Blowhard, Esq. writes:
- Megan McArdle counters the lefty Hobby Lobby hysteria. Julian Sanchez reads the decision and discovers a paragraph that takes the wind out of the “war on women” narrative. Reason magazine notes the only three politicians on record in support of OTC birth control are conservative men.
- Is Los Angeles on the cusp of becoming a walkable city? Walkabout or not, we’re still great at destroying our architectural heritage.
- The sad, old motels of Barstow, California.
- Tuesday was author James M. Cain’s birthday. The Postman Always Rings Twice was a major influence on Camus’s The Stranger, his novel Double Indemnity provided the basis for one of the greatest film noirs, and Mildred Pierce is one of the great unheralded works of popular women’s fiction. In other words, the dude was a major figure. Here’s Paleo Retiree on Mildred Pierce.
- The newest culinary craze sweeping China? French rabbit heads.
- Good Lord, the things some people put in their bodies. PR wasn’t too happy when 7-11 moved into his neighborhood and who can blame him?
- Kids aren’t learning cursive handwriting anymore. No big loss, if you ask me.
- FIRE, the Foundation for Individual Rights in Education, intends to sue college speech codes out of existence. Finally, litigation being used for a noble purpose. One of the initial suits was brought against Citrus College, a community college I attended for two years.
- Are Benjamin Moore paints racist?
- Tarnished Sophia, who sometimes comments around here, shares her thoughts on BDSM.
- For no reason, here’s a hot redhead in a bookstore.
Blowhard, Esq.
Callowman
Sherbrooke
Eddie Pensier
Enzo Nakamura
Epaminondas
Fabrizio del Wrongo
Fenster
Brundle Guy
Glynn Marshes
Paleo Retiree
Atypical Neurotic
Question Lady
Sax von Stroheim
Sir Barken Hyena
The Mistaken
Uncouth Reflections 
Thanks for the linkage, dearhearts!
You know, Eddie, the BroadBlogs woman never responded with how bdsm is comparable to/the same as women (because only women are Subs, amiright?) seeking out abuse and humiliation…I wonder if it’s because she has nothing to back her claims up, or because they are solely opinion.
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Ain’t it a bitch when human nature (as it actually exists in real life) doesn’t jive with your academic theories?
I thought that “Broad” was a sexist term anyway? 😉
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I thought it was, too. I guess it’s only sexist if a man is saying it… 😛
*sigh* She has written a decent number of posts on this subject, and I can agree with her that some commercials/adverts do sexualize “female as subservient” way too often, but I just can’t hop on the “women are too stupid to not internalize commercials” bandwagon. I like bdsm because I have a partner who respects my body and desires just as much as I respect his, and we are adults who enjoy role-playing. The fact that someone else is “icked” by our very consensual sex is really not my problem.
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McCardle and Sanchez are a good one-two punch. Sanchez reminds that a less onerous alternative exists and McCardle reminds that the controversy is mostly mud wrestling over deference.
Let the deference mud wrestling continue. As she concludes, “politics may not be rational, but it still has its own remorseless logic” by which she is implying, I believe, that deference wars we will always have with us and that in fact they serve a purpose as proxy conflicts by which cultures sort things out beyond the law.
McCardle is right that the dust-up has been long on feminist rhetoric (the mud wrestling part) but short on legal focus. Accordingly, it has been easy for the Right to take aim at some of the more outlandish claims about the controversy, as Sean Davis does here:
http://thefederalist.com/2014/06/30/6-stupid-arguments-about-hobby-lobby-from-dumb-liberals/
OK, OK but what about the law? That counts too! And this is where I show my own reservations about the decision: I am instinctively against the notion that corporations are people. Note “instinctively”–I admit it is from the gut and that a strictly legal approach may go the other way (as I will reluctantly describe below). And indeed, the law generally seems to be heading in the direction of corporations as persons.
Now, the free analysis, snapshot style!
A Forbes contributor makes a good argument that the issue kind of decides itself as a routine matter of statutory (not constitutional) interpretation.
http://www.forbes.com/sites/daviddavenport/2014/06/30/congress-actually-decided-the-hobby-lobby-case-decades-ago/
The Religious Freedom Restoration Act is quite clear on the point that restrictions on a person’s religious views are not to be tolerated if less onerous paths exist, as they do in this case and as Sanchez points out.
