David Franklin (2:51)

Full disclosure.

Dalia (2:52)

Okay. So David, we talked about Janice pretty thoroughly last time on the podcast. But I'm wondering if you would give us the the elevator pitch, if you would just explain essentially the constitutional question raised in this case.

David Franklin (3:07)

Sure. So this case is about whether the court should overrule a case that's now 41 years old called Abood v. Detroit Board of Education. And in that case, the court said two things about public sector unions. First, it said that it's unconstitutional for those unions or for the state to require that public employees financially support the union's political or ideological activities. But on the other hand, the court said that it is constitutional for public employees to be required to pay a so called fair share fee that goes to support not the union's political speech, but its workplace activities in collective bargaining, in grievance resolution and other forms of contract administration. So that's the compromise that's been on the books and in our view worked pretty well for more than 40 years. And the question is whether the second part of that should be overruled. The plaintiffs in this case are public employees who essentially argue that everything the union does is so irreducibly political that they shouldn't be required to pay a fee for anything that the union does to represent them.

Dalia (4:25)

And can you explain to us, you represent Illinois in this case. There are a lot of awful lot of people arguing this week. Can you tell us Illinois's posture, what you are doing in this case?

David Franklin (4:36)

So Illinois is in the case because we have a duty, our office has a duty to defend the constitutionality of Illinois state laws whenever there's a reasonable basis for doing so. And we think there's a more than reasonable basis here. And it's our law that authorizes public employers, including the state itself, to agree with public sector unions in the form of collective bargaining agreements that these kinds of fair share fees should be assessed.

Dalia (5:04)

Last. Just set the table. Question for you, David. Can you explain why it is, I think it's so important and folks maybe don't know. We actually pretty much just heard this case at the Supreme Court. We actually know what all the justices think because we watched oral argument in Friedrichs, which raised essentially the the same claims just two years ago. And then Justice Scalia died while the case was pending. And so we didn't get the resolution we expected. That's why all eyes are on who this week.

David Franklin (5:40)

Well, many eyes are on Justice Gorsuch, who's the only member of the court who wasn't present for that case, Friedrichs, a couple of years ago. And yeah, that case divided 4 to 4. And when a Supreme Court decision ends up 4 to 4. It just goes poof. The court says the opinion below is a firm by an equally divided court and it's as if it never happened. Of course it did happen.

Dalia (6:03)

And it's probably just worth flagging for people who are listening to the show hoping we play audio of Justice Gorsuch tipping his hand. He didn't talk.

David Franklin (6:12)

He did not. He seemed to listen very intently, but he did not talk.

Dalia (6:17)

Okay, so take us into argument, David. And the first clip I want to play for you is Justice Kennedy. I think this was more so even than usual. All eyes on Justice Kennedy this week. And this is Justice Kennedy challenging David Frederick, who represents the unions in this case. Here he is pressing Frederick on whether a union's political views really can be disaggregated somehow from the work that it does advocating for workers rights. So let's listen.

Justice Kennedy (6:51)

I'm asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence, yes or no?

Adam Winkler (7:02)

Yes, they will have less political influence.

Justice Kennedy (7:04)

Is that the end of this case?

Dalia (7:06)

That moment of the case was the one that everybody took to be the signal, defining moment that Kennedy is done with, with your argument. Did, do you read it that way or was something subtler going on there?

David Franklin (7:22)

It's funny, in the courtroom as I was sitting there and when you're arguing the case, you are literally right next to your adversary. So he was at my elbow and Kennedy was about six feet away from me when Kennedy said, isn't that the end of this case? You know, Dalia, sometimes lawyers use the word end to mean objective or goal. And I took Kennedy to mean, isn't the plaintiff, Mark Janis, seeking to preclude the union from using his money to advance the union's political goals? And at the end of the day that's really not relevant. Because if the system that's been set up by the Abood case is working the way it should, the union's not allowed to use non members contributions to support the union's political ends. But that's what I took Kennedy to understand, that this was really a case about non members fees being turned around and used by the union for political purposes. And our position, Illinois's position, is that the unions can't do that. And if somehow they are doing that, they shouldn't and the court should say so, but that the union's workplace activities, its representational activities ought to still be capable of being funded through this method.

Dalia (8:48)

So that's Interesting. I think what I'm hearing you say, David, is that it wasn't Kennedy saying this case is over. It was Kennedy saying that's Mark Jamis objective here, which we stipulate is his objective. Is that kind of what you're saying?

David Franklin (9:01)

Yeah, I probably am in a minority of one in terms of how I parsed that sentence. But it's almost as if Kennedy was talking about how the case began rather than how it ends. And I do think there's been some reporting on this. It's not in the record of the case, but it certainly seems as though the case began in an effort to undermine the political authority or clout of unions. But that's not what the case is actually about within the First Amendment context.

