The other side of the Hobby Lobby decision

posted at 12:41 pm on July 2, 2014 by Jazz Shaw

The team here has had plenty of great coverage since the Hobby Lobby decision came down, but there are still elements of not only the court case, but the highly vocal opposition to it which leave me puzzled. There has been plenty of analysis regarding the religious freedom aspect of the case, particularly from Ed, and that is certainly an important facet of the discussion. But I find myself even more perplexed by the arguments I’ve been seeing regarding the nature of personhood vis-à-vis corporations and how they shouldn’t be eligible for the various assurances found in the bill of rights.

One sterling example of this curious battle cry may be found in a piece from Rick Ungar at Forbes, under a title which includes the 24 Point, breathless phrase, Founding Fathers Spinning in their Graves.

However, no matter how the 5-4 majority of Supreme Court Justices wish to parse it, the Court has, this very day, destroyed the true nature of the corporate entity—a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer in the Secretary of State’s office in each of our 50 states.

If you doubt that this is the reality of what a corporation was intended to be versus how today’s Supreme Court decision—coupled with their Citizens United ruling — has “morphed” the nature of an American corporation, I strongly suggest you take a look at the constraints on corporations in the time of the Founders of this nation and how the Founders themselves felt about the corporate entity.

It was the “Founding Fathers” part of the article which really caught my attention, as I had no idea that G. Washington and his various associates were so bullish on business. But if you go on to read the editorial, the author proceeds to cite numerous instances where Queen Elizabeth I and her various family successors stomped on the rights of business. (Wait… didn’t we actually fight a war to abandon those crown wearing despots?) Then, after ten paragraphs of talking about the attitude of the English Monarchy toward corporations interspersed with seeming non-sequiturs mentioning the Founding Fathers, in a failed attempt to conflate the royals with America’s actual founders, he offers this:

While we know that the Founders had contempt for these corporate entities and the corruption they had produced in England’s Parliament, it appears to have never occurred to them to directly address corporations when they wrote the Constitution.

Well, okay then.

But to my original point, when did we see people – especially those in the media – blandly accepting and asserting that corporations aren’t people? Ungar himself puts forward the claim that corporations are, “a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer…”

Is a piece of paper capable of conducting interviews and hiring workers? Can it invent and design new things, hammer out a way to manufacture them and appeal to the mass market to buy them? Can it wrestle with the tough decisions about benefits for employees or how and when those workers will no longer have jobs if the business suffers? No, it can’t. All of those things are the actions of actual human beings… specifically the ones who start or run the business in question. And those people all have values and opinions of their own.

In the era of my father and my grandfather, businesses owned by a single person, a few partners or multiple generations of families were even more prevalent than now. And even today nearly a third of all businesses with a value of more than $1M are owned in the majority by similar small groups. And those businesses most certainly reflected the values of those people who created and operated them. Just like today, those people all enjoyed the full slate of rights enjoyed by other citizens.

So why does it strike so many people as beyond the realm of credibility that these corporate owners would have rights, including freedoms of religion, speech and all the rest? It’s possible, I suppose, that some of us have developed such an inherent mentality of entitlement that we assume that we are owed a job, and once gaining employment, that we should be able to dictate how the “faceless piece of paper in the drawer” treats us without concern for the sensibilities of those who filed the paper originally.

But that really doesn’t make sense. It’s yet another example why these various and sundry federal mandates, handed down from on high to the segment of the nation who didn’t build that simply fly in the face of what we all expect as our hope for and share of the American dream. A corporation may be a piece of paper, but it’s only a de facto invitation to business leaders to pay taxes. And the business leaders in that equation are most certainly people.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2

**affecting best Fat Elvis voice**

Thank ya, thank ya very much. :-)

Resist We Much on July 2, 2014 at 3:36 PM

Uum, the Federal Dictionary Act applies to acts of Congress, not the US Constitution. Please go look at the language at the top of your link.

jim56 on July 2, 2014 at 2:49 PM

Yes, and unlike the contraception mandate, the RFRA was an act of Congress.

Do try to keep up.

The Schaef on July 2, 2014 at 3:41 PM

**affecting best Fat Elvis voice**

Thank ya, thank ya very much. :-)

Resist We Much on July 2, 2014 at 3:36 PM

Sigh… It would be like watching the Undertaker ripping Andy Koffmans head off watching you and jim56 in a court room arguing corporate law… Not much fun for jim56, but loads of fun for you and everyone watching…

oscarwilde on July 2, 2014 at 3:43 PM

Resist We Much on July 2, 2014 at 3:10 PM

*clap*
*clap*
*clap*

GWB on July 2, 2014 at 3:21 PM

+1,000

That’ll leave one hell of a mark, RWM.

