Factually! with Adam Conover - Guns, Corporations & The Constitution w/ Adam Winkler

Episode Date: May 29, 2019

Adam Winkler, professor of constitutional law at the UCLA School of Law and author of Gunfight: The Battle over the Right to Bear Arms in America, joins Adam on the premiere episode of Factually! to talk about the history of the 2nd amendment, corporations and the constitution and being a Nintendo loyalist. This episode is brought to you by Kiwi Co (www.kiwico.com/FACTUALLY) and Away (www.awaytravel.com/factually code: FACTUALLY). Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

You know, I got to confess, I have always been a sucker for Japanese treats. I love going down a little Tokyo, heading to a convenience store, and grabbing all those brightly colored, fun-packaged boxes off of the shelf. But you know what? I don't get the chance to go down there as often as I would like to. And that is why I am so thrilled that Bokksu, a Japanese snack subscription box, chose to sponsor this episode. What's gotten me so excited about Bokksu is that these aren't just your run-of-the-mill grocery store finds. Each box comes packed with 20 unique snacks that you can only find in Japan itself.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code factually for $15 off your first order at Bokksu.com. That's code factually for $15 off your first order on Bokksu.com. I don't know the way I don't know what to think I don't know what to say Yeah, but that's alright Yeah, that's okay I don't know anything Hello and welcome to Factually. I'm Adam Conover and since this is the first episode of this brand

new podcast, let's talk a little bit about what we're going to be doing on this show. If you're anything like me, you're painfully aware of how little you actually know. You know, we all spend our lives peering out of our two little eye holes on this big wild universe, trying to make sense of it, but limited by our own narrow perspectives and the very short amount of time we have on earth to learn about it. As a result, I find myself constantly hungry for new facts, new ideas, new ways of thinking that give me that wonderful feeling that everything I thought I knew was wrong. Well, that's what this show is about. Every episode, me and my research team are going to bring you some fascinating information

that'll blow your mind and get you started thinking differently about the world around you. And then I sit down with a scientist, scholar, journalist, even a Pulitzer Prize winner or two to go deep and share the revelatory new perspectives they've gained from a lifetime of research and study. And plus, you know, I toss a joke in there every now and again, try to keep it funny. If you're a curious person who never stops asking questions, I think this show is for you. But look, enough introduction, let's start the show. Imagine for a moment, a faraway fantasy land with no ruler. Instead of a king or a queen or an archduke or even a baroness, this land is

ruled by a magical scroll drawn up by a council of ancients. These saintly men, so the story goes, channeled the wisdom of the ages into their quills to create it. And for centuries later, the people worshipped this document as unique, unsurpassable, and even divinely inspired. There's just one problem. This magic scroll isn't, you even divinely inspired. There's just one problem. This magic scroll isn't, you know, infinitely long. It's just a couple dozen quatrains or so, so it can't possibly account for every single situation that confronts our fantasy land.

And on top of that, some of its language seems a little, I don't know, vague? Like, you know, maybe the Council of Ancients didn't totally agree on every point? And different villagers, you know, reading the same magical scroll in good faith, can come to different conclusions about what it means, and sometimes the conflict over the meaning of this scroll even begins spilling over into violence. So, what to do?

Well, in this land came along a cast of holy, black-robed priests devoted to the magic scroll. We are the masters of the scroll, they declared. And everyone in the land was like, huh? Okay, I guess if you say so. And even though the magic scroll didn't explicitly say that these priests were the final word on what the scroll meant, that's what they became. 200 years later, they were still there, interpreting the meaning of the scroll from a cave deep in a magic forest or whatever. And whenever they issued a new proclamation, the people had no choice but to agree. Yes, that must be what the holy document said all along. Now, as you probably guessed, this land I'm describing is our land.

This is a lot like one of those young adult novels you would get in the middle school library that was just a thinly veiled metaphor for modern life. Guilty as charged. I apologize. But I put it this way to point out that so much of what to us seems basic about the structure of our society is actually just a highly specific weirdness that we haven't thought enough about. As kids, we learned to revere that council of ancients

as our founding fathers, even though they were just, you know, human guys cobbling together a government in crappy wigs with lice underneath. And we learned to revere the literal robe-wearing interpreters of the Constitution at the Supreme Court, even though the power the Supreme Court wields to strike down laws wasn't even in the Constitution. In fact, judicial review wasn't even a thing at all until the Supreme Court itself decided it was in Marbury v. Madison in 1803.

Even though the Constitution is a document that's defined by its amendments, it's easy for us to imagine it as static and timeless and otherworldly. There's a whole school of constitutional interpretation that's grown up around the original intent of the founders called originalism. Even though Thomas Jefferson himself once said, don't listen to us, we dead. interpretation that's grown up around the original intent of the founders called originalism. Even

though Thomas Jefferson himself once said, don't listen to us, we dead. Okay, that was a paraphrase. Here were his actual words. He wrote this in 1816. We might as well require a man to wear the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. That's what Thomas Jefferson said. Now, there's nothing wrong with having a shared American mythology around our founding documents like the Constitution or our institutions like the Supreme Court. There's even an academic term for the jumble of symbols and rituals of the country that help bind us, civil religion. But our magic scroll idea of the Constitution, for whatever it gives us, also makes it harder to see how the real-world Constitution we have is the product of centuries of legal cases and precedents, all subject to the conditions and biases of the time in which they were made.

And a lot of these stories of how our understanding of the Constitution changed end up being crazy and surprising. In fact, a lot of the central freedoms we ascribe to the Constitution didn't even exist for much of American history. Take the First Amendment's freedom of speech. We all learn in school that we have a free speech where one of the only limits on it is if it presents a clear and present danger, like shouting fire in a crowded theater.

You may have heard of that. But that standard, which protects political advocacy, isn't even enunciated until 1919. It's easy to forget that level of protection has only been with us for the last century. So we shouldn't allow our mythology of the Constitution to blind us to the non-magical drama of different groups organizing and fighting for their interests and rights through the courts. When we believe too much in that magic scroll idea of the Constitution, we become the villagers in that faraway land, accepting that what the robed priests say is,

is what should be. But if instead we look at the Constitution and the law as a historical process, we can ask questions like, how did it get to be what it is? My guest today is Adam Winkler. He's a law professor at UCLA, and his books include Gunfight, The Battle Over the Right to Bear Arms in America, and more recently, We the Corporations, How American Businesses Won the Civil Rights. The way that he thinks about the Constitution will change the way that you think about it, dare I say forever, at least for the next six months, I would wager. With all that being said, let's get to the interview. Adam Winkler from UCLA, thank you so much for being here. Thanks so much for

having me. It's such a pleasure to be here with you. You've spent your professional career writing about the Constitution, writing about these issues. I guess my first question for you is, about these issues. I guess my first question for you is, what is the Constitution? How do you describe it in a way, if someone came from, you know, an alien came down from space and said, how do you guys do the laws here? You know, what is this? What is this thing? Well, the Constitution is our founding document. And as our founding document, it establishes the federal government and the relationship between the branches of the federal government and between the federal government and the states. As well, most famously perhaps, the Constitution establishes a set of individual rights, rights that you can claim to prevent the government from doing certain things, such as a right of freedom of speech that restricts the government from being able to censor you. I feel very bad for asking you to do this.