But for this argument to hold, one has to also conclude that closely held corporations are persons. The Forbes guy argues that this conclusion is a slam dunk because of the so-called Dictionary Act, which exists to give meaning to possibly ambiguous terms in statues. This act takes the expansive view of person to include corporations. He writes:
“Indeed, the Dictionary Act, which courts follow in the absence of some special definition in a particular law, defines “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies as well as individuals.” So again, disagree if you want, but your objection is really to those who passed the Religious Freedom Restoration Act without some special definition of “person” or with the Dictionary Act and its broad definition. ”
Sounds compelling, no? Are we done yet?
Not quite.
This Yale Law Journal article does a much more thorough job than Forbes in breaking down the history of the case as regards the Dictionary Act.
http://www.yalelawjournal.org/forum/hobby-lobby-and-the-dictionary-act
It seems to me that it is a much more complex–and ambiguous–story than Forbes lets on. At issue is how to *use* the Dictionary Act–and, alas, acts do not always come with users’ manuals.
But the Supreme Court had to weigh in on this. The majority more or less endorsed the notion that in the absence of context suggesting “person” has a different meaning than the Dictionary Act suggests, you go with the Act. Here, from the majority:
“Nothing in the RFRA suggests a congressional intent to depart from the Dictionary Act interpretation of a ‘person'”.
Opponents of Hobby Lobby argued that the context is kind of a given, since the issue at hand is not about business practice, which is what corporations are chartered to do, but about religion. And corporations do not exercise religion.
The majority dispensed with that logic too, arguing that “there is no persuasive explanation for this conclusion.” In other words, it may sound good to argue that corporations do not exercise religion and are thus not persons, but that idea has no legal weight.
So checkmate on me. I find the idea of a corporation as a person–especially as regards religion–a detestable one. But I suspect this case was rightly decided.
ON THE OTHER HAND. The court’s decision grappled with statutory not constitutional interpretation. The Dictionary Act can be amended. As can the RFRA, and as the WSJ points out, that is where attention is turning.
http://online.wsj.com/articles/supreme-courts-hobby-lobby-ruling-ignites-debate-over-religious-freedom-law-1404155510
Moves to restrict corporations-as-persons will have my support, for what that is worth.
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Oh, but I forgot to comment on the picture, which I liked!
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Can anyone explain to me — in a few easy-readin’ sentences of vivid, plain English (my brain can’t process anything else) — WHY the U.S. thinks that corporations are people? This one puzzles me no end. Is there semi-respectable legal reasoning behind it? Is it motivated entirely by lobbying/corporate pressure on the legal system? What are thought to be the advantages?
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Here’s a good summary, and a defense of corporate personhood *of a certain type and with certain limits*.
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/03/corporations_are_people_and_that_s_why_hobby_lobby_should_lose_at_the_supreme.html
Corporate personhood is a longstanding legal fiction (like copyright, which I do not take to be a matter of natural law) which we put up with because we are better off with it than without it. Simple as that. The state gives and the state receives as an adaptive, pragmatic thing.
Seems reasonable to conclude that any limits on that idea should relate to the utility afforded by the legal fiction . . . . But no!
In any event, I don’t doubt that there are benefits to corporate personhood of a certain type.
“This conception of corporate personhood has profound and beneficial economic consequences. It means that the obligations the law imposes on the corporation, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders. Limited liability protects the owners’ personal assets, which ordinarily can’t be taken to pay the debts of the corporation. This creates incentives for investment, promotes entrepreneurial activity, and encourages corporate managers to take the risks necessary for growth and innovation. That’s why the Supreme Court, in business cases, has held that “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”
Being from Slate, it is no surprise that it argues that Hobby Lobby should lose, and for the same reasons that I feel in my gut. The writer, a constitutional law prof, argues that the Supreme Court’s own language cleaving the corporation from its owners are all that is needed to decide against Hobby Lobby. Sounds like a decent argument to me, though it does still have to contend with the Dictionary Act and that whole fandango. And in the end, it matters little since the Court has for now decided. If people think corporate personhood should have limits tied to their useful purpose, and not extend to the owner’s private expressive needs, laws need to change.
