council, 425 U.S. 748 (1976) .........00000..00000000- 32

Western Turf Ass'n v. Greenberg,

ee | ee 21, 22

Vill

Wheeling Steel Corp. v. Glander,

I a 7

Preeees Oi; E70. Bek WB. GEE CADE vnccscccccvncccanccoccons 25

OTHER AUTHORITIES:

“Bankers Heir Assails Income Tax Publicity,”

Baltimore Sun 22 (May 24, 1924).................. 28

“How Income Tax Publicity is Viewed by the

Editors,” Washington Post 2 (Oct. 26,

“In the Gold Fish Bowl,” Chicago Daily

I Wr i ID oes orci dicconvadctevranvaens 27

C. Peter Magrath, Morrison R. Waite: The

Triumph of Character 223-24 (1963) ............ 11

James H. Hutson, “The Bill of Rights and the

American Revolutionary Experience,” in

A CULTURE OF RIGHTS: THE BILL OF

RIGHTS IN PHILOSOPHY, POLITICS, AND

LAW, 1791 AND 1991 (Michael J. Lacey

and Knud Haakonssen, eds. 1991)................ 21

Knud Haakonssen, “From Natural Law to the

Rights of Man,” in A CULTURE OF

RIGHTS: THE BILL OF RIGHTS IN

PHILOSOPHY, POLITICS, AND LAW, 1791

AND 1991 (Michael J. Lacey and Knud

PE GD, TIED on cce cs cavcintscncesescxacesesses 21

1X

Malcolm J. Harkins, On the Road to Santa

Clara and Beyond: Travels with the

Supreme Court, Stephen J. Field and

the Corporate Person (Feb. 2010).................. 11

Michael P. Zuckert, Natural Rights and the

New Republicanism (1994)............cccceeesseeeeees 21

RULES:

hs lee Mile GF AE salcnschannbisjiecenaienidacleitianaaileutiinwniessidinnmacampeaa 1

BRIEF OF AMICI CURIAE

HISTORIANS AND LEGAL SCHOLARS

SUPPORTING NEITHER PARTY

INTEREST OF AMICI

Amici are scholars of history and law with an

important interest in the question presented and

particularly in the traditional treatment of

corporations under American law.! Amici include:

Margaret Blair is the Milton R. Underwood

Chair in Free Enterprise at Vanderbilt Law School.

An economist who focuses on management law and

finance, her current research focuses on six areas:

team production and the legal structure of business

organizations, legal issues in the governance of

supply chains, the role of private sector governance

arrangements in contract enforcement, the legal

concept of corporate “personhood,” the historical

treatment of corporations by the Supreme Court,

and the problem of excessive leverage in financial

markets.

Ruth H. Bloch, a specialist in early American

intellectual, religious, and women’s history, is

professor emerita in the Department of History at

UCLA. She is the author of VISIONARY REPUBLIC:

' This brief has been filed with the written consent of the

parties, which is on file with the Clerk of Court. The parties

(with the exception of Respondents in No. 13-354) filed blanket

consents, and Respondents in No. 13-354 have provided written

consent to this brief. Pursuant to Rule 37.6, counse)] for amici

affirms that no counsel for a party authorcd this bricf in whole

or in part, nor did any person or entity, other than amici or

their counsel, make a monetary contribution to the preparation

or submission of this brief.

MILLENNIAL THEMES IN AMERICAN THOUGHT, 1756-

1800 AND GENDER AND MORALITY IN ANGLO-

AMERICAN CULTURE, 1650-1800. She is currently

working with Naomi Lamoreaux on a book on the

history of privacy rights in America and on articles

entitled, “Corporations and the Fourteenth

Amendment” and “Legal Constraints on _ the

Development of American Non-Profit Groups, 1780-

1900.”

Eric Hilt is Associate Professor of Economics at

Wellesley College. He has written extensively on the

history of the business corporation in the United

States. In 2009 he was the recipient of the Economic

History Association’s Arthur Cole Prize.

Naomi R. Lamoreaux, a specialist in U.S.

business and economic history, is Stanley B. Resor

Professor of Economics and History and Chair of the

History Department at Yale University, and a

Research Associate at the National Bureau of

Economic Research. She has written THE GREAT

MERCER MOVEMENT IN AMERICAN BUSINESS, 1895-

1904 AND INSIDER LENDING: BANKS, PERSONAL

CONNECTIONS, AND ECONOMIC DEVELOPMENT IN

INDUSTRIAL NEW ENGLAND. She is currently working

with Ruth Bloch on a book on the history of privacy

rights in America and on articles’ entitled,

“Corporations and the Fourteenth Amendment” and

“Legal Constraints on the Development of American

Non-Profit Groups, 1780-1900.”

Jonathan Levy is an assistant professor of

history at Princeton University. He is the author of

the prize-winning FREAKS OF FORTUNE: THE

EMERGING WORLD OF CAPITALISM AND RISK IN

AMERICA (Harvard University Press, 2012).

William J. Novak is the Charles F. and Edith J.

Clyne Professor of Law at the University of Michigan

Law School. He is the author of THE PEOPLE'S

WELFARE: LAW AND REGULATION IN NINETEENTH-

CENTURY AMERICA, which won the American

Historical Association's Littleton-Griswold Prize for

Best Book in the History of Law and Society.

Ajay K. Mehrotra is Associate Dean for

Research, Professor of Law, and the Louis F. Niezer

Faculty Fellow at the Indiana University Maurer

School of Law. He is also an Adjunct Professor of

History at Indiana University, Bloomington and an

Affiliated Faculty member of the Vincent and Elinor

Ostrom Workshop on Political Theory and Policy

Analysis.