Dalia (9:35)

So let's turn to. I thought the other really interesting colloquy that you were involved in. Here's Justice Alito talking about what he sees as this core protected First Amendment right. And if it sounds familiar, it's because it seems to be the core protected First Amendment right in every case now. And that is, you know, to. To. To have your dignity and your conscience. So. So let's listen to Alito.

Adam Winkler (9:59)

When you compel somebody to speak, don't you infringe that person's dignity and conscience in a way that you do not? When you restrict what they.

David Franklin (10:07)

The person says you do, your honor, in some circumstances. But what we're talking about here is a compelled payment of a fee. So it's one step removed from compelled speech.

Dalia (10:19)

David, what. How are you trying to cabin this incredibly sprawling Alito view of the speech interests here?

David Franklin (10:26)

Well, you know, there are a number of ways in which the plaintiff's argument here kind of jumps, skips steps. You know, in the First Amendment? I mean, first of all, we've got the abood decision, so stare decisis is a very, very powerful consideration. Second of all, we've got speech, the union speech, that's occurring within a workplace setting. And so the court has held on many occasions, including in opinions written by Justice Kennedy, that the state, the government has a broad. Has broad discretion to control kinds of speech that goes on in the workplace. And third, relevant to this particular exchange, the court sometimes slips into treating compelled speech the same as a compelled subsidy. And so what I tried to point out to the court is that we're not talking about compelled speech here. Mr. Janis is not being compelled to say anything. He's not being coerced into believing anything. He's not being made into a mouthpiece for any favored government message, Far from it. He's simply being required to pay a service fee, like fees that the Court has upheld in many other contexts, whether it's student activity fees for university students or bar fees for integrated members of the bar, or fees for marketing of things like tree fruit, you know, apricots and plums. The Court has frequently said that the government has the authority to require people to pay money to support activities that, yes, may involve speech. So I was just trying to emphasize all of those different breakpoints in the court's First Amendment jurisprudence that the petitioner here, Mr. Janice, is asking them to leap over.

Dalia (12:16)

Let's pull on a little bit on something you said there, which is that Kennedy has actually written in the past about the ways in which employee speech can be regulated in this context. I mean, it's this, this is not foreign terrain for Justice Kennedy, right?

David Franklin (12:34)

No, he's a very strong adherent to the First Amendment, maybe the strongest on the Court. But at the same time, in cases that involve workplace speech, he's been very cognizant of the fact that you can't run a workplace, whether it's in the private sector or in the public sector, unless the boss has a pretty wide leeway to control the speech that goes on there. And although this case doesn't look on the surface like a classic workplace speech case, it is one, because what we're saying as the state is that in order to have the kind of workplace that we need to have, where employees can work together, can collaborate, can engage in joint projects, they need to know that they're all pulling on the same rope. And that means, in part, 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. So, you know, the job one in an argument like this is to persuade Kennedy or Roberts or any other member of the Court who was part of the wrong side, from our perspective in the last four, to view this case for what it is, which is a workplace speech case.

Dalia (14:06)

And yet, and yet I want to play you the last clip of audio that was directed at you again, Justice Kennedy, suggesting that he doesn't have a whole ton of solicitude for the kinds of things that unions are doing and for the kinds of speech that they are promoting. Let's have a listen. David.

David Franklin (14:28)

We have an interest at the end of the day in being able to work with a stable, responsible, independent counterparty that's well resourced enough that it can Be a partner with us in the process of not only contracting, it can.

Justice Kennedy (14:42)

Be a partner with you in advocating for a greater size workforce against privatization, against merit promotion, against for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes. That's the interest the state has.

Dalia (15:05)

No, David, that suggests to me a. That Kennedy's not a huge big fan of unions, but also that he just thinks that this is rank and grotesque political speech, right?

David Franklin (15:17)

Well, he may. What I tried to get out in my answer to Kennedy before I was interrupted, which obviously happens a lot up there, is that the state doesn't actually have an overriding interest as an employer in the positions that the union takes on political issues such as the overall size of government or the overall size of the budget. And so insofar as the union is out there speaking in public, running ads on television, supporting political candidates, or lobbying the government even for the ratification of a cba, those are all forms of speech that agency fees or fair share fees shouldn't be used to fund. However, we understand that when the union comes to the bargaining table and, you know, makes its proposals, those proposals will often relate to fiscal or public policy issues. But that's a workplace setting. That's a channel of communication, the collective bargaining table that's been set up by the state in order to establish the terms and conditions employment. And so when the union is doing its work there, representing all employees, including Mr. Janus, whether they're members of the union or not, those employees ought to be required to pay a reasonable service fee to support that activity.

