The “Citizens United” decision and the Image of God

x-posted to Justice in the City


There was once a healthy and interesting conversation in this country about the relationship between religion and democracy. Not the specious bombast of the Rick Perryesque “America is a Christian country so we should be able to hate anybody we want and celebrate Christmas” kind of conversation. Rather a conversation about the roots of democracy and the relationship of democracy to the authoritarian reigns—political or religious, monarchic or ecclesiastic, and usually an admixture of the two—which preceded democracy. The move to democratic politics, according to many thinkers, retained the theological structures, if not the faith of their predecessors. In a way, democracy is a kind of secular mysticism. It is grounded in the belief that, according to the ancient maxim, vox populi vox dei, “the voice of the people is the voice of God.” That is, authority is grounded in the decisions of the people as a whole, which carries an authority beyond that of any individual, and does not rest in any token, singular, individual whether king or cleric.

This idea was articulated by one of the more interesting Jewish intellectuals of the mid-twentieth century, Jacob Taubes. A Jewish intellectual, ordained as an Orthodox Rabbi, he was born in Vienna in 1923 and died in Berlin in 1987 but spent a good deal of the fifties, and sixties in the United States. He was in conversation with the so-called New York intellectuals and taught talmud and discoursed upon everything from Paul to contemporary philosophy with the likes of Irving Kristol, Daniel Bell and Susan Sontag. In his 1953 essay, “On the Symbolic Order of Modern Democracy,” he wrote the following:

For the real source of the democratic belief lies … in the religious and political experience of the medieval and modern sects. There the image of God is not seen in the colors of power nor the image of society in the colors of arbitrary sovereignty. Religion is not authority, but participation in the community; the deity not the sanction of power, but of love. The principle of association that came to the fore in the sects is still a legacy to the future and the question is still open whether a community so conceived and so dedicated can long endure.

Taubes’ allusion to the “Gettysburg Address” in the last sentence and his affirmation of the power of love bring to mind Reverend Martin Luther King Jr.’s “I Have a Dream” speech at the Lincoln Memorial of a decade later. Taubes’ argument is that religion (as my colleague Rabbi Elliot Dorff often says) is the ligament that ties a community together. However, his argument goes far beyond that. Authority is no longer vested in a mortal symbol—neither symbol of God nor symbol of the State sanctioned by God, neither cleric nor king. Rather, authority is vested in the individual voices that come together in association which reflects the God of love not power. It is the combination of all of these individual voices into something greater which is the source of authority of the democratic state. It is this democratic community which, according to Taubes (in the words of Lincoln), is still in its experimental stage.

This mysticism, both secular and sacred, is grounded in the idea of the ultimate worth of every individual person—an idea that is articulated religiously as the image of God/tzelem elohim/imago Dei in which each person was created. A related idea is articulated in an ancient Rabbinic comment on the revelation at Sinai. The midrash collection Mekhilta de-Rabbi Ishmael says that the Torah was revealed to each person according to each person’s ability. It is only in the collective understandings of the hundreds of thousands of individual perceptions that Torah is revealed.

Democracy is the belief that every person’s voice, opinion and therefore vote matters.

I have been thinking of this recently in the light of the Supreme Court decision in the Citizens United case. The decision, in granting first amendment rights of free speech to corporations, establishes an idea of corporate personhood. The majority opinion of the Court writes against distinguishing between “natural persons” and corporate “persons”. (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”) The decision speaks of “an association that has taken on the corporate form,” and writes of corporations that don’t have first amendment rights as “disadvantaged persons”.

I do not wish here to discuss the awful legal ramifications of this decision. This has been done by many who are more learned than I—beginning with the dissent by Justice Stephens (“The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.”) (I would mention as an aside that the Court’s argument that “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy,” seems on its face absurd when one looks at levels of participation in elections.)

I do want to talk about the religious ramifications within the parameters drawn above. Corporate personhood is a throwback to pre-democratic notions of authority. The aggregation of power in the “person” of a corporation, essentially the claim that the aggregate capital of many stakeholders and therefore their voices are incarnated as the voice of the CEO of a corporation, sits on the other end of the spectrum from the idea of vox populi vox Dei. Giving an association of investors an individual identity harks back to the royal belief that the reigning monarch was the state. It is exactly this point which is challenged by the inclusive discourse which undergirds the secular mysticism of our democratic culture. When individual voices are drowned out by the aggregate voices of corporate “persons,” it is no longer an image drawn as a mosaic, but rather a claim to omniscience by an oracle.