Elizabeth Pollman is Associate Professor of

Law at Loyola Law School, Los Angeles, and the

author of works on the constitutional rights of

corporations and _ issues concerning private

corporations, including Information Issues on Wall

Street 2.0, 161 PA. L. REV. 179 (2012); Reconceiving

Corporate Personhood, 2011 UTAH L. REV. 1629;

and Citizens Not United: The Lack of Stockholder

Voluntariness in Corporate’ Political Speech,

119 YALE L.J. ONLINE 53 (2009).

John Joseph Wallis is Professor of Economics

at the University of Maryland and Research

Associate at the National Bureau of Economic

Research. He is an American Economic Historian

who specializes in the interaction of political and

economic forces in American development, with

particular attention to the role of organizations and

corporations as a nexus of that interaction.

Much of the research in this brief is drawn from

papers by amici, developed through several meetings

of the ongoing “Corporations and American

Democracy” research initiative undertaken by the

Tobin Project, a non-profit research organization.

Because amici have not examined the factual

questions relating to the particular corporations at

issue in these consolidated cases, they file this brief

in support of neither party.

SUMMARY OF ARGUMENT

Amici’s historical research reveals that, in

analyzing constitutional rights and liberty interests,

this Court has not treated corporations and natural

persons the same, nor has it treated all corporations

equally. Rather, this Court has treated corporations

as artificial] entities distinct from natural persons

and has recognized that corporations come in many

types and are organized for different purposes. In

general, this Court has extended rights to

corporations when necessary to protect the interests

of netural persons, and especially when those

interests are directly related to the corporation’s

primary purpose. Corporate rights are thus

derivative. It is important to examine the historical

basis for the distinctions between corporations and

natural persons, and between for-profit business

corporations and nonprofit corporations (including

churches, advocacy groups, and similar

organizations).

This Court has been especially sparing in

extending rights, especially liberty rights under the

Fourteenth Amendment, to for-profit business

corporations. In First National Bank of Boston v.

Bellotti,? then-Justice Rehnquist, writing in dissent,

noted that this Court historically drew a distinction,

for Fourteenth Amendment purposes, between the

property and _ liberty interests of business

corporations. In the decades following the adoption

of the Fourteenth Amendment, the corporate “rights”

recognized by this Court were largely limited to

property and contract entitlements, in circumstances

where the interests of the underlying shareholders

or owners so required.

Justice Rehnquist acknowledged, citing Santa

Clara County v. Southern Pacific Railroad,’ that the

Court had decided “at an early date,” although “with

neither argument nor discussion,” that a “business

corporation is a ‘person’ entitled to the protection of

the Equal Protection Clause of the Fourteenth

Amendment” and that “[lJjikewise, it soon became

accepted that the property of a corporation was

protected under the Due Process Clause of that same

Amendment.” But, he pointed out, the Court “soon

thereafter” concluded that the liberty protected by

the same Due Process Clause was “the liberty of

natural, not artificial persons.”5

Justice Rehnquist was correct. During the late

nineteenth and early twentieth centuries, this Court

parsed the various clauses of the Fourteenth

Amendment in different ways, so that some of them

applied to corporations but others, such as the due

process protection for liberty, emphatically did not.

2435 U.S. 765 (1978).

3118 U.S. 394 (1886).

4435 U.S at 822 (emphasis added).

5 Id. at 822.

In particular, beginning in 1886 with the case of

Santa Clara County v. Southern Pacific Railroad,®

the Court treated the Equal Protection Clause as

applying to corporations. It also interpreted the Due

Process Clause as protecting corporate property.’

That, however, was the extent of it. In 1906, the

Court held in Northwestern National Life Insurance

Company v. Riggs that the liberty protected by the

Fourteenth Amendment was “the liberty of natural,

not artificial persons.”® Nor did the Court ever hold

that corporations were “persons whom a State may

not deprive of ‘life’ within the meaning of the second

clause of the second sentence”? or that the privileges

and immunities of citizens extended to

corporations. !°

In adopting these limited protections for

corporations, the Court repeatedly confirmed that

business corporations remained fully subject to

government regulation. In particular, the Court did

6 Santa Clara County v. Southern Pacific Railroad, 118

U.S. 594 (1886). See also Missouri Pacific Railway Co. v.

Mackey, 127 U.S. 205 (1888); Minneapolis and St. Louis

Railway Co. v. Beckwith, 129 U.S. 26 (1889); Charlotte,

Columbia and Augusta Railroad Co. v. Gibbes, 142 U.S. 386

(1891).

7 See, e.g., Minneapolis and St. Louis Railway Co. v.

Beckwith, 129 U.S. 26 (1889); Covington & Lexington Turnpike

Road Co. v. Sanford, 164 U.S. 578 (1896); Smyth v. Ames, 169

U.S. 466 (1898).

8 Northwestern National Life Insurance Co. v. Riggs, 203

U.S. 243, 255 (1906).

% See Wheeling Steel Corp. v. Glander, 337 U.S. 562, 579

(1949).

10 See, eg., Pembina Consolidated Silver Mining and

Milling Co. v. Pennsylvania, 125 U.S. 181 (1888).

6

not create exemptions for for-profit business

corporations from generally applicable,

nondiscriminatory rules. Nor did the Court base its

corporate-rights jurisprudence on the notion that a

corporation was a constitutionally-protected “person”

in its own right. The Court always treated

corporations as artificial entities.

The twentieth century saw the selective

incorporation of the Press Clause’! and the

recognition of First Amendment rights for publishers

and broadcasters, as well as for advocacy

organizations. In Bellotti and successor cases, this

Court also protected corporate speech, though chiefly

for instrumental purposes (the interests of the

audience in new contributions to the marketplace of

ideas), rather than for reasons of corporate self-

expression or self-actualization.

