Wednesday, April 2, 2014

Lamoreaux and Novak Discuss Corporate Rights in “Slate”

In "Getting the History Right," Naomi Lamoreaux of Yale University and William Novak of the University of Michigan provide a summary from the amicus brief written to the Supreme Court regarding Sebelius v. Hobby Lobby Stores Inc.  In legal terms, the issue in the case is (from the SCOTUS blog): “Whether the Religious Freedom Restoration Act of 1993 (RFRA) . . ., which provides that the government 'shall not substantially burden a person’s exercise of religion'  unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”
   One of the elements of the case rests on the extent to which corporations can be defined as "persons."   Lamoreaux and Novak write, “it seems reasonable that before altering the balance of power between corporations and the American people, the court should carefully consider recent scholarship in history.” They argue that
Contrary to present efforts to depict corporations as simple and natural entities—like persons—entitled to constitutional rights, a different view prevailed for most of American history. Until the mid-20th century, the corporation was seen as a special and artificial creature of the government. It has never been seen as entitled to the same array of rights guaranteed to citizens.
Lamoreaux and Novak are working on a longer term research initiative with the Tobin Project on the Corporation and American Democracy. An interview with the two can be found on the Tobin Project website. The full amicus brief, whose signatories also include Margaret Blair, Ruth Bloch, Eric Hilt, and Jonathan Levy, Ajay Mehrotra, Elizabeth Pollman, and John Wallis, is available here.

Tip of the hat to the Legal History Blog