There is one more relevant Talmudic tale. It is told in both the earlier, fifth century Palestinian Talmud and in a more robust form in the later Babylonian Talmud. It is the story of the confrontation between the Patriarch Rabban Gamliel, an aristocrat who (in the Talmud’s telling) stood as the spiritual and political head of the Jewish community in Palestine, and Rabbi Joshua, a Sage of a less exalted rank, one among many in the study hall. The confrontations between the two were numerous and finally came to a head when Rabban Gamliel humiliated Rabbi Joshua in public. This caused a backlash and Rabban Gamliel was deposed and replaced as Patriarch by a different Sage. The story itself is long and wonderfully told. However, for our purposes, the important point comes toward at the end of the narrative.

As background, one needs to remember the biblical story of Korah and Moses. Korah was the Levite who challenged Moses’ leadership by quoting God’s words that “for all the congregation is holy, every one of them.” Korah demand complete egalitarianism whilst Moses stood apart and above. In the Torah, Moses wins and Korah is swallowed up by the earth.

In the face-off between Rabban Gamliel and Rabbi Joshua, it is Rabbi Joshua who is in the Korah role, claiming that position is no guarantee of being right.Rabban Gamliel’s response is the aristocratic and authoritarian response of humiliating his opponent. However, in this story Korah, that is Rabbi Joshua, wins. The community of scholars would not stand for the silencing and humiliation of Rabbi Joshua’s voice. At the end of the story, Rabban Gamliel goes to Rabbi Joshua to ask his forgiveness. He finds Rabbi Joshua at home and is shocked to discover that Rabbi Joshua is a poor blacksmith who lives in a blackened hovel. When Rabban Gamliel expresses his shock, Rabbi Joshua’s response is: “Woe to the generation whose leader you are, for you do not know the suffering of the Sages and how they must support themselves.”

I think that we might say a similar thing to today’s leaders. The corporate leaders, the 1% who assume the mantel of “leadership” by way of access to inordinate resources, do not know the suffering of the people. The CEOs of the banks do not know the suffering of those that they are displacing. More disturbing than that, however, is that the Citizens United decision articulates a vision of a political culture which puts into question whether we are moving forward to form a more perfect union. A “union” in which the voice of aggregated wealth reigns will not long endure. It is rather the beloved community of many and disparate voices being heard and hearing each other which reflects the deity of love and enacts the mysticism which is democracy.

_________

My deepest gratitude to Martin Kavka for sharing his unpublished work and the Taubes essay with me.

17 Responses to “The “Citizens United” decision and the Image of God”

  1. The decision, in granting first amendment rights of free speech to corporations, establishes an idea of corporate personhood.

    Ironically, the Court established that idea in the more democratic era of 1886:

    en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad

    From George Will:

    The New York Times calls the court’s decision, which enables political advocacy by (other) corporations, a “blow to democracy.” The Times, a corporate entity, can engage in political advocacy because Congress has granted “media corporations” an exemption from limits.

    The Washington Post, also exempt, says the court’s decision, which overturned a previous ruling upholding restrictions on spending for political speech, shows insufficient “respect for precedent.” Does The Post think the court incorrectly overturned precedents that upheld racial segregation and warrantless wiretaps? Are the only sacrosanct precedents those that abridge (others’) right to speak?

    www.washingtonpost.com/wp-dyn/content/article/2010/01/27/AR2010012703909.html


    Jonathan1 · January 3rd, 2012 at 2:52 pm
  2. Yeah, Will should have read the dissents. The only move the majority had to hide their shame was to make believe it was about media corporations. If you are interested in why Will’s arguments are specious, read the dissent to the decision (its linked in my post).


    Aryeh Cohen · January 3rd, 2012 at 8:02 pm
  3. The only move the majority had to hide their shame was to make believe it was about media corporations.

    First you are arguing that the Court–in Citizens United–established the idea of corporate personhood which has ironically existed since the 19th century.

    Now you’re just saying that the majority is trying to hide their shame. I don’t think they’re ashamed at all of this.

    The decision, in granting first amendment rights of free speech to corporations . . .

    No, the Court–in its ruling– did not deny first amendment rights of free speech to corporations. There is a difference.

    Had the Court ruled as you wanted it also would have overturned ideas of freedom of speech that have existed since the 18th century.

    That’s fine with me. The Court can go in different directions, as well as can the country.

    But perhaps spare us some of the hyperbole implied in your post, of the evil-spirited justices, hatching yet another plot to move the country away from democracy.


    Jonathan1 · January 4th, 2012 at 5:14 am
  4. J1-
    the Supreme Court first established corporate personhood earlier than you mentioned, but specifically for the enforcement of contracts and the case you cited is limited to the personhood regarding the 14th amendment (due process). Aryeh is correct in stating that the Citizens United case is the first time corporations were granted the understanding of personhood as it relates to the 1st amendment (freedom of speech).