I don't mind. It's a way to – Constitutional law prevents that. I think this is the first time I've to censor you. I feel very bad for asking you to do this. I don't mind. It's a way to. Constitutional law professor. Think this is the first time I've had to do that? Well, so what I wanted you to talk about is so often our understanding of what our conversations about our rights in this country are based on what the founders intended, right? And so, for instance, our conversation about the Second Amendment is so specifically, here's what the founders did or did not intend. They did want you to have a Glock.

They didn't want you to have an AR-15 or whatever. And what you write about, what you came on to our episode of Adam Ruins Everything to help us walk through is how – actually do know that they weren't thinking of that individual right to self-defense and that there has really been a movement in this country that has enlarged that right. And that the history of how that happened, we really, really rarely tell how that movement works. Can you enlighten us? Well, yeah, no. I mean, the framers were really focused on militias. It's written right into the Second Amendment. And if you look at the founding era discussions about the right to bear arms, they talked about the right to bear arms primarily within the framework of the militia. In part, that's a function of the firearm technology at the time. Firearms were not very useful for self-defense at the time. You couldn't

store a loaded firearm in your home, for instance. The gunpowder was too explosive. So it would take you about a minute to load your firearm. So if you had a criminal climbing through your window, the firearm wasn't what you would use to protect yourself or your family. So that's not how we thought about firearms, but they were effective for malicious service. And as firearm technology changed and firearms became more useful for individual self-defense, people started to reconceptualize the right to bear arms as about people's ability to have guns to protect themselves and to defend themselves against criminals, which was very far from what the founders were thinking about. And so how did that happen? How did we move from

a culture where nobody really believed that the Second Amendment was about that individual right to one where, well, now a majority of Supreme Court justices do, and now for all intents and purposes, that is what the Constitution now says, because the Supreme Court has said that's what it says. Well, I think it's the real product of a social movement to advance the cause of gun rights. And it's been a slow, steady growth. I mean, like I say, part of it's the technology of guns changed. And so, but for most of American history, the courts said that the Second Amendment did not protect a right to bear arms or protected a right that was somehow associated with the militia service only and didn't have much to say about ordinary gun control.

And that really changed in 2008 with a 5-4 decision of the Supreme Court that said the Second Amendment did protect a right to keep and bear arms for individuals and to have guns in their home for personal protection. And indeed, the Supreme Court said the core of the Second Amendment was personal protection against criminals or in the case of confrontation. Again, not what the founders were thinking about when they wrote the Second Amendment. about that is that what you're describing there is a civil rights movement of a kind that's similar to, you know, in function to some of the other civil rights movements we had, where a group says, no, we want to expand our rights. But that's not the language that the gun rights movement uses. They say, no, this is a right that was granted to us by James Madison, et cetera. And we are simply protecting it. They don't describe it in terms of enlarging, but in terms of protecting. That's right, but they're enlarging and changing and growing with the technology. So even today, there's a big movement to say that permitless concealed carry

is constitutionally protected, that you have a right to carry a gun without a permit. We've had required permits for 100 years in America, but this is definitely not part of the Second Amendment as under any court's understanding of the Second Amendment. But that's how some people view the Second Amendment, and they're fighting for that view. There's a social movement to change how we think about the Second Amendment. That doesn't make it illegitimate. That makes the Second Amendment movement very similar to the civil rights movement, to the women's rights movement, to the LGBT rights movement. Social movements that put pressure on the Constitution to protect their rights.

Well, so let's back up for a second and talk about the Constitution specifically. Because we have this sort of folk notion of it as, you know, the founding fathers wrote this perfect document, right? And we just need to follow the rules that they set down. And if we disagree about what they meant, you know, well, there's a right, there's a right or wrong answer about that. And we just need to follow what that is. And that that should sort of like determine the trajectory of our, I don't know, legal life in America. But then, the more that I learn about it, uh, and the more I learn about like where these rights actually come from, the more I realized like, oh, the story is much more complicated than that.

And our sort of folk understanding of it is, is way off base. Like, what do you think people misunderstand? What is the fundamental misunderstanding that we have? Well, our constitution is unique in many ways. Our constitutional culture is unique. Unlike other cultures, we really do revere our constitution and use it as a point of argument in political debate and no matter what the issue is. That's not true of other countries. No, it really isn't. It's very, very rare. There are legal systems, and in Britain,

they have a constitution in some ways, but it's just not used in quite the same way. They don't revere it in the same way. They're not going, I mean, I've heard of the Magna Carta is British, right? But they're not going like the Magna Carta says we must do X, Y, Z, right? It's just sort of like, oh, this is a thing that happened. Right. And it was in old English. So no one could understand what the Magna Carta really is. Like you'd say that with like the yada. Yeah. But no, but I think that, but so we really revere the constitution. It becomes that central point. But no, but I think that, but so we really revere the Constitution. It becomes that central point. But the reason why the Constitution can play that role in America is because it's filled with broad, ambiguous, vague terms like due process of law, freedom of speech, equal protection of the laws.

Things that are hard to define and to pin down. And so they become, they're capacious enough to hold so many of the disputes we have, whether it's same-sex marriage or women's rights to choose or religious liberty to refuse to bake a cake for a same-sex couple, Obamacare, environmental regulation, almost anything can fit in some way, shape, or form under one of the many very, very broad principles established in our Constitution. And the reason why the Constitution, those broad principles really continue to work is because we don't have an originalist system. You know, there are those like Justice Scalia, who was famous for saying the only proper way of understanding the Constitution

is in light of the original understanding of those terms at the time it was adopted and written. And whatever you could say about whether that's the best way to think about the Constitution, it's actually not a very accurate way of understanding constitutional history. And constitutional history is one in which these principles in the Constitution have evolved, have developed, have had a life of their own, reshaped by generations of Americans year after year after year. And the Constitution we have has been amended a lot in really fundamental ways that change what the framers did back in 1789 to 1791.

So whether or not that originalist perspective, because we hear about that so much, and I think, I mean, maybe we're, we don't quite have a majority of originalist justices yet, but we certainly have a number of them at this point, right? I mean, or whether or not they call themselves that, that seems to be a much more dominant philosophy than it was. But regardless of that, that's not the history of how the document's been understood in America is what you're saying. No, that's absolutely right.