Athos on July 2, 2014 at 3:47 PM

R

esist We Much on July 2, 2014 at 3:10 PM

To RWM: ^5!!

To jimbo: *snap*

Newtie and the Beauty on July 2, 2014 at 3:13 PM

So the ‘special privileges’ afforded to the MSM, but not immediatly given to Bloggers, should also be null n void?

I mean, since corporation aren’t people and all that rot…

BlaxPac on July 2, 2014 at 3:14 PM

Resist We Much on July 2, 2014 at 3:10 PM

Doh…. jim56′s great great great grandchildren (if he’s not gay) are going to inherit that bruise…

oscarwilde on July 2, 2014 at 3:21 PM

Resist We Much on July 2, 2014 at 3:10 PM

*clap*
*clap*
*clap*

GWB on July 2, 2014 at 3:21 PM

None of you are lawyers, right?

You really don’t get this distinction.

There’s a difference between the right to set up and operate a corporation under state statutes and rights given to a corporation by the US Constitution. Nothing I’m writing about would revoke the ability to set up and operate corporations. I’m generally writing about new rights given to a corporation under the US Constitution.

The 1819 case said that the establishment of a corporation was a contract right and the Supreme Court said the Contracts Clause of the US Constitution prohibits states from retroactively cancelling private contracts. (New Hampshire wanted to revoke the charter after it was granted). Because states can’t retroactively override contract rights, people were then comfortable setting up corporations. (States got around the “no retroactive cancellation” provision by specifically including the right to revoke the charters of corporations in their corporate laws, meaning that the revocation provisions were part of the charters/contracts going forward.)

That’s also different from any discussion about what Constitutional rights the entity has.

I agree with what RWM wrote. She’s confirmed that corporations are normally set up to avoid personal liability.

And I am paying attention to what she’s saying. You’re not understanding what she’s saying as far as I can tell.

I’m glad you’re clapping for RWM. She is a good lawyer.

Now where exactly is the “bruise that’s supposed to hurt” for decades? I’m missing your points.

jim56 on July 2, 2014 at 3:51 PM

None of you are lawyers, right?

jim56 on July 2, 2014 at 3:51 PM

Nope, I am not a lawyer, are you? I have started three corporation, though I suppose that doesn’t count. The bruise, it come from 1819…

oscarwilde on July 2, 2014 at 3:59 PM

Oh, and this is 1819 beating your ass senseless.

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality — properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand…

The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country, and this benefit constitutes the consideration, and in most cases, the sole consideration of the grant. In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable or public-spirited individuals, desirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely and certainly without an incorporating act. They apply to the government, state their beneficent object, and offer to advance the money necessary for its accomplishment, [p638] provided the government will confer on the instrument which is to execute their designs the capacity to execute them. The proposition is considered and approved. The benefit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advantages to the public constitute a full compensation for the faculty it gives, there can be no reason for exacting a further compensation by claiming a right to exercise over this artificial being, a power which changes its nature and touches the fund for the security and application of which it was created. There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed, but is in direct contradiction to its express stipulations.

From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be controllable by the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporating act [p639] change the character of a private eleemosynary institution…

And then there’s this:

A corporation is defined by Mr. Justice Blackstone (2 Bl.Com. 37) to be a franchise. It is, says he,

a franchise for a number of persons to be incorporated and exist as a body politic, with a power to maintain perpetual succession, and to do corporate acts, and each individual of such corporation is also said to have a franchise, or freedom.

oscarwilde on July 2, 2014 at 4:02 PM

rights given to a corporation by the US Constitution

1) Rights aren’t given by the Constitution, they are recognized by the Constitution.
2) Those rights are recognized as belonging to persons – which RWM keeps telling you included “corporations” as far back as English common law (which preceded the Constitution by about 200-300 years, iirc).

The 1819 case said that the establishment of a corporation was a contract right

RWM seems to disagree with you over a holding in that case. I don’t have time to look it up, but I’m betting she’s right that there is a holding in that case that specifies or re-iterates the common law position that a ‘corporation’ is a person. Your insistence that there is only one relevant holding in that case is … odd.

