Judicial review regarding “due process of law” impacts a range of legal fields: contract law, issues of racial equality and citizenship rights, economic regulation, and campaign finance restrictions. From its earliest interpretation of due process of law in Dred Scott v Sanford (1857), the Supreme Court has applied the term to enforce legal uniformity across state boundaries for those whom it considers to be citizens, or, in simpler terms: persons endowed with full legal rights. Due process of law is a universal term inherently dependent on interpretation: it describes the rights afforded to different individuals in relation to certain contexts. It is a twofold protective mechanism: it both guarantees to individual citizens protection against public and private sector practices that promote inequality, and invests in federal and state governments the right to check individual actions in favor of the securing the general welfare. The concept was first applied to distinguish the legal status of white citizens from that of free blacks; now it conflates that of individuals with that of corporations.
In Dred Scott v Sanford, Justice Taney introduced due process to the judicial canon as a means of invalidating the Missouri Compromise, a Congressional initiative to dismantle gradually the practice of slavery. The sanctity of contract, according to Justice Taney, took, and should take, precedence over any ensuing legislation ratified by Congress. According to his opinion, “[t]he rights of property are united with the rights of person…an Act of Congress that deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”
A Brief History
The “property” in question was another person, Dred Scott. The Court evaluated the case as though there were only one legitimate, or rather, one human party present. In so doing, the Court not only reinforced fugitive slave acts from the bench, but also established due process of law as a rubric for determining the identity of persons, to whom the essential rights of citizenship were afforded. But what are the rights of a citizen? Who or what is considered a citizen? Dred Scott, in the eyes of the Court, had neither legal claim to his own personhood, nor the guarantee of constitutional rights, because he was not an individual, but the “property” of a “citizen” “with the rights of a person.” Nonetheless, just over a hundred and fifty years later, the Court seems to have returned to this initial confusion—this time, eliminating the distinction between groups and individuals, collective and singular contributions, corporations and people.
As Professor Richard Fallon of Harvard Law School explained in an interview with the HPR, “It has long been settled that corporations are entitled to claim the rights of citizens…Corporations can object to their property being removed [by the federal government] in the same manner as a person; in a takings case, a corporation had the same rights of individuals; the federal government cannot interfere with a corporation’s right of contract in the same manner that it cannot that of individual,” but, “prior to Citizens United, Congress had more latitude to regulate corporate expenditures of money towards the outcomes of political campaigns than those of individual people.”
Key to the discussion of campaign finance regulation is the question: to whom is free speech guaranteed? Court interpretation of political speech has been consistent with the argument espoused by the framers of the Constitution: the right of an individual to free speech is a constitutional safeguard against tyranny. Beginning with Ex Parte Milligan (1866), the Court established clear correlations between civil liberty, trial procedure, and free speech, all of which are encompassed by due process. In Ex Parte Milligan, Lamdin P. Milligan, a member of the Order of American Knights (an insurrectionary political organization), had been charged with insubordination to the Union, taken into custody by the U.S. government, and then tried under martial law. The Court ruled that an American citizen could not be denied his rights to a fair trial and habeas corpus for acts of political expression. Due process, the Court argued, ensured to Milligan, and to all American citizens, a fair trial.
During the Civil War, the Court had considered Lamdin P. Milligan to be a citizen for whom due process was a safeguard against the tyrannical proceedings of martial law, but nearly eighty years later, in 1943 and 1944, the Court revised its previous interpretation of due process in Hirabayashi v U.S. and Korematsu v U.S. During World War II, the United States compelled Japanese-Americans living in California to enter internment camps and to obey curfew restrictions, on the grounds that they may be loyal to the Japanese Empire. Japanese-Americans who failed to comply with conflicting military orders (some orders issued required that they evacuate the area, others that they remain put) were incarcerated. Both Korematsu and Hirabayashi had been convicted under these conflicting orders. Justice Roberts, in his dissenting opinion in Korematsu, described the true intent of these orders: “The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp.”
German and Italian-Americans, by contrast, were investigated on an individual basis: alleged disloyalty to the United States was not automatically attributed to an entire class of people. For Italian and German Americans, guilt was personal, and independent of national origin and ancestry. In Hirayabashi and Korematsu, the Supreme Court found that the U.S. military had the right to suspend the constitutional rights of Japanese-Americans, and claimed that the context of war justified this racially-driven suspension of due process. Justice Roberts wrote in his dissenting opinion: “[This] is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States… I need hardly labor the conclusion that Constitutional rights have been violated.” Citizenship status was contingent upon race, and the due process of law applied only to those whom the Court considered to be citizens of a certain race.
Hirabayashi and Korematsu did not represent a complete return to Dred Scott: on the one hand, the Japanese-Americans in question were clearly considered by the Court to be people. On the other hand, it is unclear whether they were considered citizens. Professor Fallon distinguished the two terms: “There are places where the Constitution uses ‘citizen’ and places where it uses ‘person.’ There are some instances where citizenship clearly matters—a non-citizen cannot vote; whereas as a citizen has that right; a non-citizen may be deported; whereas a citizen cannot be.” Is any government-mandated relocation of people—in this case, the internment of Japanese-Americans—on par with deportation? While these Japanese-American citizens seemed to have had their citizenship rights forcibly forfeited to individual mobility, much like Dred Scott in Dred Scott v Sanford, they still retained other aspects of citizenship: notably, the right to vote. Their civic voice, or right to political expression, however, was overshadowed by the strength of then contemporary military interests combined with racially based beliefs. The government gave a powerful non-civic entity, the military, the right to deny certain basic rights to actual citizens.