    I would say the most important point in Aryeh’s post is “A ‘union’ in which the voice of aggregated wealth reigns will not long endure,” because as he notes “The CEOs of the banks do not know the suffering of those that they are displacing.” By declaring corporate personhood to apply to first amendment rights actually abrogates the rights of individual citizens in a political and legal system that favors wealth over individual sovereignty. In a society where lawmakers are among the wealthiest citizens and corporate interests have direct ear to representatives while “regular” citizens do not, we are not just closer but well within the dictionary definition of fascism as an economic system defined by the full cooperation between the federal sector and the private sector. Rights of the individual will continue to be eroded in favor of rights of the corporate person so long as corporations are given political influence in all branches of government.

    It is not the justices themselves that are evil-spirited, it is the whole system as it stands today (and in my opinion, while Aryeh is certainly not saying this, it was designed from day 1 to be like this).


    justin · January 5th, 2012 at 4:15 pm
  5. the Supreme Court first established corporate personhood earlier than you mentioned, but specifically for the enforcement of contracts and the case you cited is limited to the personhood regarding the 14th amendment (due process).

    ? מה אתה אומר

    Here’s the case to which you refer: en.wikipedia.org/wiki/Dartmouth_College_v._Woodward.

    And that legal principle was then incorporated
    here:
    en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad

    And that’s the case cited, etc.

    (I was trying to avoid BZ’s rath).

    It is not the justices themselves that are evil-spirited, it is the whole system as it stands today (and in my opinion, while Aryeh is certainly not saying this, it was designed from day 1 to be like this).

    I don’t think Aryeh and you are of the same opinion. I agree with you that the system is very flawed–although I don’t know a better alternative.

    On the other hand, I do take issue with the idea that the justices themselves are insidious men and women.


    Jonathan1 · January 5th, 2012 at 6:32 pm
  6. Aryeh’s point was the the Citizens United case is the first time the court extended corporate personhood to first amendment rights and he is correct in that. That corporations were deemed by the courts to be persons in regards to contract enforcement and due process in the 19th century does not have anything to do with personhood regarding free speech.

    I also stated that, based on what he wrote, Aryeh did not share my opinion.

    A better alternative is simple and obvious — a system not corrupted by money. why is that so hard to imagine?


    justin · January 6th, 2012 at 12:42 am
  7. That corporations were deemed by the courts to be persons in regards to contract enforcement and due process in the 19th century does not have anything to do with personhood regarding free speech.

    Ironically, it has everything to do with the Citizens United case. The Court had already established that corporations are legal persons, and in Citizens United the Court decided that it is unconstitutional to deny those legal persons the right to free speech, vis-a-vis campaigns.

    It doesn’t really matter, though. It’s not the point of this post.

    I also stated that, based on what he wrote, Aryeh did not share my opinion.

    You did–I misread.

    A better alternative is simple and obvious — a system not corrupted by money. why is that so hard to imagine?

    The yetzer hara is a pretty powerful force.


    Jonathan1 · January 6th, 2012 at 5:11 am
  8. Reb Levi Yitzhak of Berdichev wrote on Parashat Shlah Lekhah:
    חכמינו ז”ל אמרו מקושש לשם שמים נתכוין, שידעו העולם הגם שנגזר עליהם למות במדבר אף על פי כן חייבים לשמור התורה והמצות, עיין במדרשי חכמינו ז”ל. ולכאורה תמוה אף על פי כן האיך חילל שבת. אמנם חכמינו ז”ל אמרו (שבת קה, ב) ‘מלאכה שאינה צריכה לגופה פטור עליה’, והנה הכא נמי כיון שלא היה בדעתו לקושש עצים לצרכו, שלא היה צריך כלל, רק נתכוין שיתקדש שם שמים על ידו, אם כן הוא מלאכה שאינה צריכה לגופה, אם כן לא חילל שבת כלל, רק סקלוהו עבור העולם שלא ידעו מזה, כפשט המדרש

    The idea is this: the m’koshesh gathered sticks on shabbat and God instructed Moshe to put him to death for his transgression. As the Kedushat Levi reads the Midrash he quotes, he understands it to mean that the m’koshesh knew precisely what he was doing and what the punishment would be — he also knew that the others in the community did not understand the severity and enormity of shabbat. So he created a scenario where people could see how important it was.

    What’s the connection? If we actually had a real justice system dedicated the democratic values and the rights of the individuals to be free from tyranny (corporate tyranny in this instance) then we would be able to hold people accountable for their corruption. Rather, in the case of Citizens United the corruption has been deemed legal. The yetzer hara is indeed a powerful force, but so is true justice. Not that I’m advocating such violence, but there is a reason many revolutions have purged the previous leaders…


    justin · January 6th, 2012 at 10:59 am
  9. there is a reason many revolutions have purged the previous leaders…

    I think having this frame of mind isn’t constructive for someone invested in making the system more just. If your mental fallback position is, well, if the corporations and courts don’t obey we could always have a Red Terror and wipe the slate clean… You’ve got some issues, my friend.