Now where exactly is the “bruise that’s supposed to hurt” for decades? I’m missing your points.

jim56 on July 2, 2014 at 3:51 PM

No kidding.

GWB on July 2, 2014 at 4:05 PM

No kidding.

GWB on July 2, 2014 at 4:05 PM

The Black Knight…

oscarwilde on July 2, 2014 at 4:13 PM

Dartmouth is cited because it was the first case in which the Supreme Court recognised the putative personhood of corporations.

The idea that corporations just recently received constitutional rights is absurd on its face and on the law. As I indicated, the Supreme Court recognised that corporations had constitutional rights, on both the Federal level and in the states through the Fourteenth Amendment, in Santa Clara County and Pembina, along with a plethora of later cases.

Is it only a recent development that the government must obtain a warrant to search a corporation’s property? Did corporations not have Fourth Amendment rights prior to the Roberts Court?

Is is only recently that corporations were awarded protection under the Takings Clause of the Fifth Amendment? If they didn’t have them previously, why did we establish corporate taxes? If corporations lacked Fifth Amendment protections, the government could have just confiscated as much of the assets it wanted.

Did media corporations only recently acquire First Amendment rights?

Did corporations not have due process rights until recently?

Resist We Much on July 2, 2014 at 4:27 PM

I’m generally writing about new rights given to a corporation under the US Constitution.

jim56 on July 2, 2014 at 3:51 PM

No, you’re not.

The 1819 case said that the establishment of a corporation was a contract right and the Supreme Court said the Contracts Clause of the US Constitution prohibits states from retroactively cancelling private contracts. (New Hampshire wanted to revoke the charter after it was granted). Because states can’t retroactively override contract rights, people were then comfortable setting up corporations. (States got around the “no retroactive cancellation” provision by specifically including the right to revoke the charters of corporations in their corporate laws, meaning that the revocation provisions were part of the charters/contracts going forward.)
That’s also different from any discussion about what Constitutional rights the entity has.

jim56 on July 2, 2014 at 3:51 PM

No, it didn’t.

Now where exactly is the “bruise that’s supposed to hurt” for decades? I’m missing your points.
jim56 on July 2, 2014 at 3:51 PM

I wouldn’t try sitting down any time soon

Dang, but the derp is strong with this one.

Newtie and the Beauty on July 2, 2014 at 4:33 PM

oscarwilde on July 2, 2014 at 4:02 PM

Nice having stuff like that at one’s fingertips, isn’t it ;-)

Newtie and the Beauty on July 2, 2014 at 4:35 PM

Resist We Much on July 2, 2014 at 4:27 PM

While I freely admit that I am not a lawyer, and my opinions should not be taken as legal advice. My reading of Dartmouth is that the Supreme Court did not grant putative personhood of corporations, but actually affirmed their prior existence.

Which is to say, that the court did not say, ok now you have putative personhood of corporations, but rather to say, this pre existing right cannot be stripped from you.

As I said, I’m not a lawyer, but that’s how it reads to me.

oscarwilde on July 2, 2014 at 4:36 PM

oscarwilde on July 2, 2014 at 4:02 PM

Nice having stuff like that at one’s fingertips, isn’t it ;-)

Newtie and the Beauty on July 2, 2014 at 4:35 PM

Funny thing about liberals, they’re like the Black Knight, even when beaten to death with facts, they insist that they are winning.

oscarwilde on July 2, 2014 at 4:39 PM

oscarwilde on July 2, 2014 at 4:13 PM

I laughed out loud – without even clicking I knew what it would be!

GWB on July 2, 2014 at 4:44 PM

I’m missing your points.

jim56 on July 2, 2014 at 3:51 PM

Welp, I guess the New York Times has no freedom of the press, then, since it’s incorporated.

And all that grumbling about the NSA tapping cell phones is sound and fury, too, since your service is provided by a corporation, whose data networks are not proteceted by the Fourth Amendment.

Not that it matters to Sprint or AT&T anyway, because they are corporations and not people. And just like a corporation “cannot have a religious view”, it also cannot have an ethical view, and therefore feel no compunction whatsoever about anything that happens to your data. Likewise, your pleas for minimum wage hikes and free child care and profit-sharing and what not, have all fallen on deaf ears, for a piece of paper has no ears, nor ethics, nor religion, amirite?