In other instances, the Court has in fact checked the influences of non-civic entities in favor of preserving the rights of citizens. While the contractual rights of the non-civic entities known as “corporations” are on par with those of an individual citizen, the Court has invoked substantive due process to place federal and state restrictions on the private practices of corporations. In their ongoing efforts to “level the playing field” between corporations and persons, the Court has secured individual rights at the expense of private entities that are not citizens by upholding governmental restrictions on commercial practices and influences. Substantive due process has been applied to both contract and campaign finance cases based on a single judicial interpretation: that, compared to persons, corporations and private entities have, by definition, potentially overwhelming power to wield disproportionate influence.
In West Coast Hotel v Parrish (1935), the Court reversed its rulings in Lochner v New York (1906) and Adkins v Children’s Hospital (1923), which had held that New York and the District of Columbia, respectively, were unable to enact labor laws that set minimum wages and capped work hours. The precedents established by Lochner and Adkins had asserted that the right of individuals to make contracts with their employers could not be infringed upon, even by protective measures designed to benefit the employed party. Both Lochner and Adkins assumed that contracts were made in a societal vacuum, so to speak, where both parties were equally capable of establishing and negotiating for fair terms. The Court rejected this assumption in West Coast Hotel, and Justice Hughes defined freedom of contract for the majority: The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law, but the liberty safeguarded is liberty in a social organization, which requires the protection of law against the evils that menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation, which is reasonable in relation to its subject and is adopted in the interests of the community is due process. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.”
Money and Speech
“Prohibitions imposed in the interests of the community,” have, up until recently, defined and validated campaign finance law as well. In Austin v Michigan Chamber of Commerce (1989) and McConnell v FEC (2003), the Court upheld state and federal restrictions on corporate spending. The Court confirmed the constitutionality of the Michigan Campaign Finance Act and asserted that the Michigan Chamber of Commerce, although it was a nonpartisan and “non-ideological organization,” resembled a corporation in respect to both its structure and economic affiliations and was therefore subject to the restrictions imposed by the act. The decision of the Court in McConnell, to uphold the ban on soft-money contributions established by the McCain-Feingold Campaign Finance Law (2002), cited the precedent set in FEC v National Right to Work Committee, that “contribution limits are grounded in the important governmental interests in preventing ‘both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.’” Justice O’Connor and Justice Stevens, writing for the majority in McConnell, wrote, “The question for the present purposes is whether large soft-money contributions to national party committee have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress’s belief that they do.”
The Court rejected this line of argument in Citizens United v Federal Election Commission (2010) by personifying corporations, so to speak, and by endowing them with human capacities, namely the right to speech. By substantially rewriting the precedents of Buckley v Valeo (1976) and First National Bank of Boston v Bellotti (1978), the Court argued that “speech” and “money” were interchangeable terms and that corporations were, in the eyes of the law, people. An article published by The Nation on July 30th, 2010 described the precedents applied in Citizens: “it is important to understand that the ruling is based on a combination of distortion and overstatement, used to achieve a clear political objective: opening the floodgates for even more vast sums of corporate cash to be injected into the election process,” (Mei Wolf, The Nation).
Not long after the ruling in Citizens, in spring 2011, this writer went with other members of her high school U. S. History class to visit the Supreme Court and speak with Chief Justice Roberts in particular. I asked the Chief Justice: “If you consider yourself a judicial minimalist, how were you able to equate money with speech in Citizens United?” I was hoping he would identify a precedent or some strand of argument for the judicial interpretation he had supported. His curt response, however, was limited to the following: “If the Sierra Club wants to say how much they like a candidate, they should be able to.” (One can appreciate the Chief Justice’s choice of anthropomorphic “corporate” vehicle here, the Sierra Club, a sure favorite with presumably environmentally concerned American high school students, while perhaps the last non-governmental organization capable of flooding campaign processes with unlimited monetary reserves needed to coerce government officials into accepting its “quid pro quo” schemes to save the planet.)
Liz Kennedy, Counsel at Demos, a left-leaning think tank, described, in a recent interview with the HPR the effects of Citizens United: “Citizens United has allowed for money to have an even greater improper influence on our government than before. The smallest slice of wealthy Americans, the donor class, dominates the funding of our politics and policy. Now due to Citizens United corporations are newly able to spend directly from their corporate treasuries in support or opposition to political candidates.” Professor Lawrence Tribe of the Harvard Law School, when asked in an interview with the HPR if an argument could be constructed to mitigate or overcome Citizens United, responded: “Mitigate, probably yes. Overcome completely, probably no.”
At the heart of this debate is the nature of citizenship in a representative government. The distinctions between people and entities, citizens and non-citizens are increasingly unclear. The Court has made corporations citizens. Their rights to speech and due process have been established in Citizens United. Their legal cycle of life has been made to resemble that of any individual: first they were endowed with anthropomorphic form; then they were endowed with the rights of person to speak; now they can claim rights to due process of law.
As citizens in a representative democracy, we express our views through the act of voting and other forms of political speech. The notions, first advanced in Citizens, that the votes reflecting views held by citizens and the views held by non-voting corporations are one and the same, and that the rights of speech of citizens thus accrue to the monetized “speech,” or financial contributions, of corporations, eviscerate the most fundamental constitutional rights and political institutions of citizens, as of persons, in both in practice and principle. American constitutional law has utilized the concept of due process incrementally to protect the rights of all persons in the aftermath of slavery. In an odd way, we, persons and citizens of the U.S., are all become “Dred Scott” – “free,” yet judicially unprotected, individuals – now.
Image Credit: REUTERS/Molly Riley