Mike DeWine’s contribution to corporate personhood: Steven Conn (Opinion)

October 12, 2018

Mike DeWine’s contribution to corporate personhood: Steven Conn (Opinion)

YELLOW SPRINGS, Ohio -- Quick show of hands: How many of you really think that corporations are people and deserve the same legal protections as you do? Hands up – anyone? Well, if your hand isn’t in the air, think long and hard about your choice for Ohio’s governor in November.

Corporate “personhood” is one of the most bizarre legal fictions the U.S. Supreme Court has ever created. It dates back to the late 19th century and specifically to the 1886 decision Santa Clara County v. Southern Pacific Railroad Co. Lawyers arguing for the railroad asserted that the 14th Amendment, designed to ensure civil rights for newly freed African-Americans, applied to corporations, too.

The court agreed, though without any legal precedent or even legal reasoning. In his headnote to the decision, Chief Justice Morrison Waite said, “The Court does not wish to hear argument on the question whether the [14th Amendment] . . . applies to these corporations. We are all of opinion that it does.” And that was that.

In 1949, the Supreme Court ruled in favor of the Wheeling Steel Corp. in their fight against taxes imposed on their operations in Ohio by the state. The Court majority cited the corporate personhood and the 14th Amendment in its decision. Justices Hugo Black and William Douglas expressed disbelief when they wrote in their dissent that in the Santa Clara case “there was no history, logic, or reason given to support that view. ... [T]he purpose of the [14th] Amendment was to protect human rights --primarily the rights of a race which had just won its freedom.”

Never mind history, logic or reason, the Supreme Court has continued not only to uphold corporate personhood but to expand it. In 1978′s Belotti decision, corporations got First Amendment rights to spend unlimited funds on ballot initiatives. This time it was conservative Justice William Rehnquist who was gobsmacked by the flimsy reasoning of the court’s majority. In his dissent, he worried that: “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” 

Those “special dangers” became the law of the land in 2010 with the court’s Citizens United ruling. Chief Justice John Roberts cited that Belotti case and used it to expand the corporation’s right to free speech even further. He wrote that free speech is “indispensable to decisionmaking in a democracy,” which is certainly true. But then he went on to add “and this is no less true because the speech comes from a corporation.” Speech, by any definition other than the Supreme Court’s, is something individual human beings do. How a corporate body is supposed to “speak,” Roberts did not explain.

Which leads us, just a few years later, to Mike DeWine.

In 2014, the Supreme Court in the Hobby Lobby case decided that corporations have religious rights, too, and they can invoke them to discriminate or to exempt themselves from laws that otherwise apply to everyone else. Hobby Lobby Stores Inc., run by conservative Christians, did not want its employees to have access to birth control through health insurance plans, as required by the Affordable Care Act. By a 5-4 vote, the court sided with the corporation, citing “its” religious freedom.

Mike DeWine, in his official capacity as Ohio Attorney General, served as a high-profile cheerleader for the Hobby Lobby corporation. The ruling dealt a small blow to the ACA, which DeWine has implacably opposed, and it scored a victory for conservatives like DeWine who don’t think women ought to have access to family planning. But its most pernicious legacy may prove to be the expansion of corporate personhood at the expense of actual people like you and me. 

Steven Conn is the W. E. Smith Professor of History at Miami University in Oxford, Ohio.


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