Dalia (16:43)

Last question about argument, David. One of the things that was underpinning this case, but maybe only explicit at certain moments, is just the enormity of the disruption that would happen if the Supreme Court scuttles decades worth of case law. I think Elena Kagan trying to talk about just the unbelievable consequences of the court reversing itself on such a massive area of constitutional law. Let's listen to her for one minute.

Justice Elena Kagan (17:18)

I don't think that we have ever overruled a case where Reliance interests are remotely as strong as they are here. So just a few things to put on the table. 23 states, the district of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated. Those contracts would probably cover millions, maybe up to over 10 million workers. So property and contract rights, the statutes of many states and the livelihoods of millions of individuals affected all at once. When have we ever done something like that? What would be the justification for doing something like that.

Dalia (18:12)

David, my question for you about that colloquy is twofold. And you can ignore one of the two if you want. But A, I think that the court has to reckon with what they're about to topple and B, there's no factual record in this case.

David Franklin (18:30)

Right. There's no factual record in the case. The petitioner's lawyer, who did a nice job at the argument, really had no answer for the main part of Justice Kagan's question there, which was, can you think of another case in which the Reliance interests have been so great and yet we have overturned a decision that's been on the books for decades? As I sit here today, Dalia, I can't think of another case where the stakes are as high, where the court has turned around and overruled a case like this, which, as Justice Kagan said, has been the base for thousands of employment contracts around the country in 20 plus states. And you know, one of the themes that we were trying to get across at oral argument was that it's troubling enough to overrule a case under those circumstances, but it's particularly troubling to do so in a context where there are no facts in the record.

Dalia (19:35)

And can you explain, just for listeners who don't know why there's no record here, why A, how we got into that posture and B, why it matters?

David Franklin (19:47)

Sure. We're in that posture because we and the union defendants moved to dismiss the case on the strength of abood. So when you've got a precedent on the books like we do, that precedent essentially establishes that fair share fees are a reasonable condition of public employment as a matter of law. And when something is true as a matter of law, you don't have to argue about the facts, but what the plaintiff is trying to do here is overturn all of that and overrule Abood, but without giving the defendants us a chance to show the facts that matter to us, that, for example, the union spends much if not most of its time and much if not most of its agency fee proceeds doing mundane day to day workplace work or facts like if agency fees were eliminated, we're very concerned that unions will become more militant and more confrontational. Their resources will go down perhaps to the point where it's impossible for us to reach really work with them in the kind of sort of stable year over year way that we're accustomed to working with them. So there are a whole range of facts here that didn't get into the record because we Quite properly relied on the fact that abood was good law, and it is good law unless and until it's overruled. But for the court to change the rule, move the goalposts, and do all of that without a factual record would be highly irregular in our view.

Dalia (21:34)

David, the court's liberal wing put up a very dramatic fight, and we haven't heard much of the audio. But let's have a listen to Ruth Bader Ginsburg trying to probe what's called the free rider problem, or essentially why we have the bargain. We do because we don't want workers who don't pay in to reap the benefits. Let's have a listen.

Justice Elena Kagan (21:58)

If you are right, then it's not only the people who are opposed to the union, but also union supporters who may think, I'd rather keep the money in my own pocket. And then you'll have a union with diminished resources not able to investigate. Is what it should demand on the bargaining table not equal to the employer that it faces?

Dalia (22:30)

What was Justice Ginsburg trying to get at there? What are the interests beyond just the Mark Janis specific interests in this case?

David Franklin (22:38)

So I think Justice Ginsburg is giving voice there to a fundamental insight that a person might miss if they only read Mr. Janis briefs in this case. And that is that the free riding problem is just a basic collective action problem that exists whenever you've got this kind of collective representation. The problem for us as a state is not so much that people like Mr. Janus might stop paying fair share fees. The problem is that if he wins, there's no way to tell the sincere objector like Janice apart from the opportunistic free rider. And if employees could simply say, well, I like what the union is doing for me and I support what it's doing, but I don't want to pay for becomes like a PBS pledge drive. We all like listening to the three tenors, but not all of us open up our checkbooks and pay to support pbs. And if agency fees become like that, then free riding really becomes endemic.

Dalia (23:49)

And we have pretty good data, right, showing us that that's likely to happen. I mean, this is not purely conjecture.

David Franklin (23:57)

We have good data and we also have basic knowledge of human nature. When people can get something that they value for free instead of paying for it, many people will rationally choose to do that. And so one of the themes of our argument all along here has been that the first Amendment is not a something for nothing clause and that, you know, all employees who have a legal entitlement to representation from the union ought to have a legal duty to pay their fair share to support those representational activities.

Dalia (24:29)

I just would love for you to answer for me, David. The question that I think a lot of listeners were grappling with even last show, which is what is the scope of the harm here if you lose? Is this just a matter of, you know, so a couple of public sector unions are just going to have to live with a, you know, few fewer members paying agency shop fees? Or is this, in fact, you know, the other end of the continuum, not just the demise of financing and therefore the existence of public sector unions, but really the end of unions in America? So I guess I'm asking you the sort of sky is falling question. Is the sky falling hard or is it just wobbling a little? Or how significant would it be if you in fact lose in Janus?