It's not a history. I mean, if we take a case like Brown versus Board of Education that said that racial segregation in schools was unconstitutional, right? Maybe the most important decision in Supreme Court history, a landmark case that brought down Jim Crow and did so much to advance the cause of civil rights. You know, the court opens up that opinion by saying, well, we can't decide this by looking at the history of racial segregation back when the 14th Amendment to the Constitution was adopted, that would not be the way to understand the answer to that question. And I think we have a very complicated relationship. I think normatively, in terms of what we think the

world should be, a lot of people think originalism is a pretty good argument. But when it comes down to actual outcomes, they might balk. So, you take a case like same-sex marriage. There's no real plausible argument that the framers of the 14th Amendment intended it to protect or understood that it would protect same-sex couples in getting married. But today, we understand that those basic principles of equality and due process can't be met if same-sex couples can't get married. So, to keep up with the value of the Constitution, you have to apply it to new circumstances. That's how you keep the Constitution alive. But isn't it odd that we have a system where our conversation about whether we should allow same-sex marriages or whether the state should, you know, validate same-sex marriages has to be had via the Constitution? Like, if we can say,

okay, yeah, of course, Thomas Jefferson and James Madison and all of them had no opinion on same-sex marriage, or if they did, they certainly didn't put it in the Constitution, right? But so why is it a good thing that our national decision to allow such marriages had to be done via interpretation of the Constitution? Isn't that odd? Like since it had nothing to say on the matter, shouldn't we go about it a different way? Well, I think there are, you know, there are very good arguments that we should go about it a different way. And a lot of people think, well, we should just have the, we the people make these decisions through the democratically elected process. Right. I think there's one advantage. We have a very, very divided nation. And because of federalism

with the state powers that we have and states' rights, those divisions are baked in and they're really, really hard to change because we Californians, we have a lot of people in the country, but we can't change what's going on in Alabama very easily. And so one of the ways in which you get that kind of uniformity is when the Supreme Court comes in and provides that authoritative interpretation of the constitution. I fear to say, and it's just a counterfactual hypothesis, that if the Supreme Court had never declared racial segregation in schools unconstitutional, we might still have some racially segregated schools in America. Well, we do. I have to say- I think that's very possible. I have to say to that, I mean, we've done segments on my show and on other podcasts I've done that we do effectively still have segregated schools. And then officially segregated.

Yes. Like by law they're segregated. Legally segregated as opposed to. Practically speaking, you're right. I mean, the story of Brown versus Board of Education is actually a very complicated story about whether it was successful or not because schools really have re-segregated in so many ways.

Well, let's, let's go back to that thing of originalism just for a second, because that really seems to, that sort of philosophy that, hey, we should honor the founder's intentions and that the Constitution is ultimately an authoritative document. It seems that even those of us who maybe don't agree with Scalia on a lot of points, still accept that philosophy in a deep way without even realizing it. I was really struck by, I read a quote from Thurgood Marshall, Justice Thurgood Marshall, who wrote that the Constitution was defective from the start, that in his view, if you're looking at it from his view, it's a document that,

you know, ratified slavery in many ways that didn't, you know, include full civic participation for a huge portion of the population. And that, frankly, we added all of the features of the civil society that we, you know, hold as fundamental today, I think where it was his words, ourselves, right, through new Supreme Court rulings, through legislation, through, you know, civic uprisings to demand change. And that, therefore, you know, when we look, if you're looking from his vantage point, I mean, you know, Thurgood Marshall had, you know, this is a man who, you know, was defending, you know, people against lynchings and, you know, that history of the civil rights movement. From his vantage point in history, he was looking back at the original document and saying, hey, this document wasn't that great. Like it was a good start, but we had a lot of work to do and we still do. And that really struck me as such a fringe opinion today in a way, or you very rarely hear that opinion voiced.

I thought that was so interesting. Right. And it is so interesting too. And it captures kind of an interesting sort of other side of sort of the Hamilton phenomenon, right? Because part of that Hamilton phenomenon has been about the idea that even minorities can revere the framers, that they can be part of that story. They can see themselves as part of that story and be participants in it in some ways. I think that's with Hamilton's multiracial cast and use of hip hop and different techniques. And clearly the appeal has been to really broaden interest in the framers. But some have criticized it as being sort of very much about revering the framers again and not telling the story of racial minorities at the

time with any kind of vehemence in terms of slavery and whatnot. And Marshall is a good reminder. Marshall had such a complicated relationship with the Constitution. His greatest success was in using the words of the Constitution to fight against segregation and to use the Supreme Court to end Jim Crow laws. It's one of the great successes we've ever seen in American history. And yet he understood how deeply flawed the document really was. And that's the kind of complexity and nuance that we just don't see much today. Yeah. But something that really strikes me though is, okay, so if you're Thurgood Marshall and you're ruling on civil rights cases, it sounds to me like almost what you're saying is that the Constitution, the you know, strike down school segregation, because that that seems to be contrary to the spirit of the document into this phrase, rather than the intentions or

like the very legalistic reading, right. And that's, that's the reason we should we should expand those rights. But then you've got another group of folks saying, No, no, we should we should look at the founders intention' intentions very specifically. The contrast that's really striking to me is that for an issue like gun rights, for instance, which is so often phrased as the founding fathers intended this or that, the history of the Second Amendment is also one of expanding rights through Supreme Court cases. But the way that the folks doing the expanding talk about it is so much rooted in originalism rather than in an expansion of the document. Yeah, no, I think that's a very, it's an astute observation that those who are the most vehement Second Amendment advocates use the language of originalism and the founders' intentions behind the Second Amendment to promote a view of the Second Amendment that's very different from the one that the founders had.

The founders were primarily concerned with militias, and they believed that the right of the people to keep and bear arms was important primarily so that people could serve in state militias. And they were fearful that the federal government would use its power as granted under Article 1 of the Constitution to call forth the militias of the states. And some people fear that they would disarm those state militias and be tyrannical. And so the right to bear arms was focused on the militia at the time of the founding. That doesn't mean it's not an individual right. It's just the way they understood the right to be important was because of service in the militia. You had an individual right to have a firearm so you could be in a militia? Yeah.

But, you know, it seems crazy to you now because your militia is such a far part. It's so far removed from our experience. But in the founding era, remember, they didn't have police. They didn't have a standing army. They were constantly threatened from foreign countries, hostile natives. People had to call forth the militia, part of your militia. If you were a young man of your young strapping age, Adam, not my old age, you'd be a member of the militia and you'd be called out on a regular basis. I would be the worst militia member.

I would be way in the back dragging my feet. I don't know. I don't want to shoot anybody. That's okay. The guns then were so highly inaccurate. One of the things, and that's the thing. I mean, the firearms of the time were useful for some purposes, but not very useful for personal defense against a criminal in your home. But you couldn't store a firearm at the time loaded because it was just too dangerous.

The gunpowder was too explosive. It would just go off. And it would take you about a minute to load your firearm. And if you were an expert, you could get it done a little bit quicker. But it would take you a little time to load it. Honey, what's that sound? I hear a cat burglar. Okay, give me about five minutes to go get the powder and load it and put the wadding in and the thing.

Okay, and then you go down. By then, you've already been robbed. The guy's gone. Yeah, yeah. With your wife. No, exactly. So they didn't understand firearms in quite that way. And that wasn't really until the 1820s and 1830s when you developed the handgun was further developed and Samuel Colt developed his repeating handgun that you really saw the spread of a firearm that was useful for personal defense.

Right. The handgun wasn't even invented. There was a handgun. Yeah, there were handgun defense. Right. The handgun wasn't even invented. I mean, there was a handgun. Yeah, there were handguns. Okay. But they had to be loaded in the same way that you'd load other guns and, you know, through the barrel. And it wasn't what, you know, Samuel Colt was the one who was famous for. He wasn't quite the inventor, more the popularizer, but of the firearm that really you could carry,

you could keep loaded, and you could use it for personal defense. And so our conception of firearms changes as the technology of firearms changes. And the militias run – go by the wayside. They're not part of our lives anymore. So of course we don't think about the militias anymore because they're not part of our lives. And so our understanding of the Second Amendment is primarily about protection of self-defense against a criminal. It's just not the way the framers understood it. So sometimes you hear that comparison to the constitutional

provision about not having troops quartered in your home as being, you know, this is a similarly old-fashioned concern. Do you agree with that? Yeah, I think the framers' concern was an old-fashioned concern these days. It's not the present concern. I think now people really are much more concerned about defending themselves against criminals and having that fundamental right. And I could see, you know, look, there's certainly a plausible argument that, look, we have a society in which there's a lot of firearms. If you don't give people the right to have a firearm for self-defense, then they really do put themselves at the risk of victimization at the hands of criminals and whatnot. And what your liberty and your property and your home and your family, I mean, those are important values. And they're the kinds of things that wouldn't be far-fetched for a constitution to protect.

