“[W]e are of the opinion that there is a clear distinction . . . between an individual and a corporation, and . . . the latter has no right to refuse to submit its books and papers for an examination at the suit of the State.” The Court explained that the corporation “is a creature of the State,” ibid., with powers limited by the State. As such, the State may, in the exercise of its right to oversee the corporation, demand the production of corporate records. …
Although Hale settled that a corporation has no Fifth Amendment privilege, the Court did not address whether a corporate officer could resist a subpoena for corporate records by invoking his personal privilege – Hale had been protected by immunity."
Perhaps the word “absolutely,” was confusing. I meant that corporations absolutely had protections under the Fifth Amendment, not that “absolutely” all the protections of the amendment apply.
It’s true that corporate books and records are not “private papers” protected by the Fifth Amendment. Hale stands for that proposition, not the sweeping generalization that no Fifth Amendment rights whatsoever inure to corporate entities.
You can’t charge a corporation with a federal criminal act unless a grand jury indicts. You can’t re-try a corporation on a criminal charge subsequent to an acquittal. You can’t deprive a corporation of property without due process of law, nor take a corporation’s property for public use without just compensation.
Swing and a miss. Maybe I should stop expecting more from you than snipping his entire quote and trying to pretend that something is conceded when the opposite is very clearly stated repeatedly both before and after your snipped response.
Alito asks his question, and before Verrilli can even finish the answer, he’s interrupted again by Alito, and then Kennedy. When he is given the opportunity to respond (after two more Alito interruptions), he says, yes, they could raise a first amendment claim on behalf of the customers. Now I suppose you would have liked Verrilli to continue to interrupt and talk over the justices to finish his sentence, but I’m told that’s not a great way to proceed before the Supreme Court.
You take one part of his answer, pretend he didn’t continue his explanation, and then claim he somehow “conceded” something, despite the fact he very clearly denied that very thing not 20 seconds later.
Another honest-to-God, I don’t know the answer but I would like to learn, question:
Apart from RFRA, do other statutes direct courts on what standards of scrutiny they must apply in interpreting the Constitution? Is it controversial at all for the Legislative Branch to direct the Courts to make some type of hurdle or another in determining how the Constitution applies to a particular controversy?
The gist of my question is this: let’s say libertarians took over Congress and the White House, and made a law which required all governmental actions to withstand strict scrutiny. The goal of such a law would be to end Medicare, the Department of Education, certain parts of the Civil Rights Act of 1964, or whathaveyou.
Or, conversely, a group of authoritarians take power and direct that every law shall be interpreted under a rational basis, so that governmental power could take on as much as could possibly be allowed.
Are the courts really bound to follow such laws in place of their own judgment on the meaning of constitutional principles?
Answering this is too much typing without getting paid.
There have been plenty of statutes over the years that have been passed in response to court rulings, with the evident intent of changing the result of that ruling. Some have been successful; some not.
In the case of the RFRA, it seems they are – it’s been upheld against the federal government.
As far as I’m aware, yes. I don’t think that there is any argument that the state of the law now recognizes some of the protections of the Bill of Rights extend to Corporations, and that some of them don’t.
I don’t agree. In listening to the argument itself, his intent to concede the point seemed very clear, and his words did the same – until, as I said, Breyer rescued him.
So you draw the line at the public/private ownership difference? Privately owned for-profit corporations can have religious expression, but publicly owned ones can’t?
The courts are a co-equal branch and can of course say that they will decide what standards apply themselves. I think the reason they respect Congress on the strict scrutiny standard is because the 1st amendment is already usually regarded as requiring a strict scrutiny justification to infringe. RFRA just makes this clear so justices who are soft on the 1st amendment have a harder time weaseling to justify government action.
Now let’s say Congress decided to be too cute by half and pass a law stating that ALL laws, retroactively, had to satisfy strict scrutiny. I’ll leave aside that strict scrutiny can’t really apply to government programs because the government spending power is near absolute anyway, as is the government taxing power. That right there would make the law only useful when dealing with laws that carry criminal penalties that don’t have to do with Congress’ spending or taxing power. But if we assume it would lead to the striking down of Social Security and Medicare, the court wouldn’t hesitate for a second to say, "Yeah, I don’t think so. "And declare the law unconstitutional for infringing on the powers of the judicial branch. With a stern warning about trying to get out of political accountability by making the courts do their dirty work for them…
I can’t control what you want to hear. I can only point out your conclusion is specifically denied by him both right before and right after the part you “hear” as being conceded.
I’m inclined to say the simple answer is yes, and even with owner-run corporations, I’d have to see a history of religion put into practice in the business. A company like Chik-Fil-A or Hobby Lobby are overtly religious and so I frankly see no reason why they can’t be overtly religious. The owners founded them to be so and so they are. But if you have a business owner who has always just run their business like any other business and all of a sudden doesn’t like something that will cost him money, I’d treat that with a lot more skepticism.
But that’s just how I see the issue, the justices probably don’t agree. But I do think it’s important that Hobby Lobby was founded as an explicitly religious corporation, and I also think society not only has a place for such businesses, but needs such businesses.
By the by, I was looking for live audio of the argument, but the Supreme Court doesn’t post the audio until a couple weeks after. Where did you hear the argument Bricker, because I want to hear live the arguments in Riley v. California.