David Franklin (25:21)

I think the answer is we don't know. But what we do know suggests that the stakes are very high and that the consequences could be very serious. I represent the state. I don't represent the union. So from our state point of view, as management, right, we want to have a union that is mature, seasoned, stable, knowledgeable, responsible, able to work with us, right? We're very concerned that in the absence of agency fees, the union might be able to scrape by. It might still exist, we don't know, but that it won't be the kind of counterparty that we can reliably work with over the long term to try to make the public workplace better and ultimately to try to deliver public services better for our citizens.

Dalia (26:11)

David Franklin is the Solicitor General of Illinois, and he was one of the people who argued Janus at the Supreme Court on Monday. Thank you, David, for joining us on Amicus.

David Franklin (26:21)

Thanks, Dalia.

Dalia (26:23)

If you saw John McWhorter on the late show with Stephen Colbert on Tuesday night, you know already that Colbert calls his show Lexicon Valley, quote, one of my favorite podcasts. Colbert says he loves the way McWhorter, a professor of linguistics at Columbia University, quote, tells the story of how we tell stories. Lexicon Valley is a podcast about language from pet peeves, syntax and etymology to neuro linguistics and the death of languages. Recent episodes have tackled efforts to revive endangered Native American languages, the history and evolution of no and not, and how languages around the world develop similar words for mom and dad. Lexicon Valley appears every other Tuesday. Subscribe today to ensure you get every single episode as soon as it appears. And now let's take a moment to talk about our membership program, Slate plus, if you're listening to this, you're probably hearing ads. But if you were to sign up for Slate plus, you would get to romp through this show without ads and think about how awesome that could be. And you could get access to bonus segments and extended versions of all of your favorite Slate shows. It costs only $35 for your first year, and if you're still wondering, you can sign up for free for two weeks just to check it out. One more thing. By signing up for Slate plus, you are supporting this show and all of our journalism here at Slate. Now more than ever, you know why that's important. So sign up for Slate Plus. Help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus joining us now is someone I'm thrilled to have on the show, Adam Winkler, professor of Constitutional Law at UCLA School of Law. He's just dropped his second book called we the Corporations How American Businesses Won Their Civil Rights. So, Adam, first of all, congratulations. Second of all, welcome to the podcast.

Adam Winkler (28:18)

Thanks so much for having me.

Dalia (28:20)

I thought we would start by talking about, and this is gonna sound Slate pitchy, but this is Slate, so I'm gonna say it. Am I right that the subtitle of your book could be Corporations? You're fighting them wrong like that we're doing it wrong. When we think as progressives about corporations that everything we imagine the truth to be, that it all started with Citizens United, that corporate personhood is the original sin, that that everything that we think about when we try to have a conversation about how corporations are represented in the legal system is in fact, incorrect. Am I overstating it in the slight, pitchy way?

Adam Winkler (29:01)

Well, yeah. I think there is so much that I found that is contrary to the assumptions about corporate rights. Citizens United and Hobby Lobby took the question of rights for corporations and shown a spotlight on it. And people think that this is a relatively new issue. But one of the things I show in we the Corporations is this is a really old issue and that corporations have been fighting to get equal rights since the earliest days. And the way we think about civil rights movements as mass mobilizations, people coming together and convincing we the People that they deserve rights. That might explain the civil rights movement and the women's rights movement movement, but the corporate rights movement has really operated on different terms. Corporations have won their rights in the Supreme Court without winning over hearts and minds.

Dalia (29:51)

So will you start by telling us, I think one of the narratives that you puncture pretty effectively in the book is the idea that the American Constitution and our legal system was born out of a pursuit of freedom and individual rights and religious liberties, and that corporate rights rights come along way later in the game. I think one of the things that you tease out is that actually, no, corporations kind of built this country. That initial constitutions leaned heavily on corporate language and corporate charters. That this is not an adversarial relationship, that in. In some ways, corporations built America.

Adam Winkler (30:33)

Well, that's right. And certainly the corporation is deep within the genes of American democracy. Citizens United has caused a lot of people to question, once again, whether corporations have too much political power and whether they will abuse democracy. And those are valid questions. But when we look back historically, we find a very complicated situation. We think about the Pilgrims as the sort of the American colonists who came here and represented that fight against tyranny and pursuit of religious liberty. Sort of nice models for the America that would come later. However, the first permanent English colony in the New World was in Jamestown. And it was a corporate affair. It was organized by the Virginia Company of London, one of England's earliest stock corporations. And the colonial enterprise was indeed that an enterprise. It was an effort to make money. And some of the initial reforms, like the first representative assembly in Jamestown, were not the product of progressive views of. Of equality and equal dignity, but rather an effort to try to incentivize new investors and new colonists to come over so that the Virginia Company could make more money.