And so it's not a far-fetched understanding of the constitution, but I think it really – it's really just a function of how we the people have changed and our views views of, of the, the right has changed and the purpose of guns have changed and, and they're still changing. Today, we see a very vibrant move to say that the second amendment protects a right to carry a gun in public without a permit. That's not grounded in American history at all, where we've always required, uh, the last hundred years, we've always required permits. You didn't require permits back in the founding era, but, uh, that was a totally different era, right? Yeah. Different concerns about the nature of firearms. So, and soon, you know, that might be part of the Constitution, you know?

So that, oh, that's interesting. You say it might be part of the Constitution because the Supreme Court might rule to essentially say that it is. Yeah, because, you know, the Constitution is really reshaped by social movements. So, the civil rights movement reshaped the Constitution away from a document that supported Jim Crow to a document that didn't support Jim Crow. The women's rights movement has also changed the Constitution in various ways. The gay rights movement has changed the Constitution too. But it's not just liberal progressive movements, right? There have been conservative movements. We're been conservative movements.

We're seeing movements today very vibrant for religious conservatives, and they're getting their rights protected by the Supreme Court in cases like the Hobby Lobby case where the court said that a corporation with religious owners could be exempt from Obamacare requirements to cover birth control for employee health plans. Religious liberty rights for bakers who don't want to provide same-sex couples with a wedding cake. These are examples of social movements that are putting pressures on the Supreme Court through the presidency and through who gets picked as personnel, and they change the law. And what's so striking to me is that when you describe it that way, it makes me realize, oh, these are broadly conceived. These are civil rights movements.

These are movements of people arguing for a certain conception of civil rights that they want to be expanded, and they want to do it through the courts and the Supreme Courts. But we never think of them that way, and they don't even frame themselves that way because we think of a civil rights movement as being, oh, that's a movement that's asking for an expansion of a right. But then there are these, you know, with the Second Amendment in particular, they frame it as, no, we want to protect a right that we have always had the whole time and sort of present a revisionist history of, no, no, this is the way things have always been. I mean, you know, the NRAs, for instance, materials explicitly give that framing. Like they could frame themselves like the ACLU does or like the NAACP does and say, no, no, no, we want to expand rights for gun owners because this is so important.

And we think that that, you know, is the spirit of America, if not the founder's original intention. But instead they say, no, no, here's a quote from such and such founding father that we have taken out of context to say, no, no, this is – he always intended that you should be able to carry an Uzi around in your trench coat. And why do you think that that is? I think because they can make a plausible claim and they can tell a plausible story. And I think there were – if know, if same-sex marriage advocates could find something in the original history of the 14th Amendment about someone talking about gay rights and about same-sex marriage and being pro, they would go back and

say, hey, look, we can, there's actually original intent that this was designed to protect us. So you find that to be a credible claim? Well, no, I mean, it's, I don't want to say that it's a credible claim. I think that there's a lot of misuse of history by the NRA for sure. And I document that a lot in my book, Gunfight. But I do think that you've asked me why they make those originalist arguments. And I think it's because they can, because there is it is a text that is written into the Constitution, that there are founding quotes from the founding fathers talking about the importance of the right to keep and bear arms that can be taken and used out of context,

whereas you just don't have them for abortion rights. You don't have them for same-sex marriage rights. You don't have them for protection of the environment. And so, it's harder for many of the progressive civil rights movements to use originalist arguments because they're not using anything that can be misused. There's nothing that can be easily misused from the founding eras. But, you know, look, I think so right now we're seeing litigation over the emoluments clause. So these are clauses of the Constitution that restrict the president from being able to take pay in addition to his salary. And there's some issues with Donald Trump. takes pay in addition to his salary. And there's some issues with Donald Trump.

And what you see, actually, if you look at that litigation is a bunch of people who are trying to hold Trump accountable are using originalist evidence about the meaning of the emoluments clause. Why? It's not because they're all devoted originalists. It's because there is a plausible argument that they've got some evidence they can use. And so you add it to the series of arguments you make. It's a powerful kind of argument to say, hey, we've always had this. Don't take this away from me. We're persuaded by that kind of argument. So you do it if you've got something you can use. And fundamentally, that's what a lawyer does. A lawyer looks for an argument that they can make that people will find plausible that they can advance and hopefully wins. Yeah, that's right. And lawyers and frankly, we all kind of do that, right? That's what people

do. And, you know, I think the gun rights movement keeps talking about originalism because it's kind of worked for them so far. And if it weren't working for them, then they talk about a different argument. But what that puts into perspective is that all of these changes are things that Americans are doing today in real time. Americans are advancing these legal arguments, right? And about some of them, again, about the Second Amendment, we root it so firmly in the past, right, that we don't get to have that conversation about, you know, the effects of the change that is being proposed, or the reasons behind the change that is being proposed, or the methods that are being used, right? Instead, we get stuck in this conversation about like what James Madison thought about firearms, which is, that was what a big part

of that episode of Adam Ruins Everything was about, was trying to sort of dispel that, you know, that bit of the conversation and, you know, as best as we could do in seven minutes, say, hey, here was the actual history of it so that we could talk about the actual present day conversation we need to have. And that's something that I think one of the attractions of making these history based arguments are for the NRA, because if you can say, look, this is a right and it's protected, we don't have to analyze the public policy questions.

We don't have to ask how many people's lives are lost or would be saved by a particular gun control law because, hey, it's all unconstitutional. We have this right. We've always had this right. So we don't want to talk about the public policy. It's easier to talk about history than to talk about what we can do to reduce gun violence, especially when your whole theory is, well, a good guy with a gun is better than the only way to stop a bad guy with a gun, which is not a real great policy for gun violence prevention as a general matter. So that definitely does distract us.

When we talk too much about history, we're not talking about some of the issues that really matter, which is what is the effect on people and how is our society going to continue to move forward. But we should understand the Constitution as a function of democracy, and the Second Amendment is a really good example. The Second Amendment, you know, has a law as an individual right to bear arms, has a lot of support in America. Yeah. Among those who do support it, they support it intensely with great passion and devotion. And that makes a big difference in a democracy.