However, this Court never overruled the

decisions drawing a constitutional distinction

between corporate liberty and property rights. Nor

has this Court ever upheld a religious liberty or free

exercise claim brought by a for-profit corporation

(even a closely held one).

Because amici have not examined the factual

issues regarding the specific corporations at issue,

they take no position on the proper disposition of the

instant cases. However, their research reveals that

corporations have always been treated as artificial

entities under U.S. law, and that it would be

inconsistent with historical practice to extend the

same liberty interests to for-profit business

corporations as natural persons enjoy.

1. Grosjean v. American Press Co., 297 U.S. 233 (1936).

ARGUMENT

I. History Reveals Limited Constitutional

Protections For Corporations.

This Court’s earliest decisions addressing the

status of corporations reveal little protection for the

rights of corporations qua corporations. On the

whole, the case law reflected a view of the

corporation as an artificial entity representing an

association of individuals. Further, the rights

recognized were largely limited in scope to property

and contract entitlements.

For example, in Bank of the United States v.

Deveaux,'? the Court (per Marshall, C.J.) held that a

corporate entity was not a “citizen” for purposes of

diversity jurisdiction, in a case involving a bank’s

challenge to a state tax statute:

That invisible, intangible, and artificial

being, that mere legal entity, a corporation

aggregate, is certainly not a citizen; and,

consequently, cannot sue or be sued in the

courts of the United States, unless the rights

of the members, in this respect, can be

exercised in their corporate name.}4

2 9 US. (5 Cranch) 61 (1809).

13 Id. at 86. The Court subsequently overruled Deveaux

and held that, for purposes of diversity jurisdiction, a

corporation is a “citizen” of the state in which it is incorporated.

Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 43

U.S. (2 How.) 497, 555 (1844). Just ten years later, the Court

in Marshall v. Baltimore & Ohio Railroad, 57 U.S. (16 How.)

314, 325-29 (1854), changed position again, holding that a suit

by or against a corporation should be regarded as a suit by or

against its shareholders and adopting a conclusive presumption

8

Similarly, in Bank of Augusta v. Earle,'4 the

Court held that a corporation is not a “citizen” for

purposes of the Privileges and Immunities Clause of

Article IV, § 2.15

After the adoption of the Fourteenth

Amendment, this Court considered the application of

the Equal Protection Clause to business corporations

in Santa Clara v. Southern Pacific Railroad. The

reported opinion begins with a statement attributed

to Chief Justice Morrison R. Waite at the start of

oral arguments:

The court does not wish to hear argument on

the question whether the provision in the

Fourteenth Amendment to the Constitution,

which forbids a State to deny to any person

within its jurisdiction the equal protection of

the laws, applies to these corporations. We

are all of opinion that it does.'®

There is no comparable statement about

corporations and the Fourteenth Amendment in the

actual decision of the case because the Court

deliberately avoided the constitutional questions

that the railroads had hoped to raise and instead

based its ruling solely on California law.

The decision to print the statement in the first

place seems to have been the doing of the Court’s

that all shareholders of a corporation are citizens of the state of

incorporation.

14 38 U.S. (13 Pet.) 519 (1839).

5 Id. at 587.

146 Santa Clara County v. Southern Pacific Railroad, 118

U.S. 394 (1886).

reporter, J. C. Bancroft Davis. Davis had originally

submitted it for the Chief Justice’s approval in the

form of a paraphrase, not a direct quotation. The

Chief Justice responded that Davis expressed “with

sufficient accuracy what was said before the

argument began,” but added, “I leave it with you to

determine whether anything need be said about it in

the report inasmuch as we avoid meeting the

constitutional question in the decisions.” Davis not

only left the statement in the report but set the

paraphrase in quotation marks.!’

Needless to say, this provenance is odd for a

statement that would be repeatedly cited as

precedent by this Court and other courts, especially

given that the Chief Justice’s purpose in making it

was precisely to avoid a ruling on the constitutional

issue. The answer to the question of how the

statement came to be treated as precedent is

surprisingly simple: It was the doing of Justice

Stephen J. Field.

Justice Field had articulated his own views on

the larger constitutional issues in circuit court

opinions involving a provision of California’s 1879

constitution that assessed taxes on property held by

railroads differently from other property.!® Justice

17 For the exchange between Waite and Bancroft, see C.

Peter Magrath, MORRISON R. WAITE: THE TRIUMPH OF

CHARACTER 223-24 (1963); Malcolm J. Harkins, On the Road to

Santa Clara and Beyond: Travels with the Supreme Court,

Stephen J. Field and the Corporate Person (Feb. 2010),

http://works.bepress.com/malcolm_harkins/1, accessed on

January 7, 2014.

148 One group was consolidated under the title of The

Railroad Tax Cases, 13 F. 722(C.C.D. Cal. 1882), and the other

10

Field, who heard the suits alongside a loca) federal

judge, wrote opinions in both cases, holding that the

taxes violated the railroads’ rights under the

Fourteenth Amendment. Justice Field explained

that “private corporations consist of an association of

individuals united for some lawful purpose, and

permitted to use a common name in their business

and have succession of membership without

dissolution.”!9 The individuals “do not, because of

such association, lose their rights to protection, and

equality of protection.”2° In Justice Field’s view, the

Fourteenth Amendment protects the property of

persons — to whom he referred as “members” or

“corporators” — who were “united” or “associated”

together in a “corporation” or “union.”! “[I]n

declaring that no state shall deny to any person

within its jurisdiction the equal protection of the

laws,” Justice Field opined, the Fourteenth

Amendment “imposes a limitation upon the exercise

of all the powers of the state which can touch the

individual or his property .... Unequal exactions in

every form, or under any pretense, are absolutely

forbidden .... It is not possible to conceive of equal

protection under any system of laws where arbitrary

and unequal taxation is permissible; where different

persons may be taxed on their property of the same

kind, similarly situated, at different rates.”22

under the title Santa Clara v. Southern Pacific Railroad Co., 18

F. 385 (C.C.D. Cal. 1883).

19 Santa Clara, 18 F. at 402.

2 Id.

21 Id. at 402-04.

22 The Railroad Tax Cases, 13 F. 722, 733 (1882). The local

judges wrote concurring opinions in both cases.