The Schaef on July 2, 2014 at 4:45 PM

Resist We Much on July 2, 2014 at 4:27 PM

While I freely admit that I am not a lawyer, and my opinions should not be taken as legal advice. My reading of Dartmouth is that the Supreme Court did not grant putative personhood of corporations, but actually affirmed their prior existence.

Which is to say, that the court did not say, ok now you have putative personhood of corporations, but rather to say, this pre existing right cannot be stripped from you.

As I said, I’m not a lawyer, but that’s how it reads to me.

oscarwilde on July 2, 2014 at 4:36 PM

Here are the holdings:

The opinion of the Court, after mature deliberation, is that this is a contract the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason and by the former decisions of this Court.

It results from this opinion that the acts of the Legislature of New Hampshire which are stated in the special verdict found in this cause are repugnant to the Constitution of the United States, and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed.

jim56 on July 2, 2014 at 4:48 PM

Here are the holdings:

jim56 on July 2, 2014 at 4:48 PM

I see nothing in that quote which instills upon a person a new right that did not exist prior to the ruling, especially given the reference to former decisions.

The Schaef on July 2, 2014 at 4:50 PM

jim56 on July 2, 2014 at 4:48 PM

Silly troll…everything was laid out for you here.

You really should’ve paid attention in your Reading Comprehension classes…when you attended, that is

Newtie and the Beauty on July 2, 2014 at 4:52 PM

Here are the holdings:

jim56 on July 2, 2014 at 4:48 PM

I see nothing in that quote which instills upon a person a new right that did not exist prior to the ruling, especially given the reference to former decisions.

The Schaef on July 2, 2014 at 4:50 PM

Only that the state can’t retroactively interfere with a contract consistent with the US Constitution.

jim56 on July 2, 2014 at 4:48 PM

Silly troll…everything was laid out for you here.

You really should’ve paid attention in your Reading Comprehension classes…when you attended, that is

Newtie and the Beauty on July 2, 2014 at 4:52 PM

That is dicta—meaning it’s not relevant to the holding.

jim56 on July 2, 2014 at 4:55 PM

That is dicta—meaning it’s not relevant to the holding.

jim56 on July 2, 2014 at 4:55 PM

No, that means it is fact upon which the holding is based.

GWB on July 2, 2014 at 5:02 PM

Only that the state can’t retroactively interfere with a contract consistent with the US Constitution.

jim56 on July 2, 2014 at 4:48 PM

That is not a new right. To say you can’t do something contrary to the Constitution only establishes that the right was alreadyt extant at the time.

BUT, since corporations are not persons in your view, they don’t enjoy any protection from the Constitution which you claim only applies to people-people.

The Schaef on July 2, 2014 at 5:04 PM

GWB on July 2, 2014 at 5:02 PM

I retract my statement as said: “dicta” is “Opinions of a judge that do not embody the resolution or determination of the specific case before the court.”

I restate:
It seems to clearly be not “dicta” but facts as evidenced by history and legal precedent.

GWB on July 2, 2014 at 5:05 PM

Newtie and the Beauty on July 2, 2014 at 4:52 PM

That is dicta—meaning it’s not relevant to the holding.

jim56 on July 2, 2014 at 4:55 PM

You’re so full of shit.

MARSHALL, C.J., Opinion of the Court

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is an action of trover, brought by the Trustees of Dartmouth College against William H. Woodward, in the State court of New Hampshire, for the book of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves to be entitled.

A special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the Legislature of New Hampshire, passed on the 27th of June, and on the 18th of December 1816, be valid, and binding on the Trustees, without their assent, and not repugnant to the Constitution of the United States; otherwise, it finds for the plaintiffs. [p625]

The Superior Court of judicature of New Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this court by writ of error. The single question now to be considered is do the acts to which the verdict refers violate the Constitution of the United States?

This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a State is to be revised — an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion, this Court has expressed the cautious circumspection with which it approaches the consideration of such questions, and has declared that in no doubtful case would it pronounce a legislative act to be contrary to the Constitution. But the American people have said in the Constitution of the United States that “no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” In the same instrument, they have also said, “that the judicial power shall extend to all cases in law and equity arising under the Constitution.” On the judges of this Court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the Constitution of our country has placed beyond legislative control; and however irksome the task may be, this is a duty from which we dare not shrink. [p626]

The title of the plaintiffs originates in a charter dated the 13th day of December, in the year 1769, incorporating twelve persons therein mentioned, by the name of “The Trustees of Dartmouth College,” granting to them and their successors the usual corporate privileges and powers, and authorizing the Trustees, who are to govern the college, to fill up all vacancies which may be created in their own body.

