Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Elections for Sale

Roy Clouser


August 31, 2012

By Roy Clouser 

In 2010 the Supreme Court ruled in Citizens United v. the Federal Election Commission that since corporations are persons, limiting what they may contribute to an election campaign would be an infringement on their right of free speech. Even aside from confusing spending limits with free speech, this decision is a tragedy based upon a lie. Moreover, it is a lie that should be especially important for Christians to take note of. Here's why: 

Christian thinkers such as Augustine, Aquinas and Calvin all held that the principles of justice and morality were "natural" in the sense of having been built into creation by God. They also held that God created human nature so that all humans have a sense of those principles, a sense of right and wrong. Since a right is a benefit or immunity that cannot be denied without injustice, knowing the principles of justice and morality is the basis upon which we are able to know human rights. For example, it is because we know it is wrong to murder or steal, that we know that all people have the right not to be assaulted or robbed. 

But when Jefferson wrote the Declaration of Independence, he reversed the relation between the laws of justice and rights. He said that it was self-evident that humans have rights, and that we then make laws to protect those rights: "all men... are endowed by their Creator with inalienable rights... and that it is to secure these rights that governments are instituted among men." This made two mistakes at once: It made rights the basis of laws instead of natural law the basis of rights, and it restricted rights only to individuals. This has had two tragic effects. 

First, it led to questions about who was born with rights and who wasn't. Seeing rights as based upon the subjective condition of each individual led to debates which first resulted in rights being denied to women and slaves. By contrast, seeing rights as based on the God-created principle of justice would have required that they are true not only of every human being but also of every social institution, because a universal law holds for all creation. 

Second, if only individuals have rights, corporations would have no rights and lack legal standing before the courts. Since that was an absurd result, the courts began—very early in U.S. history—to hold that corporations are individual persons for legal purposes (Dartmouth College v Woodward, 1819). In other words, the courts enforced a blatant lie rather than recognize that institutions have rights as well as individuals. 

In this way the courts abandoned the Christian view of justice. They should have held that since the norm of justice is a universal law, social communities, such as businesses, schools, churches, families, art organizations, charities, etc., also have rights. Instead they endorsed Jefferson's mistake, and invented a "legal fiction" to allow corporations to have legal standing. But that fiction did not compensate for the mistake because it failed to extend the same rights to other non-corporate social institutions. 

No matter what any court may say, no social community is a person any more than a person is a community. "Legal fiction" is a polite term for a proposition we know to be false but treat as the truth, something that in any other context is called a "lie." Failing to acknowledge the mistake that required the fiction, the present Supreme Court has used it to foist upon us yet another tragedy: U.S. elections are now for sale to the richest corporations because of the lie that they are persons.

—Roy Clouser is Professor Emeritus of The College of New Jersey, the author of The Myth of Religious Neutrality: An Essay on the Hidden Role of Religious Belief in Theories (1992, 2005) and a former Trustee of the Center for Public Justice. 

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”