11

When Justice Field could not convince the other

Justices to take a similarly broad position in the

Santa Clara case, he turned Chief Justice Waite’s

statement into precedent by citing it in subsequent

opinions for the Court.?%

II. The Santa Clara Decision Did Not

Withdraw Governmental Authority To

Regulate Corporations Via Generally

Applicable Laws.

However, the Court’s precedents (even opinions

authored by Justice Field himself) make clear that

Santa Clara did not interfere with efforts to regulate

corporations by subjecting them to. generally

applicable laws. Indeed, the Court most often cited

Santa Clara in decisions upholding state regulatory

statutes. Just two years after Santa Clara, for

example, the Court upheld a Kansas statute making

railroads liable for injuries to workers caused by the

mismanagement or negligence of other employees.”

Conceding the Santa Clara _ precedent “that

corpcrations are persons within the meaning” of the

Fourteenth Amendment, the Court (per Field, J.)

observed that when legislation imposes “additional

liabilities” on “particular bodies or associations,” it

does not deny them “the equal protection of the laws,

if all persons brought under its influence are treated

alike under the same conditions.” The particularly

“hazardous character of the business of operating a

23 See, e.g., Missouri Pacific Railway Co. v. Mackey, 127

U.S. 205 (1888); and Minneapolis & St. Louis Railway Co. v.

Beckwith, 129 U.S. 26, 28 (1889).

24 Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205

(1888).

12

railroad would seem to call for special legislation ...

having for its object the protection of their employees

as well as the safety of the public.” So long as the

law made all railroad corporations “subject to the

same liabilities,” the law was constitutional.25

The next year, the Court (per Field, J) similarly

upheld an Iowa law mandating that railroads that

failed to erect fences along their right of ways must

reimburse farmers for livestock injured or killed by

trains,26 and two years after that a South Carolina

law that imposed a special tax on railroads to pay

the costs of the commission the state had created to

regulate them (again per Field, J.).27

Accordingly, Santa Clara was never understood

as barring even-handed regulation of corporations by

the government. Indeed, Justice Field himself never

viewed corporations in the same light as natural

persons. To the contrary, he explained in his circuit

court decision in Santa Clara that “corporations are

creatures of the state” and “could not exist

independently of the law.” Precisely because they

were its creatures, the state might prescribe the

conditions “upon which they may be formed and

continued.”28 That is, the state might regulate the

activities of these “artificial” persons in the interests

25 Id. at 209-10.

26 Minneapolis and St. Louis Railway Co. v. Beckwith, 129

U.S. 26 (1889).

27 Charlotte, Columbia and Augusta Railroad Co. v.

Gibbes, 142 U.S. 386 (1891).

28 Santa Clara v. Southern Pacific Railroad Co., 18 F. 385,

402 (1883).

13

of the “natural” persons who were its real

constituents.

III. The History Of Corporate Treatment Under

the Privileges & Immunities Clause

Reinforces the Government’s Regulatory

Authority.

The Privileges & Immunities Clause provides

further evidence that Santa Clara does not interfere

with governmental authority to regulate

corporations. In the decades following the Civil War,

large-scale corporations began to operate on a

national scale, and disputes arose when corporations

sought to do business in states that had not

chartered them — in particular, when corporations

formed in states with lenient laws tried to set up

shop in states whose laws were more restrictive. If

states were required to grant corporations formed in

other jurisdictions the same privileges and

immunities as citizens, then state regulatory powers

would be undermined.

This Court (per Field, J.) first confronted this

issue in Paul v. Virginia, just months after the

Fourteenth Amendment was ratified.29 Although

the case involved the Privileges and Immunities

Clause of Article IV rather than the corresponding

Clause of the Fourteenth Amendment, it served as

the precedent for a long stream of Fourteenth

Amendment decisions denying corporations the

privileges and immunities of citizens. The Paul

Court held that the privileges and immunities

guaranteed by Article IV did not extend to the

“special privileges” that states granted in the form of

2’ Paul v. Virginia, 75 U.S. 168 (1869).

14

corporate charters. A corporation, “being the mere

creation of local law,” could have “no legal existence

beyond the limits of the sovereignty” that created it.

Other states might admit such “foreign” corporations

“upon such terms and conditions” as they thought

“proper to impose,” or could even, if they wished,

exclude them altogether. “The whole matter rest/ed]

in their discretion.”*°

After Paul v. Virginia, this Court repeatedly

upheld state laws imposing regulatory restrictions

on corporations chartered by other jurisdictions, and

Santa Clara did not hinder this stream of decisions.

In the 1888 case of Pembina Consolidated Silver

Mining and Milling Company v. Pennsylvania,*' the

Court (again per Field, J.) upheld a Pennsylvania

licensing tax on corporations chartered elsewhere

that opened offices in the state. The Court

confirmed that the privileges and immunities

protected by Article IV applied only to natural

persons, not corporations, reiterating the reasoning

in Paul v. Virginia that corporations “had no

absolute right of recognition in other States” — that

states not only had the authority to regulate

corporations chartered elsewhere but also could

“exclude |them) entirely.” The Court then

addressed explicitly the question of the applicability

of the Fourteenth Amendment to the case. Echoing,

but not citing, Chief Justice Waite’s statement in

Santa Clara, the Court expressed “no doubt” that a

* Id. at 181.