The defendant claims under three acts of the Legislature of New Hampshire, the most material of which was passed on the 27th of June, 1816, and is entitled “An act to amend the charter, and enlarge and improve the corporation of Dartmouth College.” Among other alterations in the charter, this act increases the number of Trustees to twenty-one, gives the appointment of the additional members to the executive of the State, and creates a Board of Overseers with power to inspect and control the most important acts of the Trustees. This Board consists of twenty-five persons. The President of the Senate, the speaker of the house of representatives, of New Hampshire, and the Governor and Lieutenant Governor of Vermont, for the time being, are to be members ex officio. The Board is to be completed by the Governor and Council of New Hampshire, who are also empowered to fill all vacancies which may occur. The acts of the 18th and 26th of December are supplemental to that of the 27th of June, and are principally intended to carry that act into effect. The majority of the Trustees of the college have refused to accept this amended charter, and have [p627] brought this suit for the corporate property, which is in possession of a person holding by virtue of the acts which have been stated.

It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the Crown for a charter to incorporate a religious and literary institution. In the application, it is stated that large contributions have been made for the object, which will be conferred on the corporation as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely, in this transaction, every ingredient of a complete and legitimate contract is to be found. The points for consideration are, 1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?

1. On the first point, it has been argued that the word “contract,” in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to offices held within a State, for State purposes, and to many of those laws concerning civil institutions, which must change with circumstances and be modified by ordinary legislation, which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and its obligations are affected by the laws respecting divorces. That the clause in the Constitution, if construed in its greatest latitude, [p628] would prohibit these laws. Taken in its broad, unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a State, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That, as the framers of the Constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term “contract” must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to restrain the legislature in future from violating the right to property. That, anterior to the formation of the Constitution, a course of legislation had prevailed in many, if not in all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements. To correct this mischief by restraining the power which produced it, the State legislatures were forbidden “to pass any law impairing the obligation of contracts,” that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself, and that, since the clause in the Constitution must in construction receive some limitation, it may be confined, and ought to be confined, to cases of this [p629] description, to cases within the mischief it was intended to remedy.

The general correctness of these observations cannot be controverted. That the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. [*] Those acts enable some tribunals not to impair a marriage contract, but to liberate one of the parties, because it has been broken by the other. When any State legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other, it will be time enough to inquire, whether such an act be constitutional.

The parties in this case differ less on general principles, less on the true construction of the Constitution in the abstract, than on the application of those principles to this case and on the true construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incorporation be a grant of political power, if it create a civil institution, to be employed in the administration of the government, or if the funds of the college be [p630] public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.

But if this be a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves, there may be more difficulty in the case, although neither the persons who have made these stipulations, nor those for whose benefit they were made should be parties to the cause. Those who are no longer interested in the property may yet retain such an interest in the preservation of their own arrangements as to have a right to insist that those arrangements shall be held sacred. Or, if they have themselves disappeared, it becomes a subject of serious and anxious inquiry whether those whom they have legally empowered to represent them forever may not assert all the rights which they possessed while in being; whether, if they be without personal representatives who may feel injured by a violation of the compact, the Trustees be not so completely their representatives in the eye of the law as to stand in their place not only as respects the government of the College, but also as respects the maintenance of the College charter. It becomes then the duty of the Court, most [p631] seriously to examine this charter and to ascertain its true character.

oscarwilde on July 2, 2014 at 5:07 PM

Concurrence

WASHINGTON, J., Concurring Opinion

WASHINGTON, Justice.

This cause turns upon the validity of certain laws of the State of New Hampshire, which have been stated in the case, and which, it is contended by the counsel for the plaintiffs [p655] in error, are void, being repugnant to the constitution of that State and also to the Constitution of the United States. Whether the first objection to these laws be well founded or not is a question with which this Court, in this case, has nothing to do, because it has no jurisdiction as an appellate court over the decisions of a State court except in cases where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission.

The clause in the Constitution of the United States which was drawn in question in the Court from whence this transcript has been sent is that part of the tenth section of the first article which declares that “no State shall pass any bill of attainder, ex post facto law, or any law impairing the obligation of contracts.” The decision of the State court is against the title specially claimed by the plaintiffs in error under the above clause, because they contend that the laws of New Hampshire, above referred to, [p656] impair the obligation of a contract and are consequently repugnant to the above clause of the Constitution of the United States, and void. There are, then, two questions for this Court to decide: 1st.: Is the charter granted to Dartmouth College on the 13th of December 1769, to be considered as a contract? If it be, then, 2d.: Do the laws in question impair its obligation?

