In 2014, the U.S. Supreme Court decided that for-profit corporations were entitled to religious freedom protection. One of the companies that prompted the decision was Conestoga Wood Specialties, a Pennsylvania-based woodworking outfit run by a Mennonite family. It argued that it shouldn’t have to provide employees with insurance coverage of certain contraceptives under the Affordable Care Act, because it violated the company’s religious beliefs.
A majority of the court agreed, and the landmark decision became known for another business that opposed the contraceptive mandate: Hobby Lobby.
Hobby Lobby, and the court’s 2010 Citizens United decision — which determined that corporate political spending is protected free speech — have become shorthand for corporate victories in winning constitutional rights. But according to Adam Winkler, author of the 2018 National Book Award finalist We the Corporations, those two cases are just “the most visible manifestations of a much larger, and largely hidden, phenomenon.”
Winkler, a law professor at UCLA, discussed the long history of how freedoms for people have accrued to companies and what that means for businesses fighting against regulations during the Trump presidency. This interview has been edited for clarity and length.
In recent years, the Supreme Court has ruled that business corporations have rights of free speech and religious liberty, and I sought to find out, how did corporations win our most fundamental rights? In school, we learn about civil rights, women’s rights, state’s rights — but never corporate rights. I was shocked to discover, when I looked into the history, that like women and minorities, corporations have been fighting since America’s earliest days to win equal rights under the Constitution, and they use those rights to fight off regulation. In some ways, we might think of this corporate rights movement as one of the most successful, yet least-known civil rights movements in American history.
Although corporations don’t protest in the street demanding equal rights, they have fought for over 200 years in the Supreme Court to win landmark rulings extending the Constitution’s protections to them. And we can see markers of this throughout American history. The first Supreme Court case to explicitly ask whether corporations were protected by the Constitution was decided in 1809. That’s a half-century before the first Supreme Court cases on the rights of women and racial minorities.
We often think of corporate power in terms of lobbying or campaign contributions. But corporations also exert a lot of power in the courts. And while our image of Lady Justice is with a blindfold, and with equally weight scales, in fact, the courts are a very welcoming place for corporations. Corporations have the financial resources to bring lawsuit after lawsuit — even if the chances of winning are low. Corporations have the appetite for risk and the resources to pursue cutting-edge, high-risk lawsuits that could bring big gains to the corporation.
One thing that unites most justices over the course of American history is a tendency to favor business. And there have been many justices who have devoted themselves to reading the Constitution broadly to protect corporations. We could think of Justice Stephen Field back in the 1880s, who did more than anyone to give corporations rights of equality and due process. Or we can think of Justice Lewis Powell, in the 1970s, who fought vigorously to give corporations free-speech rights, 30 years before Citizens United.
That case is a great example of judicial activism at work. The court was not even confronted with the question of whether corporations had free-speech rights, but the justices were so eager to rule on it that they decided to raise that issue themselves. And that was rather surprising. Usually courts are reluctant to move beyond the demands and requests of the parties in the case. But in this instance, the justices felt that the parties were asking for too little, and that a major constitutional ruling protecting corporate-speech rights was appropriate.
Yes. The First Amendment and the freedom of speech is a hotbed of corporate rights litigation. Approximately half of all First Amendment cases brought in the federal courts today are brought by corporations or trade associations that represent business. So, we are seeing a very active move by corporations to use the Constitution to fight back against regulations. Corporations use the First Amendment to strike down graphic cigarette label warnings. Corporations have used the Constitution to strike down a securities rule requiring disclosure of the use of conflict minerals, as well as a host of other restrictions on advertising for alcohol, gaming, and tobacco.
I think it’s being driven by two things: One, corporations are more willing than ever to fight back against regulations. And, number two, the courts — especially in the era of Trump — are being filled with judges who are themselves likely to be hostile to many forms of regulation. If I were running a corporation, and wanted to fight against some regulations, now would be a very promising time.