Dalia (31:42)

And I think it's important to understand that while we want to believe that this was an enterprise entirely driven by pilgrims who were seeking religious freedom, in fact, I love in the book that you point out the first Thanksgiving, completely corporate event, you know, that. That this was very much a country built on private investors taking a big risk and making the decision that they were going to pour money. And they were wealthy and privileged, pouring money into the risk. That was America.

Adam Winkler (32:19)

Yeah, that's right. I mean, America was built, really, the earliest colonies built by corporations. Some of the original colonies, not just Jamestown, but other future colonies. Massachusetts Bay Company, where the Pilgrims ended up landing, Rhode Island's plantations, Connecticut's colony. These were all formed around corporate charters. And when a corporation was formed back in the day, you had to get a written charter from the government, and that charter would specify the powers and limits of what the corporation could do. Those corporate charters become an important model for the Constitution. While the founders were not thinking, oh, let's copy the corporate charters, they built from what they knew. And what they knew was governance in the Colonies where officials were limited by these written documents that set out specifically the offices that they could hold and what the limits of their power were, were. And those corporate charters in many ways morphed and transformed into the written constitution that we know now.

Dalia (33:25)

Talk a little bit about. I think for me this was one of the central insights that I got reading the book, Adam, was that the fixation on corporate personhood, that this is the cardinal sin. Right. We hate the idea that Hobby Lobby is treated as a person. We hate the idea that corporations have religious values and that they have speech interests because that makes progressives crazy. But I think one of the things that you point out, and it's doctrinal, so walk us through it slowly. But one of the things that you point out is that 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. It's this notion of piercing the corporate veil and that, that, that when we fixate too, too much on the cardinal sin of corporate personhood, we're missing the point.

Adam Winkler (34:23)

Yeah, that's right. I mean everyone really emphasizes how corporations are not people. And Mitt Romney of course made so many headlines by saying corporations are people, my friend. And there's even a big push to amend the Constitution with 19 states endorsing a constitutional amendment that would declare that corporations are not people and don't have rights under of the Constitution. But ever since the earliest corporate rights cases in the early 1800s, by the way, a half century before the first African American civil rights cases and the first cases on the rights of women to come before the Supreme Court, the justices of the Supreme Court had to deal with how to think about a corporation. And often it was argued that corporations should be thought of as a person, as a stand in for an actual individual with rights of its own. And that view was contrasted with actually a much more successful view of the corporation, one that influenced many more judicial decisions, which was the view that the corporation was a sort of a pass through and that the corporation would, the corporate entity itself was kind of irrelevant and that we should think about the people who form the corporation as really the ones who hold rights. And it's often when the Supreme Court has done that as pierce the court corporate veil and rested the rights of the corporation on the rights of the members, that it's led to ever more expansive rights for corporations. Because if you pierce the corporate veil and the people within the corporation are people, then of course the corporation's going to have nearly all the same rights as people.

Dalia (35:54)

And in fact, the corollary is true, which is that often the effort to push the idea of corporate personhood was used to cabin and restrict corporate rights. I mean, we think that's the runaway train. But your point is that quite the opposite is the case that sometimes you actually had folks trying to restrain corporate authority who were using this theory of corporate personhood to do it.

Adam Winkler (36:18)

What corporate personhood means in corporate law is that the corporation is its own legal independent entity. In the eyes of the law, it stands alone. It is not the same as its stockholders or its creditors or employees. They have different rights and different duties. And when the Supreme Court has treated the corporation as its own independent entity, separate and apart from its stockholders, it's often limited the rights of corporations. In the early 1900s, when Teddy Roosevelt tried to break up the trusts, tobacco companies argued that it would be a violation of the fifth Amendment right of self incrimination to require the company's officers to testify against the companies. But the Supreme Court said that was not self incrimination because the corporation and its employees were separate legal persons. Indeed, often when the court treats the corporation as a separate legal person, it often recognizes that corporate entities should have more limited and restricted rights than ordinary individuals.

Dalia (37:16)

You just said that states that are attempting to amend the Constitution in order to cabin corporate rights are trying to do it through the train of corporate personhood. And, and, and you're saying that's not the way to amend the Constitution. That is not the way to fix this problem.