Yeah. I mean, that's what talking to you makes clear to me. Because again, I get stuck in the terms of that debate too, thinking about, wait, no, the founding fathers didn't intend this or that, you know, we have to update our laws, yada, yada, yada. Right. But if you look at, look, the, the power of the civil rights movement that we normally talk about the, the, uh, you know, uh, the movement to enlarge African-American rights in America because of the power of that movement. You know, if you're alive during that time, you're looking around and you're like, Oh, holy shit. There's a lot of people who really care about this and their fellow citizens. And like, fundamentally they're not ignorable. Right. Um, and we tend not to remember that about the

second amendment conversation that, um, that was one of the things that struck me when we were researching that episode was, you know, okay, we can talk all we want about James Madison, but, oh, hold on a second. There's millions of Americans who feel very strongly about it and have waged a legal battle over decades to enlarge their rights. And that is similar in function to the way it worked as to some of these other battles. And that means I have to grapple with it in a different way if I disagree. Right. Well, I think one of the things it means is that you have to think about organizing politically. I think that, look, the NRA is strong not because of the Second Amendment. The Supreme Court has read the Second Amendment very narrowly. It says it is an individual right to bear arms,

the court said in 2008, but said it only protected your right to have a handgun in the home and left most of the questions open. And courts have upheld a wide variety of gun violence prevention laws from restrictions on military style rifles and high capacity magazines and universal background checks and all sorts of different laws, red flag laws. The courts reading the Second Amendment haven't been the main barrier to gun control in America. The main barrier has been the NRA and the gun lobby working with pro-gun voters who are really passionate about this issue to get protections in the law through legislation, through elected officials. And that's much more powerful and they haven't had to rely on sort of a legal interpretation of the Second Amendment. That's

why I think when people like Justice Stevens, retired Justice Stevens came out and said that we need to repeal the Second Amendment, I think that's the wrong attitude, even if you want more gun violence prevention laws, because the courts aren't the ones standing in the way of good gun laws. It's the NRA and elected officials who were beholden to the NRA and the voters, the pro-gun voters out there. Yeah. And they use, it's interesting because they'll use the Second Amendment as their argument for doing that. We need to pass these laws because the Second Amendment says X, Y, Z, but that's not the actual means that they're using. They're passing legislation or they're preventing legislation from being passed. So whether or not we were to repeal the Second

Amendment, like the work that if you're someone who wants more gun control needs to be done on the ground is in state legislatures and is in the court of public opinion. Yeah. And if you don't want the Supreme Court to be interpreting the Second Amendment broadly to strike down things like assault weapons and bans on assault weapons or bans on high capacity magazines, you really need to fight for elected officials who are going to promote those kinds of laws, fight for a president who's going to appoint a justice who thinks about the Second Amendment in less expansive NRA-friendly terms. And that's how you're going to get that change if, you know, the political process represents

itself in a lot of different ways. And the NRA is now winning in the courts, and there's a Supreme Court has just recently taken a big Second Amendment case that it's going to hear in the courts. And there's a Supreme Court has just recently taken a big Second Amendment case that it's going to hear in the fall. And it could mean new barriers to gun control nationwide. And that's a result, that case, though, is a result of the NRA's political activism. It's a result of the NRA being a big Donald Trump backer and Donald Trump winning that election and then winning all these Senate races with pro-gun candidates so that when Brett Kavanaugh comes up for nomination, he goes right through and they know exactly they're getting a big, strong pro-gun vote on the Supreme Court. So that's how the political process works, and constitutional law is just one product of the politics of America. That's so much more of an expansive view of how we interact with the Constitution as a nation. That what you just laid out really shows how the sort of day-to-day politics of the country matter for what we end up deciding the Constitution means, right? But again, our sort of national mythology is that, no, no, no, the founders wrote it.

The Supreme Court tells us what they wrote, and that's it, done deal, right? Is there something – and you've said that that's different from other nations. Is there something in the American character or the American spirit, in your view, that causes us to think of the Constitution in that way, in that fixed way of, hey, it's the Ten Commandments that was given to Moses on the mountain, and we just need to obey it and understand it? Well, you know, I come at these things kind of from a historian's lens. And I think these things are just very historically contingent. I think a big part of the story in America is that in early

America, there were massive battles over slavery and the Southern states had protections built into the text of the constitution to protect slavery. And because slavery became such a huge issue, it became a valid and easy strategic defense for the South to say, hey, no, we have this constitutional protection. We have this constitutional protection. So, I think it's just a function of, well, it was the nature of that particular battle that arose at that particular time. Had we not had battles over slavery in the early 1800s, well, it was the nature of that particular battle that arose at that particular time. Had we not had battles over slavery in the early 1800s, maybe we wouldn't be a society that reveres the Constitution nearly as much. Yeah, and then we changed the Constitution after the Civil War.

And, you know, we've constantly built up a constitutional reverie by changing it time after time after time. And we still do it. We still seek our change. It seems like the right of same-sex marriage is not really complete until the Supreme Court says, ah, yes, you have that right. So it's become part of our nature and our culture, but I don't think there's anything necessary about it. It's just a historical accident. That's so fascinating. Well, that's a really good note to take a break on. We'll be right back. You know, if you're listening to this show, I think it's a fair bet that you like using your brain. And I'd even go so far as to wager that there's a kid in your life who also loves using

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Thanks so much for having me. What a pleasure. So you've written two really, I think, sort of mind-changing books about America's legal history, Gun Fight About Guns. You have a new book, We the Corporations, about the battle that corporations have waged to increase their own rights through American history. And this is a conversation that we are kind of having nationally, but in a very, I think, kind of narrow way where it's mostly just, hey, Mitt Romney said corporations are people. And then occasionally, like, someone will play that clip and get mad about it. No, they're not, you know, or whatever. It's like, and that's about it. But you have a much more sort of nuanced account of that history, which I find really fascinating. Can you? Yeah, well, you know,

for all the debate over whether corporations are people, that's really stimulated by the Citizens United decision by the Supreme Court. 2010, the court held that business corporations have the same right under the First Amendment of free speech to spend their money on election ads. And, you know, people are really validly concerned about this is going to lead to a big corporate takeover of American democracy, as if they didn't take over democracy a long time ago. But – and in recent years, the Supreme Court has held that corporations have religious liberty rights. For instance, in the case of a baker who refused to bake a cake for a same-sex couple, the court said that – Hobby Lobby as well. In the Hobby Lobby case as well.

And so we have a series of these cases, and I decided to look into the history. of these cases, and I decided to look into the history. And what I found was really remarkable, which is that corporations today have nearly all the same rights under the Constitution as you and me. And even though the Constitution wasn't written to protect business corporations, they have fought for over 200 years to win all the same rights as people under the Constitution. And, you know, they don't march in the streets the way the civil rights movement did or the way the women's rights movement did, but they have fought in the Supreme Court, a very, very successful campaign to win the protections of so many of our individual rights. And they use those protections to fight back against laws regulating business and regulating the economy. Yeah. And what you write in your book is that the idea that corporations are people

is a little bit of a red herring because at times they'll argue, oh no, corporations are people, corporate personhood, which does sort of have a legal basis. But then other times they'll say, no, no, no, we're not people because that actually benefits us in this case to not be treated as people.

Is that the case? That's right. People misunderstand the corporate personhood idea. It's actually very essential to basic business law. It's the same idea that says shareholders have limited liability because they don't have the same liability as their corporation. Corporate personhood means that a corporation has its own independent identity in the eyes of the law and it stands with its own rights and its own duties. So if you slip and fall at Starbucks, you have to sue Starbucks, the corporation. You can't sue Howard Schultz.