») Pembina Consolidated Silver Mining and Milling Co. v

Pennsylvania, 125 U.S. 181 (1888).

32 Jd. at 185.

15

private corporation was covered by the “inhibition of

the amendment that no State shall deprive any

person within its jurisdiction of the equal protection

of the laws.” But, the Pembina Consolidated Silver

Mining Court explained, the equal protection that

corporations “may claim is only such as is accorded

to similar associations within the jurisdiction of the

State.” Nothing in the Constitution prohibited a

state from “discriminating in the privileges it may

grant to foreign corporations.”**

IV. History Shows That The Fourteenth

Amendment’s Due Process Clause Protects

Corporate Property But Not Liberty.

The Santa Clara line of cases arose under the

Fourteenth Amendment's Equal Protection Clause.

With regard to due process, this Court drew a sharp

distinction between the rights of natural and

corporate persons under the Fourteenth Amendment

and recognized corporate rights to property but not

to liberty.

In the 1906 case of Northwestern National Life

Insurance Company v. Riggs, this Court upheld a

Missouri law requiring insurance companies to pay

out on policies in cases where the decedent had not

been completely truthful on the application for

insurance but where the deception was unconnected

with the cause of death. The Court took as its

%2 Pembina Consolidated Silver Mining and Milling Co. v

Pennsylvania, 125 U.S. 181, 188-89 (1888); see also Ducat v

Chicago, 77 US. 410 (1871); Liverpool Insurance Co. v.

Massachusetts, 77 U.S. 566 (1871)

% Northwestern National Life Insurance Co. v. Riggs, 203

U.S. 243 (1906)

16

starting point the principle that corporations “may

invoke the protection of that clause of the

Fourteenth Amendment which declares that no

State shall ‘deny to any person within its jurisdiction

the equal protection of the laws.”35 But the Court

reasoned that a state had the power “to regulate the

relative rights and duties of all persons and

corporations within its jurisdiction ... to provide for

the public good.”“6 The Court opined that

Missouri’s law was a reasonable exercise of the

state’s police powers because insurance companies

had engaged in abusive practices, using innocent

inaccuracies in applications as a pretext for denying

claims. Moreover, because the law applied “alike to

all life insurance companies doing business in

Missouri,” it did not deny the company “the equal

protection of the laws.”37 The Court then broke new

ground by declaring that the Due Process Clause of

the Fourteenth Amendment did not bar the state’s

regulation:

Equally without foundation is the contention

that the statute, if enforced, will be

inconsistent with the liberty guaranteed by

the Fourteenth Amendment. The liberty

referred to in that Amendment is the liberty

of natural, not artificial persons.

The principle that corporations were protected

persons in the sense that their property could not be

% Id. at 253.

% Id.

37 Id. at 255.

38 Northwestern National Life Insurance Co. v. Riggs, 203

U.S. 243, 255 (1906).

17

taken without due process had already been treated

by the Court as a logical extension of the Santa

Clara precedent.2? However, Northwestern National

Life Insurance v. Riggs was the first time this Court

addressed the question of whether corporations were

persons whose liberty was constitutionally protected

as well. In asserting that they were not, the Court

did not feel compelled to cite precedent. The Court

evidently found the point so obvious that it needed

no justification.

Indeed, the idea that the Fourteenth

Amendment protected the liberty of natural persons

but not corporations had long been implied by the

case law. Justice Field had laid out the distinction

as early as his circuit court opinion in the Railroad

Tax Cases: the amendment protected the property of

corporations because corporate property “in fact”

belonged to “the corporators,” but it did not protect

the life and liberty of corporations because “the lives

and liberties of the individual corporators are not the

life and liberty of the corporation.”4°

Although Northwestern National Life Insurance

Company v. Riggs was the first Supreme Court

decision explicitly to state that corporations did not

have Fourteenth-Amendment protections for liberty,

the understanding of liberty on which the holding

rested pervaded the late-nineteenth-century

jurisprudence. The opinion in Northwestern National

Life Insurance Co. v. Riggs defined “the liberty

3%” See, eg., Covington & Lexington Turnpike R. Co. v.

Sandford, 164 U.S. 578 (1896); Smyth v. Ames, 169 U.S. 466

(1898).

” The Raulroad Tax Cases, 13 F. 722, 747 (1882).

18

guaranteed by the Fourteenth Amendment against

deprivation” as embracing “the right to pursue a

lawful calling and enter into all contracts proper,

necessary and essential to the carrying out of the

purposes of such calling.”*?

This conception of liberty can be traced back

through numerous opinions to Justice Field’s famous

dissent in the Slaughterhouse Cases in 1873, which

in turn drew on the broader natural rights tradition

of the American Revolution.42 The “distinguishing

privilege of citizens of the United States,” Justice

Field insisted, was an “equality of right, with

exemption from all disparaging and partial

enactments, in the lawful pursuits of life.”4* This

conception of liberty referred to natural persons

rather than artificial ones and addressed the

importance of life and work for ordinary people, as

well as the notion of an avocation or calling. The

reasoning was part of a natural! rights tradition that

harkened back to the American Revolution.“

41 Northwestern National Life Insurance Co. v. Riggs, 203

U.S. 243, 253 (1906).

42 Slaughterhouse Cases, 83 U.S. 36 (1873).

43 Jd. at 109-10.

* For historical work on this tradition, see especially

Michael P. Zuckert, NATURAL RIGHTS AND THE NEW

REPUBLICANISM (1994); Knud Haakonssen, “From Natura] Law

to the Rights of Man,” in A CULTURE OF RIGHTS: THE BILL OF

RIGHTS IN PHILOSOPHY, POLITICS, AND LAW, 1791 AND 1991 19-

61 (Michael J. Lacey and Knud Haakonssen, eds. 1991), and

James H. Hutson, “The Bill of Rights and the American

Revolutionary Experience,” in the same volume, pp. 62-97.