Adam Winkler (37:34)

That's right. If you read Citizens United, it never says that corporations are people. Nothing turns on the idea that a corporation is a person in Citizens United. Instead, the court says the corporation is just an association of people and that those people have the right to gather together, assemble, and to make their voices heard. If we see it in those in that way, we could recognize that you might even have a constitutional amendment that denies corporate personhood, but actually doesn't actually limit corporate rights at all, because the corporations only have the rights through their members. Now, of course, I think the Supreme Court wouldn't read the Constitution in such a strange way, But I think there are other reasons to think critically about the 28th Amendment and saying that corporations have no rights under the Constitution. Because if corporations have no rights, then that means they don't have property rights. And if the government comes and takes their buildings to build a highway, the corporation can't get just compensation. It means if corporations have no rights, then Apple can be forced to open up an iPhone and the government doesn't even have to go to court to do it because Apple would not be entitled to due process of law. So we have to have some basic rights for corporations, at least for their property interests.

Dalia (38:47)

So actually that leads to, I think, what was a sticky wicket for a lot of people who found themselves on the Citizens United side of Citizens United, and that is media corporations. Right. We want the New York Times to be protected and to be given very, very robust protections for all the reasons you're saying. And a lot of progressive lions like Larry Tribe who were on the corporation side and Citizens United made the very point you just made, which is, hey.

Justice Kennedy (39:16)

Hey, hey, hey, hey.

Dalia (39:17)

You don't want to say that the New York Times has no, no authority to protect its interests. Right?

Adam Winkler (39:23)

That's right. I mean, we have to remember that there's a lot of different kinds of corporations and a broad constitutional amendment that says no corporations have any rights. It's just too blunderboss. You have media corporations that clearly must have rights for the freedom of press to be meaningful in a modern society. And in fact, I show in the book how an important turning point in the history of corporate rights was a case in the 1930s involving Louisiana Newspaper companies that challenged Louisiana's demagogue governor and Senator Huey Long. He tried to censor the press and that led the newspaper companies to take a case to the Supreme Court and they won a landmark victory that fundamentally changed freedom of the press law for everybody, but specifically recognized corporations to have a right of free speech and a right to participate, at least through newspaper corporations, in the political process.

Dalia (40:18)

The whole book, Adam, is about how corporations have been incredibly smart about using the law and the courts and the Constitution to vindicate their own civil rights. One of the things that is the most arresting fact in the book is the ways in which they use the 14th amendment, which was presumably passed to help freedmen enforce their own civil rights. And the statistic that you cite in the book, that is just gobsmacking. I think I'm just going to read it. That the scholarship has now shown when they tried to identify every single 14th Amendment case heard by the Supreme Court between 1868 and 1912. Here we go. The judge justice decided just 28 cases dealing with the rights of actual African American people and 312d cases that involved the rights of corporations. So out of all proportion to what the framers of the 14th Amendment anticipated. The 14th Amendment was weaponized to help corporations far more than African Americans, correct?

Adam Winkler (41:29)

Well, that's right. And indeed, one of the things I find in looking at the history of the corporate rights effort was that corporations have been especially adept at transforming progressive reforms in the law to serve the ends of capital. And the 14th Amendment is a perfect example that for the first 50 years, and indeed probably the first century of the 14th Amendment, it was rarely read to protect Africa, African Americans in any significant way. But it was often read to protect businesses and to strike down laws regulating businesses. Think about the Lochner era in the 1890s to 1930s, where the court became famous for using the 14th Amendment to strike down regulations on business. So we have seen this time and time again. That 14th Amendment story is also really unusual and interesting because it involved a very illustrious lawyer who. Who lied to the Supreme Court and a justice who knowingly misstated an earlier Supreme Court ruling so that he could expand the rights of corporations.

Dalia (42:34)

Well, that. Now you have to tell that story because it's quite amazing and I think people know the fringes of the story. But tell us a little bit about the divine Roscoe Conkling, please.

Adam Winkler (42:43)

Yes. Well, one of the most astonishing stories in the book, I think, is about a groundbreaking series of test cases brought by the Southern Pacific Railroad company to win 14th amendment rights. Two of the cases made it to the Supreme Court. They had literally 60 test cases that they filed. And the first case to get to the Supreme Court, Roscoe Conkling, an illustrious lawyer who had been nominated and confirmed to the Supreme Court himself, only to turn down the seat. The last person ever to turn down a seat on the Supreme Court after having been confirmed. Well, he went to the court and said that the 14th Amendment was written not just to protect the rights of slaves, but also to protect the rights of business. And Conkling was unusually situated to make such an audacious argument. He had been a young congressman that served on the drafting committee of the 14th amendment. But by the 1880s, when his case came before the Supreme Court, he was the last surviving member of the committee. And there's no one there to really refute his rather improbable tale. And he said that the Constitution, that the equal protection clause of the Constitution had been rewritten specifically to refer to persons so that it could incorporate both natural and artificial persons. And then the Supreme Court didn't rule on his case for some procedural issues. But another one of the Southern Pacific's test cases came to the Supreme Court just a few years later. The court in that case specifically refused to decide the constitutional question. Set it right there in the opinion but the reporter of decisions, a guy named J.C. bancroft Davis, wrote an inaccurate headnote and syllabus in the Southern Pacific case, publishing it with the official opinion saying that the Court had decided that corporations had 14th Amendment rights. Justice Stephen Field, a couple years later, who had complained that the Supreme Court had not decided this constitutional question, nonetheless cited the Southern Pacific case in this opinion a few years later and said that the Court had decided that corporations had 14th Amendment rights. In the wake of that, corporations became very successful in asserting 14th amendment rights.