You have to sue the company because it's a separate legal person with its own legal responsibilities to keep you safe. And so corporate personhood is really well established in the law. I think what people are really reacting to is the idea that corporations have the same fundamental rights as you and me,

especially when it comes to things like political freedom and spending their money. And I think that's really what people get upset about. And what I really show in my book is that there's a lot to be upset about, that the corporations have been winning the rights of individuals for a long, long time, And in many ways have been much more successful at winning rights than African-Americans or women. It's almost a parallel kind of quiet civil rights movement for corporations specifically. That's right. I mean, it's, we don't, they don't march in the street corporations, you know, you don't see the Michelin man with a sign saying corporations are people too, you know.

corporations are people too, you know. But they have financed high risky litigation to win the basic protections of the Constitution. From the early days, they were trying to fight against taxes. And when you use provisions of the Constitution to fight back against taxes, the railroads use the Constitution to fight back against regulation of them. When Teddy Roosevelt tried to break up the tobacco trust, the tobacco companies tried to use the Constitution to protect them from his investigations. So corporations have used the Constitution aggressively over the years to fight back against regulation and populists who want to regulate corporations. Often I wonder, how should I even think of what a corporation is, you know, as a legal entity or a social entity, you know, because there's a certain extent to which it's like, well, a corporation is just a group of people, you know, it's not a, it's not a, it's not some monster from space,

right? We talk about that, you know, too much corporate influence on our democracy and et cetera. But at the same time, we're like, well, hold on a second. Corporations are just groups of people who have associated for a particular purpose in the same way that a labor union is a collection of workers own, right? That they start to, they outlive any one group of people and start to take on their own agency in this strange way. That's right. I mean, the idea of the corporation goes back a long, long way. And surprisingly, it's really intimately tied to the idea of a corporation having rights. So, the first corporations were formed in ancient Rome, 300 years before the birth of Christ. And Romans developed the corporation to solve a basic problem. They had partnerships,

but the partnership, every time a partner would die or wanted to sell their shares of the partnership, the whole partnership had to be reorganized. All the deals had to be renegotiated and everything. And so, they wanted to create some kind of form where people could pool their money together, invest it as a common resource, and it would go and do something. And if someone died, you didn't have to reorganize the whole thing. And so, the idea was you'd create this entity that could hold the property of all these other people and use it and invest it. And corporations were used by the Romans for all sorts of different things from mining and building aqueducts and things like that.

And in fact, corporations from the get-go were very, very successful. And they recently were doing a study of ice core samples from Antarctica, and they found these ice core samples from early before the birth of Christ. And they found evidence of widespread global pollution caused by Roman mining corporations operating 300 years before the birth of Christ. That's incredible. So these corporations were from the get-go endangering human health and changing the environment. Changing the climate.

Wow. That is wild. Did they – I mean it's one of the things I think is interesting about corporations. One of the things I think is interesting about corporations, they tend to outlast individual people and they start to get their own incentives and their own desires and their own wants and their own needs that, you know, IBM sort of operates the way that it does apart from who is running it and apart from what the shareholders want. It's like this entity that is going to survive, right? Yeah. And, you know, that's sort of – there's a couple ways to think about it. The corporation is immortal, right? Yeah. And, you know, that's sort of, there's a couple ways to think about it. The corporation is immortal, right? The corporation, because it survives, even if someone transfers out or dies, that gives it its immortality. Whereas a partnership only can

survive as long as the partners are still alive. Right. Once the partners die, the partnership dies too. But the corporation lives on. That's the beauty of the corporation in some ways, is that it can survive that kind of disruption within its membership. When I think about what that means, it almost reminds me the most of like almost the Catholic Church or something like that, that it's this entity. Well, and the Catholic Church was widely understood to be a kind of corporation. That is a person with its own independent identity in the eyes of the law that had the right of property. So it could hold the property of the church, regardless of the identity of the members of the church. It didn't matter who came in or who came out, didn't matter who was the Pope or who wasn't the Pope. No one thought that when someone became the Pope, that all of the property of the church was now

the personal property of the person who was the Pope. And that if he stopped becoming the Pope, he could take the property with him. Right. No, it would belong to the church. So that's the idea that the corporate entity had rights and rights of property. And that today, you know, in ancient England, there were a lot of different kinds of corporations for all different sorts of activities. Today, we think of corporations in business terms, in terms of a business corporation. But there's still a lot of different kinds of corporations. We talk about incorporated cities. We talk about often religious organizations or corporations,

and many nonprofits are corporations too, Planned Parenthood or the NRA. They're both corporations, not business corporations, but both have that idea of their independent identities in the eyes of the law that have the ability to own property and to file contracts and sue and be sued in courts. Right. But business corporations seem to, there seems to be something about business corporations that has caused them to be, A, incredibly successful and incredibly powerful. You know, for instance, the LA Public Library, right, has existed since, you know since the mid-19th century. It's, I assume, a corporation by this broad definition in some way.

And it has wants and needs, but its wants and needs are structured. I assume there's a charter somewhere that says what its goal is. And so it maximizes the services that it provides to the people of Los Angeles. A corporation is organized around maximizing, I suppose it's profit for its shareholders. Something about that structure seems to cause, what about it causes them to advocate for rights in this way? It's not really the corporate structure, because as you say, there's lots of other corporations that don't pursue pathological profits. It's actually baked into the business

corporate structure of America is that we, and not in terms of the structure of a corporation, but of a business corporation, we require corporations to pursue profit. That's a legal mandate. You know, it's one thing when we think about the freedom of corporations and whether corporations should have freedom of speech. You know, generally we think that someone might have a freedom of speech because they have autonomy. And that's a reflection of their autonomy, that they get to make these kinds of decisions for themselves. No one gets to tell you what to believe. You get to believe what you want. No one gets to tell you what to say. You can say what you want. There's a sense of autonomy. Business corporations are fundamentally not free in that way. They are legally required to pursue profit, that if the management of

corporations don't pursue profit in the long run, they're violating their fiduciary duties to shareholders. They can be sued for that. particular moment in American history in the 19-teens where Henry Ford was trying to use his Ford Motor Company to do more than pursue profit, to help out consumers, to help out workers. And he devised a business plan that didn't involve maximizing profit. And a court struck it down in large part because it wasn't designed to promote shareholder welfare. And that's a key turning point that changes the nature of our corporations in fundamental ways. And to this day, even if there's a little wiggle room in the corporate law, our corporate culture is that corporations, business corporations should maximize their profit. And that mirrors some of the corporations that I have loved in my past, right? You know, like there's certain, there's certain corporations that, you know, I'm like, oh, this, this corporation actually does a

lot of good, you know, for instance, I don't know, a, you know, a magazine that, you know, really prioritizes the quality of the, of the literary work that they publish as opposed to the, you know, the amount of money that they make, for example. Businesses like that, I've noticed this pattern where, well, they tend to falter a little bit and then they get bought out and then they're reconfigured to maximize profit. You're like, oh, this thing that I loved that maybe wasn't making that much money, but was, you know, kind of nice, right. Or was doing some good has now, you know, turned into this sort of rapacious organization or newspapers as another example of, you know, well, the local paper, you know, is going to get bought out