19

The Court drew the same line using the same

language in Western Turf Association v. Greenberg.*®

The Court upheld a California statute regulating

places of public amusement against a challenge by

an incorporated racetrack. After opining that the

statute did not violate the Fourteenth Amendment’s

Equal Protection Clause because it applied “alike to

all persons, corporations or associations” operating

in this business, the Court proceeded to hold that the

company could not claim the protection of the Due

Process Clause, either. Citing Northwestern

National Life Insurance Co., the Court declared that

“the liberty guaranteed by the Fourteenth

Amendment against deprivation without due process

of law is the liberty of natural, not artificial,

persons."*6 The same statement appeared in such

twentieth century decisions as Pierce v. Society of

Sisters (1925) and Hague v. CIO (1939).#?

45 Western Turf Association v. Greenberg, 204 U.S. 359

(1907).

* Id. at 363.

” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925);

Hague v. CIO, 307 U.S. 496, 528 (1939). The statement is also

cited in Applegate v. Travelers’ Insurance Co., 132 S.W. 2

(1910); Title Guaranty & Surety Co. v. Slinker, 42 Okla. 811

(1914); Andrus v. Business Men’s Acc. Ass’n of America, 283 Mo.

442 (1920); American League v. Eastmead, 15 Backes 487 (N.J.

Ch. Ct. 1934); Oney v. Oklahoma City, 120 F. 2d 861 (10th Cir.

1941); Finnish Workers Federation v. Horrocks, 42 F. Supp. 411

(W.D. Wash. 1941); Mo Hock Ke Lok Po v. Stainback, 74 F.

Supp. 852 (D. Haw. 1947); Joint Anti-Fascist Refugee

Committee v. Clark, 177 F. 2d 79 (D.C. Cir. 1949).

20

V. The Twentieth Century Emergence of

Corporate Rights Was In Harmony With

The Historical Understanding.

During the twentieth century, the Court

continued to treat artificial and natural persons

differently. The Court recognized that corporations

were creatures of governments and, as a general

rule, extended them constitutional protections only

when it was necessary to safeguard the rights of the

natural persons who made them up.

A. Economic Regulation Of Corporations.

For example, during the Lochner era, the Court

invoked substantive due process to invalidate state

laws affecting wages, working conditions, and public

health and safety. Although some of the plaintiffs in

the Lochner-era cases were corporations, the

decisions hinged on the individual employees’ liberty

of contract, rather than the rights of corporations.*®

46 See, e.g., Adkins v. Children’s Hospital, 261 U.S. 525 (1923).

A federal district court later asserted this Court “implicitly

[found] in several cases that corporations had a liberty of

contract which was protected by the Due Process Clause,”

B.G.M. Enterprises v. Harris, 482 F. Supp. 1073, 1077 (D.

Mont. 1980), but the only case it was able to cite was Advance-

Rumely Thresher Co. v. Jackson, 287 U.S. 283 (1932). In fact,

Advance-Rumely Thresher held no such thing. It involved a

suit by a company (whose incorporation status was not noted)

against an individual farmer, whose liberty of contract was at

stake. The only mention of the word “corporation” in the

decision was in a quotation from the state statute. Cf.

Insurance Corporation of Ireland v. Compagnie Des Bauxites De

Guinee, 456 U.S. 694, 702-03 n.10 (1982) (applying minimum

contacts test to corporations).

21

In Hale v. Henkel, the Court rejected a

corporation’s claim to the Fifth Amendment right

against self-incrimination,’®? in keeping with the

train of decisions that followed from Paul v. Virginia

and Santa Clara. Unlike human persons, the Court

opined, corporations were creatures of the states

that chartered them. When a state granted “certain

special privileges and franchises” to a corporation,

the latter held them only “so long as it obey[ed] the

laws of its. creation.” Hence, states could

legitimately require corporations “charged with an

abuse of such privileges” to produce their books and

papers. The Court did not cite any precedent for this

ruling; the point apparently was too obvious: “It

would be a strange anomaly to hold that a State,

having chartered a corporation to make use of

certain franchises,” could not verify whether these

franchises “had been abused.” Moreover, in this

instance, the Court asserted, the states’ authority

carried over to the federal government. Because the

powers of the states were subordinate to those of

Congress in matters of interstate commerce, the

federal government had a similar right to compel

testimony in cases involving commerce that

extended across state lines.°

The Court was more sympathetic to the claim

that the Fourth Amendment protected’ the

corporation against unreasonable searches and

seizures. Using a logic similar to Justice Field’s in

his circuit-court opinions in Santa Clara and the

Railroad Tax Cases, the Court reasoned that a

corporation was, “after all, but an association of

#* 201 US. 43 (1906).

Id. at 74-75.

22

individuals.” When these individuals organized

themselves “as a collective body,” they did not waive

any “constitutional immunities appropriate to such

body.” Therefore, the corporation’s “property [could

not] be taken without compensation.” The

corporation could “only be proceeded against by due

process of law, and [was] protected, under the

Fourteenth Amendment, against unlawful

discrimination.” By the same token, it should not be

subject to unreasonable search and seizure, and in

the present case, the grand jury’s subpoena was “far

too sweeping in its terms to be regarded as

reasonable.”5! Although this part of the opinion did

not affect the disposition of the case — for other

reasons the Court affirmed the order to produce the

subpoenaed documents — it is noteworthy because it

highlights the reluctance of the Court to base the

constitutional protections afforded corporations on

the entities’ status as legal persons, grounding them

instead in the rights of the individual human beings

who made them up. The line drawn in Hale v.

