Amicus With Dahlia Lithwick | March 3, 2018

Episode: "When Did Corporations Become People?"
Main Theme:
This episode explores the historical and legal evolution of corporate personhood and the civil rights of corporations in America. Host Dahlia Lithwick interviews Adam Winkler, author of We the Corporations, to unpack misconceptions about corporate rights. The show also delves into the Janus v. AFSCME Supreme Court case and its implications for public sector unions.

Key Segments & Timestamps

1. The Janus Case and the Power of Unions

• [00:41 – 26:23]

  • Guest: David Franklin, Solicitor General of Illinois

  • Summary: The episode opens with discussion and analysis of the Supreme Court oral arguments in Janus v. AFSCME, a case questioning the constitutionality of mandatory union "fair share" fees by public employees who aren’t union members.

  • Key Points:

    • The court is reconsidering the 1977 decision in Abood v. Detroit Board of Education, which permitted the collection of fees for collective bargaining but not for political activity.
    • The outcome could drastically alter the landscape of public sector unions and labor rights.
    • Much attention is focused on Justice Gorsuch as the then-newest member of the Court.

  • Notable Quotes:

    • Justice Kennedy:

      "If you do not prevail in this case, the unions will have less political influence. Yes or no?" — [06:51]

    • David Franklin:

      "What we're saying as the state is that... the union that has to spend money to represent employees, for example, in grievances, is going to be fairly funded by all of the employees that it has a legal duty to represent." — [12:34]

    • Justice Kagan:

      "I don't think that we have ever overruled a case where Reliance interests are remotely as strong as they are here... what would be the justification for doing something like that?" — [17:18]

    • Justice Ginsburg/Justice Kagan (paraphrased in context):
      Discussing the free rider problem: employees benefiting from union representation without paying fees, leading to diminished union power — [21:58]

2. The Rise of Corporate Civil Rights: Interview with Adam Winkler

• [28:18 – 56:57]

• Guest: Adam Winkler, UCLA Professor and author of We the Corporations

• Summary: Dahlia Lithwick and Adam Winkler examine the premise of corporate personhood, debunk myths about its origins, and clarify the real history, strategy, and implications of corporations as rights-bearing entities.

  • Key Points:

    • Corporate Rights Did Not Begin with Citizens United:

      • Corporations have been fighting for constitutional rights since the nation’s founding, long before Citizens United or Hobby Lobby.
      • The "corporate personhood" debate oversimplifies the reality; legal rights for corporations have a complex doctrinal history.

    • America’s Colonial Roots in Corporations:

      • Winkler: "America was built, really, the earliest colonies built by corporations... The colonial enterprise was indeed that: an enterprise." — [30:33]
      • Corporate charters served as templates for the written Constitution.

    • Two Competing Legal Theories:

      • Corporations as legal individuals (personhood) vs. corporations as associations of real people (piercing the corporate veil).
      • Paradoxically, limiting corporations to being "persons" has sometimes restricted—not expanded—their rights.

    • The 14th Amendment and Corporate Rights:

      • The Amendment, intended to protect freed slaves, was quickly appropriated to defend corporate interests far more frequently.
      • Winkler: "The Supreme Court decided just 28 cases dealing with the rights of actual African American people and 312 cases that involved the rights of corporations." — [41:29]

    • Legal Strategy and Power:

      • Corporations’ success in court is not just a function of wealth in politics but of their ability to hire top legal talent and use test cases to expand rights.
      • Winkler: "Corporations have traditionally been able to afford the best, most experienced and creative lawyers in the country and have used those resources to really expand their rights." — [46:10]

    • Not All Corporate Victories Harm Progressive Causes:

      • Corporate litigation has sometimes advanced civil liberties (e.g., freedom of the press).
      • Expansion of certain corporate rights has had broadly positive effects in constitutional law.

    • How and When Did It "Go Off the Rails"?

      • The broad expansion of rights dates back to the earliest Supreme Court rulings in the 19th century, not just recent decades.
      • The Lewis Powell Memo (early 1970s) catalyzed new assertiveness from business interests on the political and judicial fronts.

Notable Quotes & Moments

Corporate Personhood and Its Myths

• [34:23]
  • Winkler: "There’s actually two different corporate theories that are pressed. One is this idea that corporations are people. The other is in tension with that... When we fixate too much on the cardinal sin of corporate personhood, we’re missing the point."

14th Amendment Hijacking

• [41:29]
  • Dahlia Lithwick reading from Winkler’s research:

    "The Supreme Court decided just 28 cases dealing with the rights of actual African American people and 312 cases that involved the rights of corporations."

Lessons for the Present Day

• [54:20]
  • Dahlia Lithwick: "For people who are not all that sanguine about dark money and the outsize influence of corporations... the answer isn’t take away their rights. I think your answer is: do what they’re doing, but do it better."
  • Winkler [54:38]: "I think that’s right... You have wealthy interests that have really pushed the law in the direction that they wish the law to go. And often they’ve been able to succeed because consumers haven’t had the same kind of representation fighting for their rights."

Flow & Tone

• The episode maintains a lively and inquisitive tone typical of Dahlia Lithwick’s style, leaning into both historic storytelling and contemporary analysis.
• Winkler’s explanations are clear, accessible, and sometimes wry; he’s critical of corporate overreach but nuanced, recognizing the multifaceted role corporations play.
• The examination of Supreme Court cases is rigorous but demystified for a general audience.

Key Takeaways

• The rights of corporations are woven into American history far deeper and earlier than commonly believed, predating and shaping the Constitution itself.
• The oft-maligned concept of "corporate personhood" can both constrain and expand rights; the real legal play often happens in the details of constitutional interpretation.
• Corporations have been highly effective, much more so than most civil rights organizations, at using the law strategically to advance their interests.
• Amending the Constitution to deny all corporate rights would be problematic; nuanced reform (and better organization among reformers and consumers) is required.
• The current debate over corporate influence and personhood is incomplete unless grounded in a historical and doctrinal understanding of American law.

Suggested Listening Timestamps

• Janus oral argument breakdown & implications: [00:41 – 26:23]
• Adam Winkler’s interview on historical and legal roots of corporate rights: [28:18 – 52:00]
• Powell Memo and the modern era of corporate legal power: [50:27]
• Teasing the practical upshot for reformers and activists: [54:20 – 56:40]

This episode is essential listening for anyone interested in the intersection of law, history, and social change, offering a richer foundation for debates about corporate power, Citizens United, and America’s legal DNA.