At Bloomberg, Harvard’s Noah Feldman had a column on January 5 about the HHS mandate cases (h/t Rick Garnett at Mirror of Justice). There wasn’t much that Feldman got right beyond a bare outline of the relevant cases. For one thing, he seems to think that if a magic wand is waved by the government, announcing that insurance companies will provide “free” contraception, then in fact no one will wind up paying for it. Why anyone of ordinary intelligence should believe this is beyond me.
But here I want to focus instead on this interesting assertion by Prof. Feldman:
Start with corporations, which logically shouldn’t enjoy religious liberty rights any more than they enjoy free speech rights. The Framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.
The first observation worth making is that liberals generally have little use for originalism in any form—original intent, or understanding, or public meaning—but the First Amendment religion clauses are perhaps the only exception. Here, as others have remarked, everyone seems to be an originalist. The trouble is, liberals’ preferred originalism is to cite certain views that can be plausibly attributed to Jefferson and Madison and leave it at that. Even if the attribution is correct—and it isn’t always—the First Amendment religion clauses do not bear only their stamp.
Here, though, we have an assertion about “the Framers” having not much at all to do with the First Amendment, but everything to do with what Feldman thinks can be said about what “James Madison and the other fathers of the First Amendment” (whoever they are) thought about corporations. Here is the heart of Feldman’s argument:
[T]o them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood.
It is difficult to know what Feldman means by “emanations of the shareholders’ selfhood,” except that this is a notion Feldman disapproves of. But although corporations did not come into their heyday until several decades after the founding, they were already well known as “artificial persons” in the law. The Bank of the United States—a federally chartered corporation whose creation Hamilton proposed, Madison opposed, and Washington signed in the same year the Bill of Rights was ratified—was given the rights to sue and be sued in courts of law, to own property, and so forth. Any lawyer or judge at the time would have said—and I feel sure Feldman would say—that such an artificial person was owed due process under the Fifth Amendment before its property was taken. If a search for evidence of a crime were to be conducted on property owned by a corporation, would the Fourth Amendment’s standards on warrants and probable cause apply? If a newspaper—Madison and Jefferson were great fans of newspapers—were to be incorporated, would it have a freedom of the press protected by the First Amendment? These questions answer themselves.
Professor Feldman simply recapitulates the error of Justice Stevens in the Citizens United case. From “the framers I will choose to cite didn’t much like corporations,” Feldman and Stevens move to “therefore corporations do not receive the protections of the First Amendment.” Crashing non sequitur alert! It does not matter in the slightest what any of the framers thought about corporations, as good ideas or bad ones. If corporations are, as a matter of law, empowered to act with any of the attributes of persons, then it follows that those attributes of freedom we accord to persons, insofar as they are possible for persons other than natural to exercise, are properly accorded to corporations. This is consistent too with our commonplace treatment of corporations as moral agents. Can they behave well and be praised and rewarded? Can they behave badly and be held to account—including by the law? Then they have all the freedoms they are by their own peculiar nature capable of exercising.
A bumper-sticker mode of argument is sometimes used here (and has been used, alas, even by judges in the ongoing HHS cases). “Corporations cannot worship. Therefore they are unprotected by the First Amendment.” But the First Amendment does not mention “worship.” It refers to the “free exercise” of religion. Anyone who has ever set foot in a Hobby Lobby store knows perfectly well that the corporation engages in “religious exercise.” As does Belmont Abbey College (incorporated), Tyndale House publishers (incorporated), and so on, and so on.
Why Professor Feldman wants undeniably religious actors to have less freedom, I do not know.