1. What is a contract? It may be defined to be a transaction between two or more persons, in which each party comes under an obligation to the other and each reciprocally acquires a right to whatever is promised by the other. Powell on Cont. 6. Under this definition, says Mr. Powell, it is obvious that every feoffment, gift, grant, agreement, promise, &c., may be included, because in all there is a mutual consent of the minds of the parties concerned in them, upon an agreement between them respecting some property or right that is the object of the stipulation. He adds that the ingredients requisite to form a contract are, parties, consent, and an obligation to be created or dissolved; these must all concur, because the regular effect of all contracts is, on one side, to acquire, and on the other, to part with, some property or rights, or to abridge or to restrain natural liberty, by binding the parties to do, or restraining them from doing, something which before they might have done or omitted. If a doubt could exist that a grant is a contract, the point was decided in the case of Fletcher v. Peck, 6 Cranch 87, [p657] in which it was laid down that a contract is either executory or executed; by the former, a party binds himself to do or not to do a particular thing; the latter is one in which the object of the contract is performed, and this differs in nothing from a grant; but whether executed or executory, they both contain obligations binding on the parties, and both are equally within the provisions of the Constitution of the United States, which forbids the State governments to pass laws impairing the obligation of contracts.

If, then, a grant be a contract within the meaning of the Constitution of the United States, the next inquiry is whether the creation of a corporation by charter be such a grant as includes an obligation of the nature of a contract which no State legislature can pass laws to impair? A corporation is defined by Mr. Justice Blackstone (2 Bl.Com. 37) to be a franchise. It is, says he,

a franchise for a number of persons to be incorporated and exist as a body politic, with a power to maintain perpetual succession, and to do corporate acts, and each individual of such corporation is also said to have a franchise, or freedom.

This franchise, like other franchises, is an incorporeal hereditament, issuing out of something real or personal, or concerning or annexed to, and exercisable within a thing corporate. To this grant or this franchise the parties are the King and the persons for whose benefit it is created, or Trustees for them. The assent of both is necessary. [p658] The subjects of the grant are not only privileges and immunities, but property, or, which is the same thing, a capacity to acquire and to hold property in perpetuity. Certain obligations are created, binding both on the grantor and the grantees. On the part of the former, it amounts to an extinguishment of the King’s prerogative to bestow the same identical franchise on another corporate body, because it would prejudice his prior grant. 2 Bl.Com. 37. It implies, therefore, a contract not to reassert the right to grant the franchise to another, or to impair it. There is also an implied contract that the founder of a private charity, or his heirs, or other persons appointed by him for that purpose, shall have the right to visit and to govern the corporation of which he is the acknowledged founder and patron, and also that, in case of its dissolution, the reversionary right of the founder to the property with which he had endowed it should be preserved inviolate.

oscarwilde on July 2, 2014 at 5:12 PM

I had a friend ask this question.
IRT the baker who was sued because they
would not make a wedding cake for a
homosexual couple …
if the baker incorporated themselves,
as in a closely held corp.
and said it was against their religious beliefs to do so.
would that allow them do so?

I said that the SC ruling mentioned that.
you still could not “discriminate” against customers
so you would have to provide services for anyone
willing to pay.

conservative tarheel on July 2, 2014 at 2:25 PM

Bakers are running up against state/local anti-discrimination laws. RFRA only applies to federal laws. Unless the state has a similar RFRA or judicial precedent, it doesn’t apply. The baker wouldn’t have to incorporate, just being a person makes it apply, if the state has an RFRA.

cptacek on July 2, 2014 at 5:26 PM

That is dicta—meaning it’s not relevant to the holding.
jim56 on July 2, 2014 at 4:55 PM

Horse manure. That is from the opinion YOU linked to:

http://www.law.cornell.edu/supremecourt/text/17/518
jim56 on July 2, 2014 at 2:43 PM

Newtie and the Beauty on July 2, 2014 at 6:01 PM

jim56 on July 2, 2014 at 3:51 PM

Sounds exactly like nonpartisan’s brain.