by, you know, trunk or whatever, and, you know, cut down so it makes as much money as possible. That's actually, you're saying a necessary part of what a corporation is legally almost. Well, I mean, it's at least the way we do it here in America, right? And there have been efforts to try to think about corporations in more capacious terms, to be serving the interests of stakeholders more generally. And even moments in American history where there was a real effort to regulate all business corporations. I tell the story in my book of a great case back in 1819, way back in early America, involving perhaps the greatest advocate in Supreme Court history, Daniel Webster, who was known to be a great orator. And he argued more than 200 cases in the Supreme Court history, Daniel Webster, who was known to be a great orator. And he argued more than 200 cases in the Supreme Court. And he argued a key case early in America where the court was really deciding, is a corporation a private entity, like an individual with rights? Or is it

more like a public agency, like a government agency that the Congress or the legislature can revamp and reform and can reshape the way it wants. And Webster argued for the latter, for thinking – or sorry, for the former, for thinking about a corporation like an individual, a private entity, not a public entity. And he won that case. And ever since then, corporations really have been thought of as private entities, not public entities. And that really, that divide between

public and private is part of the reason why it's so hard to this day to regulate corporations. So there was a point at which, yeah, now we think of corporations as being fundamentally private, but that's a good point. Sometimes I think you hear about historical corporations, I don't know, the East India Company or whatever. A lot of times they seem almost like quasi governmental in the way that they're discussed. And so there's a point at which we had that choice to maybe keep corporations as being somehow chartered or serving at the whim of the government. We had that choice, but we didn't take that route. Daniel Webster won his case. Yeah.

It was the Dartmouth College versus Woodward case, a classic case. And it's one of just a number of these cases that when you go back through American history, you find that the Supreme Court has been ruling on the rights of corporations for a long, long time. To put this in some perspective, Adam, the first Supreme Court case explicitly on whether African-Americans are protected by the Constitution was the Dred Scott case. It was decided in 1857, right before the Civil War. The first Supreme Court case explicitly on whether women were protected by the Constitution was decided in the 1870s. The first Supreme Court case on whether rights, whether corporations have rights under the Constitution was decided in 1809, a half century before women and minorities came. A couple decades after the founding of the nation. Right after the founding.

And whereas we think of the Supreme Court as a bulwark for the protection of minorities, like women and racial minorities, in truth, the court's rarely done a very good job of protecting the rights of minorities and women, at least before the mid-20th century. And both Dred Scott and the woman behind the first women's rights case in the Supreme Court, they both lost their cases. But the corporation behind the 1809 case was the richest and most powerful corporation in America at the time, and it won its case. And corporations have really been winning ever since. Have there not been any big losses? Oh, of course, they've lost plenty of cases. but part of the beauty of the Supreme Court and litigation process for corporations is the corporations can afford the best lawyers and they can afford

litigation. It's just the cost of doing business. And so even, you know, even a case that looks like it's not going to be a winner, you know, it's just another way of just seeing if you can maybe strike down this law and with big profits to boot. And if you lose, you lose. But it's not such a bad – it's just part of the cost of the business. If you're Standard Oil or Google, the cost of taking a case to the Supreme Court is, what, a couple lawyers and paralegals got to spend a couple years? That's not that much, do you? Right.

I mean, to just put it in today's numbers, that kind of litigation, you know, is going to cost you like three or four million dollars to take a case all the way through the system and up to the Supreme Court. But it's nothing to Google, but it's a lot to a civil rights organization. Right. And so when we look back through American history, corporations have had the benefit of having the resources to use the judicial process and have hired great lawyers, people like the Daniel Websters. John Quincy Adams argued for the rights of corporations. And today there's a huge elite Supreme Court bar that's just devoted to arguing before the Supreme Court. And guess who they represent in the vast majority of their cases? Big corporations. This is really stunning because essentially what you're

saying is that corporations have waged a massively successful civil rights movement under our noses that nobody even discusses. I think we would both agree, largely negative results unless you are one of the people personally profiting from that. I mean, these are not organizations that are out for the common good. They're out for specifically the very narrow monetary benefit of their shareholders and executives. That is definitely what has promoted this litigation, an effort to promote profit, to maximize profit for shareholders, and to fight against law and regulation. Some of it has been very ideological, an idea that we need a free market, and these laws

burden the free market in a way that's wrong for a capitalist free enterprise society. I will say the outcome, though, can be somewhat more ambiguous and nuanced. It's not always all bad news. You know, Citizens United, when you lead to a corporate takeover of American democracy, it's hard to get much worse than that, I guess. But the story is more complicated than that. complicated than that. In fact, one of the surprising things I found in my research is that in many instances, the key Supreme Court cases to breathe life into particular constitutional provisions were brought by business corporations. So, we think that maybe corporations would get rights after individuals have already won those rights. But in fact, in many cases,

there are constitutional provisions that really were lifeless until a Supreme Court case came along. And that case might have been brought by a business corporation. I'll give you an example. One right that we hold dear, and Adam, you should hold dear especially, freedom of the press. But the earliest and most important and influential freedom of the press cases were brought by newspaper corporations that were fighting back against censorship of the newspapers. And they were business corporations. And one of the issues raised in those cases, they were litigated in the 1930s, was are corporations entitled to make these First Amendment claims of freedom of the press?

But think about it. You wouldn't have much of a freedom of the press if the New York Times company, a media corporation, didn't have free press protections. So it can be more complicated than sort of all bad, all good. It's actually had some good consequences and had a bunch of bad consequences. But it's really an important way of understanding how the law has shifted and changed and developed. Yeah, and I suppose, similar to the conversation about guns, it seems perhaps that rather than arguing, hey, corporations should or shouldn't have free speech rights, that's the wrong conversation to be having.

We should be talking about, well, the specific rights that they're fighting for and that we're considering granting them, is it in our benefit for them to have? So I certainly would agree that a corporation should have a free speech in the sense of publishing material critical of the government right. But I would maybe argue against unfettered money flowing into our political system, being a form of speech that is beneficial for us to sanction on a completely unregulated scale. That's right. And I think your perspective on that, it mirrors my own and actually really has a lot of echoes in American history. For the last hundred years, we've recognized that corporations often need something like a freedom of the press right for the freedom of the press to be vibrant in checking the government and encouraging democratic deliberation and debate.

But yet we've long thought that we should restrict corporations from spending their money on elections. Tell the story in the book of the very first campaign finance laws, which were adopted in the first decade of the 20th century, 1907. And these laws were designed to restrict corporate money in elections. Campaign finance law was born of the idea of restricting corporate money in elections. And a hundred years ago, back in the prohibition, when in the run-up to prohibition, alcohol makers and brewers filed lawsuits challenging these campaign finance laws that were restricting corporate money in elections as a violation of the Constitution. And a hundred years before Citizens United. Back then, the court said corporations have no place in American politics and upheld the campaign finance laws. Today, in Citizens United, the Supreme Court rules the other way and says corporations belong in our political process.

And it seems as though that is still a dominant view in our legal profession and in our culture that corporations should have that much. It certainly feels that we live in a society in which corporate rights are given privilege over individual rights in many ways. Do you see any signs, though, of a pendulum swinging back or any movements that are gaining steam in any way? Well, there is a pretty vibrant movement to amend the Constitution, to add a 28th amendment that would prohibit corporations from claiming the protections of any rights under the constitution. That would be a massive change based on what you've said.

