Colbert on Corporate Personhood

In the wake of the Citizens United case, that astute political analyst Stephen Colbert weighed in.  He gives a brief history of the idea of corporate personhood and imagines the implications. Corporations today are considered legal persons. This means that they enjoy the protections of the 14th amendment which implies that the bill of rights applies to “corporate” persons as well as “real” persons. But corporations are not persons. They are not alive. They are not even dead. They do not have natural life spans. They are not mortal creatures whose essential mortality induces reflection on the ultimate meaning of life and leads the wise to live out that brief existence with an eye to what matters most. A corporation never dies a natural death and therefore lacks the natural incentive to live a life that includes dying well. An immortal person is a god. By calling a corporation a person (whose charter is for perpetuity) have we created a strange new god? A new idol before which we prostrate ourselves? The corporation, rightly conceived, is to serve human beings. Corporate personhood has the effect of  blurring this goal and reversing the relationship.

What would it take to end the idea of corporate personhood? What would be the results?

41 comments on this post.
  1. Jonathan:

    “What would it take to end the idea of corporate personhood? What would be the results?”

    I highly recommend some of the discussions on Volokh and Mirror of Justice on this issue.

    With that said, here are some of the potential effects of ending corporate personhood which I can see:

    1. There would have to be an entirely new set of rules written or re-written to be able to sue a corporation in court. Whereas now, the courts use similar rules to suing an individual person, there would have to be entirely new rules written to deal with the problem of the people and institutions holding (say) 3.31 Billion shares of Ford Motors. If there are 500,000+ shareholders of Ford (many of which are corporations composed of shareholders themselves), who are the owners of Ford, would ALL of them have to be sued? Why not?

    2. Corporations might lose the right to contract, or to have their contracts enforced, or…which rights come from the federal and various state constitutions and law enacted based on that. In essence 1 U.S.C. 1, which states (inter alia) that “In determining the meaning of any Act of Congress, unless the context indicates otherwise….the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals” would be repealed. This would result in a hugely expensive and confusing re-write of the U.S. Code, as these strange entities floating around, no longer considered people, would have to be dealt with.

    3. Since every group under a corporate form is dealt with in this way, this would affect profits, nonprofits formed for advocacy, dioceses of the Catholic Church, small community organizations dedicated to improving local schools, and many other examples. They could be summarily stripped of any right to contract (which would cause economic chaos), any right to free speech (which would effectively end advocacy such as that set forth in Citizens United), and even any right to bring a case to court.

    These are a few examples of what could happen.

    –Jonathan

  2. D.W. Sabin:

    Mitchell, you hit upon it!
    Corporations are the “Un-Dead”.

    Now Smith can reiterate the “vampire squid” line.

    Today, in the Danbury News Times, front page, a photo of some kind of shiny thing that looks like it is from an amusement park and beneath the photo is the story with a headline something like this: “Chucky Cheese opening signals strengthening economy”

    This is what we are reduced to, an economic recovery based upon the opening of a franchise fast food emporium. That, and of course, reimbursing certain “groups of people” for dodgy CDO investments.

    Calling a Corporation a “person” is like calling the movers and shakers infesting Washington a “government”.

  3. Bruce Smith:

    OK. Time for Monty Python. All American citizens should have the right to see and inspect the brain of Goldman Sachs Corporation and compare it with the brains of the five court judges who made this ruling and if they appear to be the same then these judges are smarter than the 80% of the American electorate who disagreed with this ruling and Americans should give up on democracy and let Sarah Palin rule forever. Oh DW can be court-jester.

  4. John Médaille:

    Jonathan, since their founding in the Middle Ages, corporations are creatures of the state, having whatever rights they are granted in their charters. As for point 1, that’s the way corporations were sued for a long time, and the shareholders were personally liable for the corp’s debts. Point 2, they had whatever right to contract the charter granted. Point 3, is that wonderful and oft-heard defense, “If you try to get us, we’ll take the churches with us!” But this is an easily solved problem, simply by creating different kinds of charters with different rights. Not much of a problem.

  5. Jonathan:

    John,

    These changes would result in massive systemic changes, both in state and federal law. I believe that the resulting disorder would far outweigh any benefits conceivably obtained through such changes.

    Corporations as they exist now may have the same name as those presently, but corporations in the Middle Ages resembled more partnerships than a modern corporation of any size.

    –Jonathan

  6. Patrick J. Deneen:

    According to our Constitutional theory, corporations are persons but unborn children are not. That, in a nutshell, speaks volumes about America today.

  7. Mark T. Mitchell:

    Jonathan,
    You raise some important concerns. Here are a couple more questions: 1) Corporate personhood is relatively new. Corporations got along fine without it didn’t they? Sure, there would be some serious changes, but since there is precedence for a successful corporate world prior to the advent of corporate personhood, the changes wouldn’t be impossible, would they? 2) Is the notion of corporate personhood employed in other nations? If not, is the situation different where modern corporations do not enjoy the status of persons?

  8. Roger Bennett:

    Law school is several decades in my rear-view mirror now, and I could be mistaken. But while I agree wpart of ith Jonathan’s 6:23 comment (“massive systemic changes”), I disagree with his conclusion that it wouldn’t be worth it and with his 4:14 opener (brief parade of horribles).