    Good Shabbos!


    Victor · January 6th, 2012 at 12:39 pm
  10. “Not that I’m advocating such violence”


    justin · January 6th, 2012 at 4:18 pm
  11. The yetzer hara is indeed a powerful force, but so is true justice.

    Maybe you’re right. Let’s hope for the best.


    Jonathan1 · January 7th, 2012 at 1:06 pm
  12. “Not that I’m advocating such violence”

    Right, of course not. You wouldn’t advocate such a immoral monstrosity. However, you will be the one who rationalizing it when it happens. Just out of curiosity, have you read any early accounts of the Russian Revolution?

    I’ve said this in the past, but I consider those who participate in OWS without having read Achipelag Gulag to be unbearable poseurs.


    Victor · January 8th, 2012 at 12:03 am
  13. i’ve actually studied the russian revolution at great length in both primary and secondary documents and did so with one of the few american scholars working and researching in moscow in the 1950s. this is what inspired my statement, which was not a rationalization but rather was an observation.


    Justin · January 8th, 2012 at 12:18 am
  14. The aggregation of power in the “person” of a corporation, essentially the claim that the aggregate capital of many stakeholders and therefore their voices are incarnated as the voice of the CEO of a corporation, sits on the other end of the spectrum from the idea of vox populi vox Dei. Giving an association of investors an individual identity harks back to the royal belief that the reigning monarch was the state.

    I very much disagree with this characterization.

    The “person” with the free speech rights in the context of corporate speech is the organization itself, not any one individual who happens to work for that organization (no matter how lofty his title).

    While many corporate CEOs are very powerful, they are ultimately employees who owe fiduciary duties to their shareholders. This is totally different from a monarch whose word is law and who himself embodies the state. It takes a revolution or a coup, not a board vote, to depose a monarch.

    On top of all of that, you seem to assume that Citizens United is specifically about the rights of for-profit business corporations, when it actually covers labor unions, non-profit corporations and other organizations as well. Labor unions and groups like the ACLU were actually strong advocates for the winning side, as they have very legitimate roles to play in political spheres and were constrained prior to the Citizens United decision.

    All of this is not to say that I think Citizens United is good for our political system. Quite the contrary–from a policy perspective I think it’s terrible. But from a legal perspective, I find it very hard to argue with the court’s decision. And I think much of the anti-corporate-personhood rhetoric that seems popular in lefty circles these days is just plain stupid. We certainly need checks on the power that can be amassed by megacorporations. But calls to abolish corporate personhood are effectively calls to return us to an agrarian society.


    themicah · January 9th, 2012 at 1:28 am
  15. I consider those who participate in OWS without having read Achipelag Gulag to be unbearable poseurs.

    I consider those who attend a Tea Party rally without an exhaustive knowledge of the Wannsee Conference and the architectural renderings of Hitler’s bunker to be insufferable douchebags.

    I’ve said this in the past. . .

    Yes, we’ve all committed humiliating indiscretions and issued statements of barely comprehensible stupidity, but there’s no reason for continued public self-flaggellation about it.


    david · January 11th, 2012 at 3:43 pm
  16. The CEOs of the banks do not know the suffering of those that they are displacing. More disturbing than that, however, is that the Citizens United decision articulates a vision of a political culture which puts into question whether we are moving forward to form a more perfect union.

    Well, in one week, the Supreme Court has struck down the Arizona immigration law, and it’s also upheld the health care law.

    I guess the big banks and the 1% took off this week–they weren’t able to pull the strings and tell the justices how to interpret the U.S. Constitution.


    Jonathan1 · June 28th, 2012 at 10:22 am
  17. If we actually had a real justice system dedicated the democratic values and the rights of the individuals to be free from tyranny (corporate tyranny in this instance) then we would be able to hold people accountable for their corruption. Rather, in the case of Citizens United the corruption has been deemed legal.

    It’s hard for me to understand this statement.

    Undoubtedly the Supreme Court Justices are not above criticism . . . .

    but does Justin think that the 5 majority justices in Citizens United were dedicated to enhancing “corporate tyranny,” at the expense of “democratic values?”

    Earlier today, did the 5 majority justices commit that “ObamaCare” needs to prevail whatever the cost, so that President Obama can win this November’s election?

    Do we really have such little regard for the intelligence and integrity of the Supreme Court justices?

    I guess so.


    Jonathan1 · June 28th, 2012 at 3:11 pm

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"I may attack a certain point of view which I consider false, but I will never attack a person who preaches it. I have always a high regard for the individual who is honest and moral, even when I am not in agreement with him. Such a relation is in accord with the concept of kavod habriyot, for beloved is man for he is created in the image of God." —Rav Joseph Soloveitchik