It would be a massive change. And it's really promoted by, you know, the idea of opposition to Citizens United and cases like Hobby Lobby and more importantly, Masterpiece Cake Shop, the wedding cake case. And this is supported by some very big groups like Public Citizen and Common Cause, Move to Amend and Free Speech for People and a bunch of these organizations, American Promise. And I think it's a well-meaning effort. I think there really is an effort to try to think about how we can reestablish some sense of balance in American politics and not have it be taken over by corporate and wealthy interests, the 1%. But I think it's going to be very difficult to amend the Constitution to eliminate corporate rights. And I think probably

the amendment itself goes a little too far in that it could be read to deny the New York Times the right to freedom of the press. And we don't want to get rid of all corporate rights, just the wrong ones. So what if we rethink the ways that we're organizing corporations? For instance, I know there's the idea of like a public benefit corporation that has a, in its charter, a responsibility to, you know, serve the public in XYZ in addition to making profit. That, could those sorts of changes be of benefit? Yeah, I think there is a lot of innovative thought now in the nature of the corporation and whether we, what's the nature of the corporation and whether we, what's the place of the corporation in politics and society. You see Elizabeth Warren has come

out with a proposal for co-determination requiring representation of workers and other stakeholders on boards of public companies. And again, the idea is to move away from the slavish devotion to shareholder profit. The difficulty is that there's some concerns that management would use the corporate resources to enrich and benefit themselves if freed up from the demands of shareholders. Because if shareholders don't like what they do, management can say, we're doing it for customers. If customers don't like what management does, management can say, we're doing it for shareholders. And then there's no way to hold management accountable. I would suggest in response to that that it doesn't seem management is all that accountable these days, flying in their private planes and taking these huge salaries. I'm not sure what we have to lose.

Got it. What do you think of the prospects for actually doing that reimagining? The reimagining – imagining is wonderful. Imagining a different world is great. But when corporations already have so much power, have so much rights, have the best lawyers, right, they have waged this incredibly successful civil rights campaign that dwarfs all the others in American history. Do we have a chance to make that reimagining come to light, come to fruition? No. Oh, my gosh. Come to light? Come to fruition? No.

Oh, my gosh. You know, I say that jokingly, but I do – one of the, I think, implications of the story I tell in We the Corporations is how difficult it is to defeat the corporations. That one thing corporations are really good at is taking progressive reforms that were designed for other stakeholders and using them for the tools of business and free enterprise. And we've seen that over and over again. And we think about something like corporate PACs. People hate corporate PACs. They spend their monies. But who invented the PAC? It was labor unions. And it was only like 30 years after labor unions started using them and the corporations decided to use them. They just decided to use them much more often and to greater effect. And so we see that kind of, so whenever we reform the law for progressive purposes, corporations always manage to use it in some way for their advantage. So I'm always, I may be a little skeptical of our ability to shut the corporations out from American politics.

And strangely enough, I think these days, Americans want corporations to be involved in at least some politics. We see demands for Dick's Sporting Goods to ban the sale of assault weapons in the wake of a mass shooting, or people want their brands to fight against transgender bathroom bills in this state or that state. Like, sometimes we want our businesses to be on our side, too, increasingly. So I think we have a complicated relationship with the corporation and politics. Yeah. I mean, well, now especially we tend to identify with corporations much more than we used to, you know, that I, for instance, have, you know, I've used Apple products for most of my life and I identify with that corporation on some level.

It's difficult for me not to. You're a Mac guy, they say. You're a Mac guy. Yeah, I'm a Mac guy. And very specifically, I grew up with Nintendo and I'm a Nintendo loyalist and I will be until I die. They inserted a loyalty to the company in my heart and my mind at a very young age. But hey, luckily, that's just a weird company that makes video games.

Apple, though, is much, much larger. And to a certain extent, it's reasonable to have a positive feeling about that. Because, hey, for instance, Apple is very, very active with LGBT rights. you can it's reasonable to have a positive feeling about about that because like hey um you know for instance uh apple is very very active with lgbt rights they're very progressive and proactive in that area um uh largely because i think their leadership has made it so um and that's something that people often look at and go oh could could corporations be sort of a vanguard a way for us to exert ourselves politically and expand those rights. But then the only rights that are never going to get protected by that are the ones that would

hurt the corporation's bottom line, you know? It's easy for Apple to fight against discrimination, but it's a lot harder for them to fight against, you know, reducing the amount of e-waste that we're being flooded with or, you know, reducing the amount of e-waste that we're being flooded with or, you know, reducing the amount of intellectual property control in our society, things like that? Corporations are designed to pursue profit. That's how we've designed them. And in part, because we think that's going to lead to greater growth and greater returns. And, but there are, you know, serious consequences to having that kind of society in which we have these sort of rapacious corporations going out there and doing their thing. We think that what might be great and beneficial for us today, it's only – the corporations might be active in politics, but they're always going to be pursuing profit at the end of the day.

And they'll fight for transgender rights when they think that's helpful for profit. They'll fight against the e-waste regulation because that hurts profit. And we shouldn't have any other expectation. Corporations can be useful tools in our political life if we want to use them in that way. But we shouldn't be fooled. Corporations may be people, but they're really pathological people. Well, in response to that, I'd like to return to the point that you made on our episode of Adam Ruins Everything about, I think you have a very optimistic point of view on the Constitution generally, that even though certain groups have had great success using the Constitution for their own ends, that does paint a picture of like our ability to change the structure of our society

via advocacy. And we might have a really uphill battle with corporations. But the fact that it's malleable in that way does give us some reason for hope at the end of the day, no? I think so. I think that, you know, it's probably often been a false hope for people of a progressive mindset and been better for people of a more conservative mindset. I think the Supreme Court is a relatively conservative institution by the nature of how we figure out who gets on it and how they get appointed and the nature of the law as a conservative kind of project. One where there's no greater authority in the law than precedent, right? That something's been decided, right? It's the ultimate kind of authority.

It's like the worst kind of parent. Well, it's because I decided it. So that's how the rule is. And the fundamental original distinction between conservative and liberal being conservative being that, well, things should stay the same. That's the old, old original meaning that certainly is more connected to, yeah, this is precedent. That's the way things were. Well, that's right. And so I think courts are conservative in that small C kind of way of thinking about it.

And so maybe the court is not necessarily the place for progressives to think they're going to get a lot of great outcomes. But look, you had a very important same-sex marriage ruling a couple years ago that was an important expansion of rights that we'll talk about for a century to come, I'm sure. And so the Supreme Court can still play that role on occasion. But the history of the Supreme Court is one that is mostly about helping big business and big corporations and only occasionally helping the dispossessed and the vulnerable. Okay. My mistake for asking you for an optimistic ending to the show, but I mean, that's the reality. And sometimes that's the way the world is. Thank you so much for being on the

show, Adam. It was really wonderful having you. Thanks so much for having me. I'm sure the sun's coming out tomorrow. Guaranteed. Hey, well, my thanks again to Adam Winkler for coming on the show. I hope you enjoyed that conversation as much as I did. I host fascinating conversations like this every single week, so I hope you'll give us a subscribe. And if you already are subscribed, I hope you'll rate the show on Apple Podcasts, Stitcher, or wherever else you get the podcast. You can follow me on Twitter at Adam Conover.

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