Henkel would prove to be of lasting importance.52

Another set of cases that distinguished the

protections for liberty afforded corporations and

natural persons centered on the income tax, and in

particular on the right to privacy implicated by tax

enforcement actions. In the 1911 case of Flint v.

51 Id. at 76-77.

52 See G.M. Leasing Corp. v. United States, 429 U.S. 338

(1977). For other examples of the ongoing vitality of the

distinction, see Wilson v. United States, 221 U.S. 361 (1911);

Baltimore & Ohio Rautlroad Co. v. ICC, 221 U.S. 612 (1911);

United States v. Bausch & Lomb Optical Co., 321 U.S. 707

(1944); Oklahoma Press Publishing Co. v. Walling, 327 U.S.

186 (1946); Bell v. Maryland, 378 U.S. 226 (1964).

23

Stone Tracy Co.,53 the Court rejected an invasion-of-

privacy challenge to the provision of a tax statute

that made corporate returns a matter of public

record and thus open to inspection. After the

ratification of the Sixteenth Amendment, this

pronouncement became the basis for a later appeals-

court decision regarding personal income tax

returns. In the Revenue Act of 1924, Congress

mandated that the Commissioner of Internal

Revenue “cause to be prepared and made available

to public inspection” a list of the names and

addresses of all tax payers “together with the

amount of the income tax paid.”55 This list, which

included both individual and corporate tax payers,

was published in many newspapers and provoked

widespread outrage until Congress repealed that

part of the law in 1926.56 Although protesters

recognized that the law applied to human persons

and corporations alike, they focused their ire on the

harm this unwanted publicity would do to

individuals, deploring the provision as “a scandalous

march into the privacy of the citizen’s rights in

53 Flint v. Stone Tracy Co., 220 U.S. 107 (1911).

54 Id. at 175.

55 Quoted in Hubbard v. Mellon, 5 F.2d 764 (D.C. Cir.

1925).

56 The 1926 law still mandated the Commissioner of

Internal Revenue to make a list of taxpayers available for

public inspection, but the list no longer included the amount of

tax paid. Compare §257 of the Revenue Act of 1926 (44 Stat. 9)

with the same section of the Revenue Act of 1924 (43 Stat. 253).

24

which he thought he was protected by his

constitution.”°7

Over time, this Court would become more

solicitous of the privacy rights of individuals, but it

would also increasingly differentiate such rights

from those of corporations. As the Court declared in

the 1950 case of United States v. Morton Salt Co.,

corporations “may and should have protection from

unlawful demands made in the name of public

investigation,” but they “can claim no equality with

individuals in the enjoyment of a right to privacy.”

The Court went on to explain that corporations “are

endowed with public attributes. They have a

collective impact on society, from which they derive

the privilege of acting as artificial entities.... Even if

one were to regard the request for information in the

case as caused by nothing more than official

curiosity, nevertheless law-enforcing agencies have a

legitimate right to satisfy themselves that corporate

behavior is consistent with the law and the public

57 “In the Gold Fish Bowl,” Chicago Daily Tribute 8 (Jun. 4,

1924). See especially the roundup of commentary from

newspapers around the country in “How Income Tax Publicity

is Viewed by the Editors,” Washington Post 2 (Oct. 26, 1924).

Amici have not found any writing from this period attacking

the publicity requirement as an infringement on the

constitutional rights of corporations, as opposed to individuals.

To the contrary, opponents of the law argued that “publication

is not going to affect the banks and other financial institutions

or other corporations, for their books are open to the inspection

of all stockholders and are practically public. The man who is

going to be hurt is the most useful man in the community and

the one who can least afford it.” William J. Casey, Vice

President of Continental Trust Co., quoted in “Bankers Heir

Assails Income Tax Publicity,” Baltimore Sun 22 (May 24,

1924).

interest.”58 In California Bankers Ass'n v. Shultz,

upholding the anti-money laundering provisions of

the Bank Secrecy Act of 1970, the Court reaffirmed

the distinction between the privacy rights of

individuals and corporations.°9

B. Corporate Speech Rights.

Beginning in the twentieth century and

continuing through today, this Court has frequently

upheld the constitutional claims of corporations in

the context of First Amendment speech rights. But

such decisions can be harmonized with the

traditiona] distinctions this Court has drawn with

respect to corporations.

For example, this Court’s selective incorporation

of the Press Clause in 1936 heralded the

recognition of rights for publishers and broadcasters,

which have often been zealously protected in

subsequent decisions.®! However, the _ First

58 United States v. Morton Salt Co., 338 U.S. 632, 652

(1950).

59 Culifornia Bankers Assn. v. Shultz, 416 U.S. 21, 59-67

(1974).

® Grosjean v. American Press Co., 297 U.S. 233 (1936).

61 E.g., Denver Area Ed. Telecommunications Consortium,

Inc. v. FCC, 518 U.S. 727 (1996); United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803 (2000); Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994); City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993);

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims

Bd., 502 U.S. 105 (1991); Sable Communications of Cal., Inc. v.

FCC, 492 U.S. 115 (1989); Arkansas Writers' Project, Inc. v.

Ragland, 481 U.S. 221 (1987); Minneapolis Star & Tribune Co.

vu. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); New

York Times Co. v. Sullivan, 376 U.S. 254 (1964); but see

Leathers v. Medlock, 499 U.S. 439 (1991) (upholding against

26

Amendment rights of the press, which are the focus

of a specific textual guarantee, do not necessarily

imply a broader grant of constitutionally protected

liberty interests, particularly with respect to for-

profit business corporations that are not part of the

press. Then-Justice Rehnquist made the same point

in his Bellotti dissent.®

Further, in the 1950s the Court began to

recognize associational and speech rights of

nonprofit advocacy organizations such as_ the

NAACP.®3 Again, the rights of nonprofit membership

corporations organized for advocacy purposes say

little about the proper treatment of for-profit

business corporations, as Justice Rehnquist also

noted.

