Citizens United is hardly the first time that five justices of the U.S. Supreme Court have granted corporations special rights under the Constitution. In fact, you can chart the twists and turns in the politics of our country by the Supreme Court’s interpretation of the Constitution’s protection of big business.
During the First Gilded Age, when utility and railroad companies accreted enormous political power, the nation’s high court routinely blocked progressive reforms on the ground that they interfered with “freedom of contract.” The era is known by its most controversial decision, Lochner vs. New York, in 1905. The U.S. Supreme Court struck down a state law that barred bakers from being forced to work more than ten hours a day. The Court relied on a creative interpretation of the Fourteenth Amendment, which commands “No State shall … deprive any person of life, liberty, or property, without due process of law…”
Just as Citizens United equates money with freedom of speech under the First Amendment, the five to four majority of the Supreme Court in Lochner equated “liberty” with the “right” of a company to impose onerous and often dangerous working conditions on men, women and children. This judicial policy of deregulation combined with speculation and greed to produce the Great Depression. But President Roosevelt’s efforts to rescue the nation from the financial abysss were blocked by the Supreme Court, until Roosevelt provoked a constitutional crisis by proposing to add additional justices to the Supreme Court (one for every justice over seventy years old!) to create a majority that would support his legislation. In effect, FDR chose to fight politics on the high court with more politics. Having impaired the Court’s integrity and independence, the pro-big business Justices backed down, permitting New Deal legislation to take effect. Twenty years later, the Supreme Court acknowledged that, “the day is gone when this court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”
Though the Supreme Court ultimately stopped second-guessing the policies enacted by the Legislative Branch under the guise of interpreting the Constitution, its decision in Citizens United reflects an increasingly politicized Supreme Court. And what goes around, comes around. Even as Citizens United has ignited a grassroots rebellion and calls for a constitutional amendment to undo the Supreme Court’s damage to our democracy, scholars and pundits on the corporate-funded right are promoting the resurrection of Lochner. The legal attack on the 2010 federal health care reform can be seen as one manifestation of a revived challenge to the power of government to regulate industry. We’ll see how this plays out with the current majority of the Supreme Court when they begin to hear arguments against universal health care later this month.