In My Opinion’s Wake
Some may ask, I think legitimately, how I can conclude that a corporation lacks religious rights under the First Amendment but affirm that it has free speech rights under the First Amendment, believing as I do that Citizens United v. FEC (and its successor, McCutcheon v. FEC) were correctly decided.
For me, it’s simple. Corporations have no rights at all beyond those granted them by the positive law. Rights define the boundary of the legitimate and legal exercise of governmental power. Constitutional cases test whether the government can impose its will on the individual; they test the autonomy of the individual actor against the will of the government.
We have four alternative situations. In one, the individual exercises autonomy and the government has not acted to restrict autonomy. The individual prevails by default. Some call this “freedom.”
In another situation, the autonomous individual and the government both act, and they agree. Is the individual “free?” Hard to say — if an individual chooses to drive the speed limit regardless of what the law requires, he isn’t going to get a speeding ticket.
In the third possibility, the law and the autonomous individual clash. Now we have something interesting to look at. Either the individual can do as she chooses, or she must obey the command of the government lest she be punished. If the government prevails, it has the power to legislate in this fashion. If the individual prevails, she was acting “within her rights” which necessarily means the government lacks power to control her.
If an actor is silent, we ever get to test its autonomy against the government’s. We’re in a null zone of the law, and discussion of whose autonomy prevails is practically meaningless since individual autonomy is not being exercised against the government.
“Congress shall make no law” restricting the freedom of speech. That phrase is a limitation on the power of Congress, not an articulation of an affirmative right held by anyone. So it doesn’t matter who the speaker is. The speech cannot be restricted, because the First Amendment deprives Congress (and this the rest of the government, which acts, with only rare exceptions, under legislation passed by Congress) of the power to restrict it.
“Congress shall make no law… prohibiting the free exercise [of religion.]” Again, it is Congress’ power that is limited rather than an individual right articulated. But for this to be meaningful, religion must be exercised in the first place. We are in the null set; there is no actor with a religious belief to exercise religion in the first place. So while Congress’ law might restrict free exercise in some theoretical way, that’s possibly interesting on a theoretical level, but it’s not a live case to resolve.
Since the government’s power to control what others do is limited, it might appear that corporations have the rights of natural people. But what’s really going on in situations like Citizens Unitedis that the government has exceeded the legal and legitimate extent of its power as against anyone at all.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.