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My Cato Institute colleague Walter Olson, author of “Schools for Misrule: Legal Academia and an Overlawyered America”, explains that “legal academia rewards cleverness in coming up with strained arguments for ideologically favored (or just expedient) positions; marginalizes as eccentric thinkers who favor original understanding as a guide” to the Constitution and often reduces law to “politics by other means.”

Unfortunately, that training has served Obama well.

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Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations. … Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

The actual Citizens United case, as distinct from the later caricature, was over whether the government had a constitutional right to punish private actors for distributing a video critical of a prominent politician (Hillary Clinton) before an election, which helps explain why the ACLU and many other civil libertarians took the pro-free-speech side. More: Caleb Brown at Cato.

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You can listen to my audio interview on Schools for Misrule at this link.

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More: Hans Bader points out, regarding the Obama DoJ’s “let them rely on free association” argument, that “free-association defenses, unlike religious-freedom defenses, are generally losers, as the Supreme Court’s Hishon, Jaycees, and New York State Club Association decisions illustrate.” And: “The extreme position taken by the Obama Justice Department in the Hosanna-Tabor case is a reflection of ideologically-based hiring.”

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Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. … This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Meanwhile, Virginia blogger/attorney Doug Mataconis [via the much missed Larry Ribstein] analyzes a constitutional amendment advanced by a number of Democratic representatives and Sen. Bernie Sanders (I-Vt.) which would, among other provisions, propose to abolish the constitutional rights of incorporated businesses, with the possible exception of rights held by “the press.” The measure would also impose a constitutional prohibition on (not just authorize official regulation of) such businesses’ engagement in “expenditures,” such as buying newspaper ads expressing their views, during initiative and referendum campaigns as well as elections for office.

Along with abolishing incorporated businesses’ rights, the Sanders proposal contains a further provision of high importance (flagged by Eugene Volokh) that would abolish the constitutional rights of any and all non-profits and similar private entities that are “established … to promote business interests,” and would impose on them the same constitutionally mandated silence during initiatives, referenda and the like. Note the results of this language, which we must presume are intentional: in, say, a fight over a ballot measure that would increase some business tax, the citizens’ committee organized to agitate against the tax would be forbidden to expend money upon a determination that it had been “established … to promote business interests.” Such a private group would also be deemed to have no constitutional rights of any other sort — rights against, say, having its meetings stormed and broken up by police. Meanwhile, the citizens’ committee organized to agitate for the tax would retain not only its rights to speak and to spend money on behalf of its views but also all its other constitutional rights. Rarely do politicians, in this country at least, make it so clear in advance that their intent is to silence their opponents.

Who are the lawmakers who would propose such a measure? The House version was introduced by Rep. Theodore Deutch [FL] and its co-sponsors are Reps. Steve Cohen [TN], John Conyers, Jr. [MI], Peter DeFazio [OR], Keith Ellison [MN], Sam Farr [CA], Barney Frank [MA], Marcia Fudge [OH], Raul Grijalva [AZ], Alcee Hastings [FL], Sheila Jackson Lee [TX], “Hank” Johnson, Jr. [GA], Rick Larsen [WA], John Larson [CT], Barbara Lee [CA], Carolyn Maloney [NY], Jim McDermott [WA], Frank Pallone, Jr. [NJ], Chellie Pingree [ME], Charles Rangel [NY], Betty Sutton [OH], Chris Van Hollen [MD], and Peter Welch [VT].

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