Commerce clause

by Jeremy Leaming

The effort to amend the Constitution to counter the ever-growing corporate influence on lawmakers and elections is a noble one, but there is a more useful and far-reaching way to correct the matter – make corporations more democratic. That’s law Professor Kent Greenfield’s take in a new article for Democracy.

It’s an extensive piece that helps explain why the Supreme Court’s 2010 opinion in Citizens United v. FEC is quickly producing a corrosive effect on elections from coast to coast, but also why seeking a constitutional amendment is a wobbly strategy.

Not long after the high court in Citizens United invalidated some major campaign finance regulation and found that corporations have nearly unfettered rights to funnel their expenditures into elections, an effort was launched to amend the Constitution.

John Bonifaz and Jeffrey Clements co-founded Free Speech For People a group devoted to a constitution amendment overturning Citizens United.

A recent debate with Bonifaz helped spur Greenfield to write the Democracy piece. Greenfield, who teaches business and constitutional law at Boston College, says that too many progressives have decided that constitutional law solution is needed to trump the Citizens United. Instead, Greenfield argues that it is corporations and how we understand them that need to change.

“While the constitutional effort is defensive and palliative, a campaign to redesign the corporation itself would be affirmative and transformative,” Greenfield writes. “To cure Citizens United, we don’t have to amend the Constitution – we need to rethink corporations.”

The nation’s laws governing corporations are weak and shareholders, despite widespread belief, do not have much to do with running corporations. (He notes for instance that shareholders are “not ‘owners’ in any meaningful way. If you own a share of General Motors, you will still be tossed out of its headquarters as a trespasser if you try to enter without an appointment.”) In Citizens United the Supreme Court majority, Greenfield notes, saw corporations as “associations of citizens,” but in reality America’s corporations are largely representative of the wealthy few, the 1 percent.

by Jeremy Leaming

While liberals continue to ponderously ponder how to refute the right’s method of constitutional interpretation called originalism, the right continues to advance a simplistic and destructive story that the Constitution is all about severely limiting the federal government’s reach. 

For far too long liberals have obsessed over methods of constitutional interpretation, leaving rightists to advance the constitutional storyline, which says the nation’s governing document only promotes individualism, limited government, and of course Christianity.

As law professor and historian William E. Forbath recently noted in an op-ed for The New York Times liberals have far too often shrugged their shoulders at this narrative, claiming that “rights and wrongs of economic life” are not addressed by the Constitution, but instead through politics.

“That’s a major failing,” Forbath (pictured) writes, “because there is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than James Madison was among its prominent expounders – in his draft of the Virginia Constitution, he included rights to free education and public land.”

In a more expansive piece for the book, The Constitution in 2020, Forbath explores the “historical heft” of a century-long effort “to make good on the constitutional justice of livelihoods and social and economic rights ….”

For example, Abraham Lincoln and other founders of the Republican Party argued that equal rights also included “a fair distribution of initial endowments,” and FDR in his State of the Union proposing a Second Bill of Rights, said the government “owes to everyone an avenue to possess himself of a portion of [the nation’s wealth] sufficient for his needs, through his own work.”

Moreover, Forbath noted, African Americans during the Civil Rights Movement strived to “craft a broader social rights agenda,” including the right to a decent income. During the Civil Rights movement, the federal courts took note of the efforts in “undoing the exclusion of black women from welfare rolls,” he continued.

The Supreme Court in its 1970 Goldberg v. Kelly opinion, said, “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”