Dalia (44:47)

So the takeaway here, Adam, is what? That money is the only thing that matters and that it doesn't really flow. That civil rights flow to the most worthy and deserving entities. That as long as there's big, big money willing to bring big, big, the big business is always going to win. Is that the depressing takeaway that we should all warm ourselves with at night?

Adam Winkler (45:14)

Well, I don't like to think of it in such depressing terms, but good indeed. One of the lessons I hope readers get from the book is to remember that corporate power is not just a function of political influence, that corporations are generally recognized to be very powerful in the political process, but we should also recognize how influential they are in the judicial process. We have this sort of mythology about the courts, that justice is blind and that everyone gets an equal time and equal say, and thus no one's really advantaged in the court systems. But the truth is, our court system depends on lawyers, especially really good lawyers, to push novel legal theories to persuade the justices. And corporations, much more so than civil rights organizations, 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 too.

Dalia (46:10)

But, but, but I think this actually leads to another important hashtag, you're doing it wrong theme from the book that I really loved, which is it's a mistake to say that every victory for corporations in the past two centuries necessarily redounded to the benefit of big money. Right? Because they pushed for innovative constitutional laws that in fact helped the very people you're talking about. It's not the case that every win for a corporation was a loss for progressive ends, correct?

Adam Winkler (46:40)

No, that's right. Corporations have, surprisingly, been innovators, too. I mentioned earlier that they're good at leveraging progressive reforms, but they've also been innovators that have pushed the Constitution in new directions. Corporations were innovators in civil rights litigation strategies long before the NAACP was doing it. Corporations were filing test cases and engaging in civil disobedience when they refusing to obey laws that they didn't like, cobbling together all star teams of lawyers to fight for high profile cases. And also some of our most important individual rights were really invigorated by cases involving corporations. One of the best examples is the freedom of the press. As I mentioned earlier, it was the newspaper companies that invigorated the freedom of the press, something that we all very much enjoy. But not only that, some of the earliest influential 14th Amendment due process cases were brought by corporations. Some of the earliest influential cases on the contract clause, a doctrine that today is pretty moribund, but was really one of the most important protections for individuals in the early 1800s. Again, some of the earliest cases were brought by corporations.

Dalia (47:53)

So that leads inexorably, I think, to the question that probably listeners have, which is when did it go off the rails? Adam, how did we get to the place where Hobby Lobby vindicates the rights of, as far as I understand, a non person to tell workers who are in fact ambulatory human persons that they don't have a statutory guaranteed right to contraception? When did we get to the place where it becomes, I think in some sense. Well, you'll tell me if I'm wrong. Fair to say that sometimes now in America, corporations have more rights than people. How did that happen?

Adam Winkler (48:35)

Well, I hate to say it happened a long, long time ago. I mean, we might even say it happened in 1809, that early. So 1809 was the year the very first Supreme Court case on the rights of corporations, a half century before the first comparable cases on the rights of African Americans or women. And in that case it dealt with whether Constitution claimed a right under the Constitution that was specifically granted in the text of the Constitution to citizens. And yet the Supreme Court held that that provision also protected corporations. And from that very moment we saw the Supreme Court broadly interpreting a living Constitution to protect business corporations. And by the way, when the Dred Scott was decided, the first African American supreme court case in 1857, the question at issue was whether African Americans could be citizens of under the exact same clause of the Constitution that was involved in that 1809 corporate rights case. And although the Supreme Court had said that corporations did count under that provision, it said that African Americans could not be citizens. So unlike racial minorities, even back then, corporations had rights the white man was bound to respect.

Dalia (49:54)

And tell us a little bit about the Lewis Powell moment. I think there is another inflection point in the book, which is Justice Lewis Powell and his influence in constructing the world we live in now this way, in which suddenly left, right and center corporations are vindicating civil rights at the expense, I think we could say, of what Sheldon Whitehouse might call the little guy.