Schadenfreude on July 2, 2014 at 6:06 PM

Sounds exactly like nonpartisan’s brain.
Schadenfreude on July 2, 2014 at 6:06 PM

Dense, hard to penetrate, obtuse, obstinate, derp…

Newtie and the Beauty on July 2, 2014 at 6:08 PM

Dense, hard to penetrate, obtuse, obstinate, derp…

Newtie and the Beauty on July 2, 2014 at 6:08 PM

With zero proof of Harvard law degree.

Schadenfreude on July 2, 2014 at 6:16 PM

With zero proof of Harvard law degree.
Schadenfreude on July 2, 2014 at 6:16 PM

And not even the decency to claim one from Montgomery Ward’s…

Newtie and the Beauty on July 2, 2014 at 6:17 PM

That is dicta—meaning it’s not relevant to the holding.

jim56 on July 2, 2014 at 4:55 PM

Horse manure. That is from the opinion YOU linked to:
Newtie and the Beauty on July 2, 2014 at 4:52 PM

That is dicta—meaning it’s not relevant to the holding.

jim56 on July 2, 2014 at 4:55 PM

You’re so full of shit.
….
oscarwilde on July 2, 2014 at 5:07 PM

From what oscarwilde posted:

The points for consideration are, 1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?

As you correctly pointed out, dicta is the opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum.

West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

So, again, dicta is stuff extraneous to the resolution of the case. The only points decided in the resolution of this case were the answers to the two questions noted.

You two can apologize anytime you want to me.

And Schaef, I have never said corporations weren’t persons. All I said was that corporations previously did not have many rights under the US Constitution (we can argue about which clauses and how many).

You are all just baiting me for grins, right?

jim56 on July 2, 2014 at 6:44 PM

Question for Jimbo:

Let’s take the right to religious freedom. Can a corporation have that?

You will answer, NO! That’s a new right the Christianist Reich Winger Roberts court invented just to keep the war on women alive! How can the Sandra Flukes of the world afford their birth control when they work for Hobby Lobby? Wahhhhh!

Or something. Setting aside the fact that if Sandra Fluke cannot afford her birth control, she has no right to pick my pocket for it, there’s a bigger question:

What about a Corporation Sole? See the wikipedia article about it. It has been around a long, long, long time. One of it’s primary purposes is to be a corporation to handle a religion’s legal affairs. The Catholics use it for their parish priests. The LDS (Mormons) church is, legally speaking, a corporation sole.

Are you going to argue that this form of corporation does not have religious freedom? Probably, because then you would have no bar to seizing all of said corporation’s assets.

Like your kind did in the 1800′s to the Mormon church, what with legally dissolving it and seizing (without compensation, mind you) all of its property.

Vanceone on July 2, 2014 at 6:55 PM

Then, after ten paragraphs of talking about the attitude of the English Monarchy toward corporations interspersed with seeming non-sequiturs mentioning the Founding Fathers, in a failed attempt to conflate the royals with America’s actual founders, he offers this:

I think you’re forgetting that some of the colonies themselves were made by corporations. Of course the Founders had enmity toward corporations…they were the local proxy for the crown.

See: The Virginia Company, the Massachussets Bay Company, etc..

James on July 2, 2014 at 7:00 PM

Where does the Constitution empower government to prohibit the religious expression of “non-persons”?

flyovermark on July 2, 2014 at 7:44 PM

Now where exactly is the “bruise that’s supposed to hurt” for decades? I’m missing your points.

jim56 on July 2, 2014 at 3:51 PM

…it’s by that opening where you poop… and have been putting the salve around it.

JugEarsButtHurt on July 2, 2014 at 10:29 PM

A corporation belongs to shareholders. The Hobby ruling specifically applies to closely held corporations (i.e. corporations where it is easy to identify the shareholders and thus their beliefs) vs widely held corporations (e.g. IBM which has such a wide array of shareholders).
If you say that a person has a personal right to their religious belief but that the person loses that right if they organize their commercial life in the form of a corporation, then you are placing a limit on the person’s ability to practise their religion or on their ability to pursue commercial activities.
Imagine if there was a law that said you could only get a drivers license if you deny the trinity. Christians would be forced to choose between being able to legally drive a car or their faith. A drivers license has been held as a privilege, not a right (similar to the privilege but not right to incorporate).
Where would the difference be in the two examples. You can certainly live without a driver’s license, millions do, but it would also be inconvenient and limiting for many. You can certainly conduct a business without incorporation, but it would be inconvenient and limiting for many.
Congress passing a law that forces people to choose between their faith and following the law seems to me a prime example of a congressional act respecting an establishment of religion or prohibiting the free exercise thereof.
Of course Hobby was decided on RFRA grounds, but I think it could just as easily been decided on First Amendment grounds.