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Thanks for the link, very interesting, it’s a good article, although it’d take me hours to puzzle my way thru all its reasoning and implications. And am I just being a dummy, or is there a strange hiccup in the long-term legal reasoning? Maybe it makes sense (and has, sigh, economic benefits) to create a special kind of entity for limited-liability and other reasons … but why does that special entity HAVE to be considered, legally speaking, a person? Given that corporations have been considered to be “artifical persons” right from the outset, and that the author of the article is arguing that in any case we consider them to be very special kinds of persons, why are we hung up on the notion of corporation-as-person at all? Why don’t we just create another kind of legal entity entirely? Wouldn’t that simplify (or at least clarify) some of these issues?
And how do other countries deal with the corporation/limited-liability problem? Anyone know?
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@PR
The simplest answer, devoid of legal language and political matters, is that America is one if the most (if not the absolute most) materialistic nations. Americans want more, better, faster, anything “superior” and we want it *now*…doesn’t matter if 20,000 Joe and Jane Doe’s lost their jobs and pensions because of the merger, or that a family had to sell the farmlands that they’ve owned for 5 generations so we could build another frickin mall on it. Yay, unrestrained consumerism!
Unfortunately, we are also pretty damn stupid, as a significant number of our *public* schools are required to teach Evolution and (Christian) Creationism side by side, abstinence-only “sex education”, Christian bullies fight for their “religious right” to say their gay/lesbian classmates are going to Hell, teachers get away with handing out bibles to students while in class sessions, and Pagan parents are told in court to raise their child in a “more moral” belief system.
So the fact that others who are part of my country think that corporations are individual people really doesn’t shock me in the slightest. Trust me, as someone who’s lived here for 30 years, this is only the tip of the iceberg. The majority of Americans do not give a rats ass about how their actions or words affect others…if it is making them more money, hey…it’s all good. If you have a problem with it, you must be onea them atheist homosexual bleeding heart anti gun ultra liberals!
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I get that, although we may differ a bit on the motivations. (You seem to see it as an expression of the national character — I suspect that it has more to do with serving the convenience of our elites. Lots of everyday people seem as perplexed as I am by the notion that a corporation is to be thought of as having the legal standing of a person.) But what I’m really interested in is the reasoning, legal/constitutional/etc. It seems like such a weird conclusion for anyone or any institution to have reached that I’m curious about the logic and the legal bases that they used to get there. Is there *anything* defensible about it or not?
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Pictures like that are their own reason.
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The idea of corporate personhood is necessary for ideas like popular sovereignty to work. The people’s personhood, i.e. their real capacity and right, is the foundation of modern politics. The individualist is the aristocrat who favors government of personal allegiance to rulers. Corporate personality is also the basic assumption of man when we hold groups, e.g. The Japanese, liable for the actions of individuals, e.g., the pilots who bombed Pearl.
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Aha: a few links I’ll be puzzling over for some hours:
http://en.wikipedia.org/wiki/Corporate_personhood
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/supreme_court_2014_hobby_lobby_is_a_bore.html
http://en.wikipedia.org/wiki/Legal_fiction#Corporate_personhood
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I really like your idea of dropping the concept of person from the law. It does seem to create unneccessary mischief for no other reason that it uses a word that has metaphorical meanings. We know a corporation is not a natural person but when we say it is a person at all we inevitably get caught up in asking in what ways. That is working from the concept (person) out, when, as you point out, it need not be that way.
If we wish to achieve certain economic purposes fixing the legal focus on corporations rather than individuals in connection with lawsuits and other business matters, then why not just do that in law, one-by-one by category as required. As it is, the Majority’s opinion does not seem compelled to reflect on what utilitarian benefits are gained by corporate speech rights and religous exemptions. Maybe the Court is compelled to this lack of utilitarian logic–the law is after all a ass from time to time. But Congress is where the buck stops, and it seems to me that if they wanted to rethink the idea entirely. It could dump the term person altogether since its heavy metaphorical aromas lead inevitably to bunding too many ideas together, and replace it with unbundled a la carte provisions.
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Yikes I wonder what Sanchez makes of his argument this morning. Recall he brought to the front of the argument the Majority’s contention that less burdensome alternatives exist: namely the Government’s plan for a switcheroo whereby it would relieve insurers of the obligation to pay by assuming the cost directly. Or so Alito held.
But what to make of this morning’s news? Wheaton College, a religious college in Illinois, objected to the government’s plan on the grounds that in signing the form allowing the switch it would still be in effect allowing contraception. What did the Court do? A similar Majority that decided Hobby Lobby said fine, you are not compelled to sign the form. So how can it be said that an alternative exists if the institution only has to say no to make the alternative go away?
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