Jeffrey Toobin’s recent exposé in the New Yorker takes aim at the Roberts Supreme Court for its controversial decision in Citizens United v. Federal Election Commission, which struck down the key provisions of the McCain-Feingold Act prohibiting “corporations from running television commercials for or against Presidential candidates for thirty days before primaries.” To Toobin, Citizens United was the Supreme Court’s illicit gift to corporations; it recalls the worst excesses of the “Gilded Age,” a time when, Toobin claims (falsely), the Supreme Court “barred most attempts by the government to ameliorate the harsh effects of market forces.”
To Toobin, one unfortunate byproduct of the nineteenth-century Court’s worldview was its 1886 decision in Santa Clara County v. Southern Pacific Railroad, which held that corporations—railroads, no less—were “persons.” They are thus entitled to the protections of the Due Process and Equal Protection clauses of the Fourteenth Amendment. A second low point of that Gilded Age, Toobin insists, was the Supreme Court’s 1905 decision in Lochner v. New York, which, by his account, held “that most attempts to regulate the private marketplace, or to protect workers, were unconstitutional.”
It is necessary to expose his multiple errors of constitutional history and interpretation if only to explain why Citizen’s United did not turn back the clock on sensible regulations in a mindless return to some inglorious era. First, what possible reason is there to deny that corporations are persons protected by the Due Process and Equal Protection clauses of the Constitution? Suppose a state decided to seize corporate land for use as a public facility. Why not make it pay for the land that it takes? If individual shareholders held title to that land in their own names, full compensation would be required to effectuate the government taking, if only to make sure that the burdens of running public facilities were put squarely on the public that benefits from their operation.
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