yetanotherjohn on July 2, 2014 at 10:42 PM

The Hysterical Haridans’ Reaction To Hobby Lobby

Resist We Much on July 2, 2014 at 8:47 PM

You are wrong. The discussion of the First Amendment rights (not critical to the holding) suggests that closely-held religious corporations could impose religious requirements as a condition to employment.

jim56 on July 2, 2014 at 11:51 PM

The discussion of the First Amendment rights (not critical to the holding) suggests that closely-held religious corporations could impose religious requirements as a condition to employment.

jim56 on July 2, 2014 at 11:51 PM

How so?

And, if race and gender can be considered… is it really wrong if religion can be considered as well?

malclave on July 3, 2014 at 12:26 AM

How so?

And, if race and gender can be considered… is it really wrong if religion can be considered as well?

malclave on July 3, 2014 at 12:26 AM

Race and gender can’t now be considered.

jim56 on July 3, 2014 at 12:28 AM

Race and gender can’t now be considered.

jim56 on July 3, 2014 at 12:28 AM

Then how come I keep hearing about people calling for “diversity” in hiring?

malclave on July 3, 2014 at 1:02 AM

What’s Unger’s view on labor unions: people or not people?

Bitter Clinger on July 2, 2014 at 12:56 PM

Substitute “corporation” for “rebellion” in the following (and “a person” for “legal”), and you have the answer.

“A rebellion is always legal in the first person – our rebellion; it is only in the third person – their rebellion – that it is illegal.” Dr. Ben F. via “1776″

AesopFan on July 3, 2014 at 1:30 AM

Then how come I keep hearing about people calling for “diversity” in hiring?

malclave on July 3, 2014 at 1:02 AM

Do the same exercise as above.
One can only consider race and gender to get the “correct” kind of diversity.

AesopFan on July 3, 2014 at 1:33 AM

If corporations aren’t people, then the government should be able to censor any billboard, ad or communication generated by the corporation…oh, wait. They can’t? You meant the first amendment applies to business?

BierManVA on July 3, 2014 at 6:36 AM

I have never said corporations weren’t persons. All I said was that corporations previously did not have many rights under the US Constitution

jim56 on July 2, 2014 at 6:44 PM

The rights enjoyed by a corporation are commensurate with the rights of the persons who make up the controlling interest of said corporation.

You say they have “not many rights” but I don’t really see what rights you think they lack. Speech? Press? Assembly? Petition? Bearing arms? Not being forced to quarter soldiers? Secure property absent a warrant? Due process? Trial by jury with representation?

If you presume that religious conscience is a right that corporations do not enjoy, then going through the Bill of Rights, it would really seem to stand alone in that regard.

The Schaef on July 3, 2014 at 9:39 AM

The rights enjoyed by a corporation are commensurate with the rights of the persons who make up the controlling interest of said corporation.

You say they have “not many rights” but I don’t really see what rights you think they lack. Speech? Press? Assembly? Petition? Bearing arms? Not being forced to quarter soldiers? Secure property absent a warrant? Due process? Trial by jury with representation?

If you presume that religious conscience is a right that corporations do not enjoy, then going through the Bill of Rights, it would really seem to stand alone in that regard.

The Schaef on July 3, 2014 at 9:39 AM

They are not commensurate. I don’t think a corporation itself has the right to assemble. It’s only one person. I don’t think they have the right to vote or to bear arms. I don’t think they have the right to be the President, Vice President or run for public office or be an elector. There’s probably others.

jim56 on July 3, 2014 at 1:13 PM

I don’t think a corporation itself has the right to assemble.

Wow, what a blow to my psyche. I just went to a convention that was organized by an incorporated entity. I guess they should have been arrested for creating an illegal assembling of persons.

I don’t think they have the right to bear arms.

Well, plenty of weapons are owned by incorporated entities, so what you think is contrary to reality.

The rest is nonsense. Qualifications to hold public office are part of the framework of the government, not a right held by the people. I referred to things a person (physical or legal) can do in the course of its conduct without impedance from the government. You know, that list of “negative liberties” the president was wringing his hands about. And the estimation you provide still excludes religious conscience but no others.

The Schaef on July 3, 2014 at 1:50 PM

Comment pages: 1 2