To be sure, in Bellotti and successor cases, this

Court has accorded First Amendment protection to

speech by business corporations, but largely for

instrumental purposes (the interests of the audience

in new ideas and information), rather than for

reasons of corporate self-expression or _self-

actualization.** This Court’s statement in Bellotti

First Amendment challenge the application of a general state

tax to cable television services).

62 See Bellotti, 435 U.S. at 822 (dissenting opinion).

63 See NAACP v. Alabama, 357 U.S. 449 (1958); NAACP v.

Alabama, 377 U.S. 288 (1964); NAACP v. Button, 371 U.S. 415

(1963). For more recent cases involving advocacy groups, see,

e.g., Federal Election Comm'n v. Wisconsin Right To Life, Inc.,

551 U.S. 449 (2007).

* Sce Bellotti, 435 U.S. at 822 (Rehnquist, J., dissenting).

6 See Bellotti, 435 U.S. at 804-05 (White, J., joined by

Brennan and Marshall, JJ., dissenting) (speech of business

corporation “is not fungible with communications emanating

27

that political speech does not lose First Amendment

protection “simply because its source is a

corporation” is an_ affirmation of the

consequentialist value of expression in the

marketplace of ideas — not a reference to the right of

a business corporation to autonomy or self-

realization. Similarly, this Court has explained that

commercial speech is protected because it “assists

consumers and furthers the societal interest in the

fullest possible dissemination of information.”6’

In short, this Court never overruled the decisions

drawing a distinction between artificial and natural

persons, or between corporate liberty and property

rights. It has not used the Due Process Clause to

grant exemptions to for-profit businesses from

generally applicable, nondiscriminatory laws on the

basis of liberty interests. Nor has this Court ever

upheld religious liberty or free exercise claims

brought by for-profit corporations and_ their

from individuals and is subject to restrictions which individual

expression is not. Indeed, what some have considered to be the

principal function of the First Amendment, the use of

communication as a means of self-expression, self-realization,

and self-fulfillment, is not at all furthered by corporate speech.

It is clear that the communications of profitmaking

corporations are not ‘an integral part of the development of

ideas, of mental exploration and of the affirmation of self”).

6 Bellotti, 435 U.S. at 784.

6° Central Hudson Gas & Elec. Corp. v. Public Service

Commission of New York, 447 U.S. 557, 561-62 (1980); see also

Virginia Pharmacy Board v. Virginia Citizens Consumer

Council, 425 U.S. 748, 763 (1976) (“As to the particular

consumer's interest in the free flow of commercial information,

that interest may be as keen, if not keener by far, than his

interest in the day's most urgent political debate.”).

28

controlling shareholders.® This Court has continued

to rely on the nineteenth century maxim that a

corporation is an “artificial being,”®? and has drawn

a distinction between corporations and _ their

shareholders,’ even when the corporation has a

single shareholder.”}

Saad ca *

Justice Rehnquist’s dissent in Bellotti observed

that shortly after this Court decided that a

corporation is a “person” entitled to protection under

the Equal Protection Clause of the Fourteenth

Amendment, the Court concluded “that the liberty

protected by that Amendment ‘is the liberty of

68 See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct.

641, 643 (2012) (Sotomayor, J., in chambers) (denying stay

application); cf. United States v. Lee, 455 U.S. 252, 261 (1982)

(stating in a ruling against a non-corporate Amish employer

who argued that paying Social Security taxes for his employees

interfered with his exercise of religion, “When followers of a

particular sect enter into commercial activity as a matter of

choice, the limits they accept on their own conduct as a matter

of conscience and faith are not to be superimposed on the

statutory schemes that are binding on others in that activity.

Granting an exemption from social security taxes to an

employer operates to impose the employer's religious faith on

the employees. The tax imposed on employers to support the

social security system must be uniformly applicable to all,

except as Congress explicitly provides otherwise.”).

6° CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69,

89 (1987).

70 E.g., Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,

477 (2006); Dole Food Co. v. Patrickson, 538 U.S. 468, 474

(2003).

71 E.g., Cedric Kushner Promotions, Ltd. v. King, 533 U.S.

158, 160, 163 (2001).

29

natural, not artificial persons.”’2 The parsing of the

Fourteenth Amendment in which the Court engaged

during the late nineteenth and early twentieth

centuries — in cases such as Santa Clara, Paul v.

Virginia, Pembina Consolidated Silver Mining, and

Northwestern National Life Insurance Co. — still has

much to recommend it today. At its heart was the

idea that corporations do not have the same claims

to constitutional protections as natural persons.

72 Bellotti, 435 U.S. at 822 (Rehnquist, J., dissenting)

(quoting Nw. Nat. Life Ins. Co. v. Riggs, 203 U.S. 243 (1906)).

30

CONCLUSION

Because amici have not examined the factual

issues regarding the specific corporations at issue,

they take no position on the proper disposition of the

instant cases. However, their research reveals that

corporations have always been treated as artificial

entities under U.S. law, and that it would be

inconsistent with historical practice to extend the

same liberty interests to for-profit business

corporations as natural persons enjoy.

Respectfully submitted.

JONATHAN MASSEY

MASSEY & GAIL LLP

1325 G St., N.W., Suite 500

Washington, DC 20005

(202) 652-4511

jmassey@masseygail.com

Dated: January 28, 2014

31