Adam Winkler (50:27)

Well, Lewis Powell is really an important figure in the history of corporate rights. Three months before Lewis Powell is appointed to the Supreme Court, he writes a memorandum for the Chamber of Commerce. At this time, it's the period of Nader and the consumer rights movement, and there's environmental laws being adopted, and the left seems really ascendant. Powell writes this memo laying out a whole strategy for how business interests can fight back, for how corporate America can retake the initiative, and that businessmen have to get over their traditional reticence to be involved in partisan politics and instead must go full bore to fight for corporate interests. That document in the subsequent years becomes this really influential planning document for the rise of the new right. It's shared by executives all over the country and really helps inspire the business backlash that we saw in the late 1970s. And then then for Powell, while he's on the Supreme Court, he then gets the opportunity to operationalize his own memo when a case comes before them asking whether corporations have political speech rights even 30 years before citizens United. The Supreme Court, in a case called the Bilotti Case, written by Justice Powell, holds that corporations do have a right to speak on ballot measurements, campaigns. Citizens United was about candidate campaigns, but that Powell decision really expanded the rights of corporations to be involved in politics.

Dalia (52:00)

Can you talk a little bit, Adam, before I let you go? Your other book, which I think is a must read, was called and it just happens to be weirdly timely right now. It's the book that I think very much shaped the way I think about the Second Amendment. That was Gunfight, the battle over the right to bear arms in America. And I'm hearing from grumpy people that there's a two week wait on Amazon to get that book. So maybe people should buy we the Corporations while they're waiting. But okay, shilling notwithstanding, Adam, what lesson, what through line do you take from gunfight to we the Corporations in terms of the ability to constitutionalize very, very strange counterintuitive rights that maybe were not anticipated by the framers at the original framing, but certainly in the hands of very powerful entity, become these very, very broad, sprawling rights in 2018?

Adam Winkler (52:58)

Well, it really is a story of how democracy and the voices of we the people in some way get reflected in constitutional law, but not in a way that is, that perfectly captures the attitudes and opinions of we the people. But The Constitution, we have this idea this Constitution is sort of fixed and that whatever rights it provides, it provides. And you can amend it the way you want to amend it. And judges sometimes can abuse it by reading it too broadly. But really the story in both the context of gun rights and corporate rights is that we've had determined movements of people, and in some instances of corporate people, if you will, to really push and change the Constitution to provide broader protections or different protections than the framers originally held to. And in both the context of corporate rights and gun rights, we've seen tremendous shifts and evolution away from what the founders originally understood the Constitution to mean to protect new sorts of rights. One of the problems is that when we the people shape those constitutional rights may be inevitable. But one consequence is that the most wealthy, most organized, most politically active of the people, including corporations and the nra, tend to be successful in that process.

Dalia (54:20)

And that's the takeaway, right? I mean, my last question is for people who are not all that sanguine about dark money and the outsize influence of corporations on the electoral process, the answer isn't take away their rights. I think your answer is do what they're doing, but do it better.

Adam Winkler (54:38)

Well, I think that's right. And we need to see that in the gun control movement too. I mean, the reason why the gun rights folks have been so powerful is because they've been better politically organized, better mobilized, more engaged and active, and elected officials fear that. It's one thing to support background checks. It's another thing to base your vote on the candidate's position on background checks. And I think it's similar in the context of corporations. 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 they haven't had, because consumers haven't had the same kind of representation fighting for their rights.

Dalia (55:21)

And that's going to be your answer to my question. I've talked to you a hundred times in the years since your first book came out about gun control. And the answer is always like, eh, nothing's going to change. But I get the sense that you feel like maybe we are having a moment for a constitutional movement around guns right now.

Adam Winkler (55:38)

It does seem like we're really seeing a mobilization. The reason why nothing ever changed in those previous, after those previous incidents is because the gun control forces were just not as politically active and as mobilized as they needed to be. So I remember Heidi Heitkamp, who was a rookie Democratic senator from North Dakota when the universal background checks was proposed under Obama. And she said, look, it's 90% polling, but if you go to my office, it's running seven to one against background checks. If you look, look at calls to my office. And elected officials pay attention to that. They know who's making the phone calls, and that means more to them than just polling data. The same thing in with corporations. Corporations exert their influence by making their desires known to elected officials through lobbying campaigns and whatnot. And it doesn't really matter to corporations that their positions don't poll very well. It only matters to them whether they can influence those politicians and when they lose, whether they can influence the justices to overturn those regulations by asserting the rights of corporations.

Dalia (56:40)

Adam Winkler's new book, we the How American Businesses Won Their Civil Rights, is out this week. Adam, thank you so very much for joining us. I like the Mile High interview. It helps both understand corporations and guns at this moment. Thank you for being with us.

Adam Winkler (56:57)

Thanks again.

Dalia (56:58)

So that just about wraps it up for this episode of Amicus. Thank you, as ever, for listening. And if you'd like to get in touch, Our email is amicuslate.com and we love your letters. Thank you for sending them always. You can find us@facebook.com amicus podcast if you want to leave a note or a suggestion. Today's show was produced by Sara Burningham. Steve Lichti is our executive producer and June Thomas is managing producer of Slate Podcasts. We will be back with you in two short weeks for another episode of Amethyst.