    What’s called for, I think, is limited liability (shareholders can lose their investment – which would be an improvement in this “too big to fail” world – but no more) without a full panoply of constitutional rights analogous to those of humans. In other words, as creatures of the state, they have whatever rights they are granted in their charters, as John says, and have no equal protection right to one thing more.

  9. Jonathan:

    Mark,

    You mention:

    “Corporate personhood is relatively new. Corporations got along fine without it didn’t they?”

    I suppose it depends on what you mean by “relatively new.” Compared to the middle ages, you are correct. But, corporate personhood in one form or another has been in existence since 1844 or earlier. So, it is nearly as old as the United States itself. I suspect the objection you raise is not to “personhood,” as a doctrine, in and of itself, but is similar to what John raised, the extension of every right a human person has under the Constitution to corporations.

    “Is the notion of corporate personhood employed in other nations?”

    In the brief research I undertook, according to Wikipedia, “The European Convention on Human Rights extends fundamental human rights also to legal persons, which can file applications with the European Court of Human Rights in Strasbourg in case of a violation by one of the 47 signatory states,” “The basic rights shall also apply to domestic artificial persons to the extent that the nature of such rights permits” (Germany [which obviously needs expansion and definition to know the extent]), and I am sure there are other examples.

    I am sure there are as many different extents of rights for corporations as there are law codes.

    –Jonathan

  10. Bob Cheeks:

    Thank you, Jonathon, your remarks were singularly clarifying…corporations are indeed, “groups of people!”

  11. Katherine T:

    One interesting result of corporations longevity is that they can often win a controversial issue simply by outlasting the naysayers in a community. This often happens with Superfund sites. (Superfunds is EPA’s fund to clean up massive chemical spills/hazardous waste left, usually, by corporations.) The pattern goes like this: the results of hazardous waste become apparent in the community (birth defects, bad water, cancer rates), ppl complain, the EPA finds the responsible parties (this takes several years), and then the responsible parties do the legal shuffle. The responsible parties, if they are a corporation, can do the legal shuffle for 20-30 years; community interest doesn’t usually last this long. People get frustrated and just move.

    All this creates an interesting dilemma: if corporations are not legal persons, then there is essentially no one left to prosecute for a hazardous waste spill after the owner/leader of the business dies. And even before he dies, should the CEO really bear the full weight of the company’s actions? That hardly seems appropriate in every case. On the other hand, if corporations are legal persons, then they have the uncanny immortality that you were describing, Dr. Mitchell. It seems there must be a way to create proper incentive for these immortals, so that they work on behalf of the community rather than against it…. there are such corporations out there.

  12. Jonathan:

    Katherine,

    How can a corporation outlast the EPA?

    –Jonathan

  13. Mark T. Mitchell:

    Jonathan,
    Your question to Katherine raises another: is the EPA a person? Is the federal government as a whole a person? If yes to the first, yes seems to be in order to the second. But this would seem to create the odd circumstance of either split-persons or, perhaps better, multiple persons comprising the same entity: the person of the EPA is part of a larger person called the federal government? Where does one “person” begin and the other end? The expansion of the language of personhood appears to lead to nonsense

  14. Jonathan:

    Mark,

    “is the EPA a person? Is the federal government as a whole a person?”

    A good question. At lower levels, municipal corporations abound, of course (cities, towns, school corporations, etc).

    As for the federal government, I am sure some aspects of legal personhood apply (ability to be sued in courts, etc). 1 U.S.C. 1, referenced above, says only, “the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Without a reference to a clear statement, I would say that the EPA (and Federal government in general) are not legal people, in the pure sense of positive law defining them as such.

    The wikipedia article on this is fairly good, I think (http://en.wikipedia.org/wiki/Legal_person).

    But, I am also curious as to why you think my comment to Katherine implies, or intends to imply, an extension of some form of corporate personhood to a noncorporate entity like the EPA or federal government as a whole?

    –Jonathan

  15. Bruce Smith:

    If democracy is meant to be about sorting out conflicts of interest in society especially what levels of free-riding should be permitted so the economy is run as socially optimal as possible this presupposes two things; that each individual has a brain to think these things through and nobody should be judged more worthy than another to take decisions either in terms of ability, wealth or power. Nobody seems keen with regard to the first thing to answer my previously posted question as to whether a corporation has a brain or for that matter where it is located. A corporation strikes me as being an investment association where the CEO and other officers are servants of the company with conflict of interest issues due to asymmetrical information, etc., and, of course, in these days of automated computer investment in stocks the loyalty of most stock holders to a corporation is located in a computer program and dependent entirely upon profiting from the margins that can be achieved from frequent sale and purchase of stock. So where is the brain within a corporation that is going to decide to spend a great deal of money on political campaign advertisements? Presumably it will have to be decided by a majority vote in order to simulate the intent of one brain but will it be one vote per stock certificate, or one vote per stock-holder. Do the most certificates determine the brain or the majority interests of the stock holders irrespective of the size of holding? I mean if you have more money invested in the corporation than me are your interests more important? If I think a political campaign by the corporation will alienate customers will your greater stock holding be allowed to trump small stock holders like me? In effect should all stock holders votes be treated equally? How then do you actually determine in these circumstances what actually constitutes the brain of the corporation? Is there a legal ruling on this? And who will police this voting operation to see that it’s fairly conducted given that shareholders seem to have so little control over the behavior of the CEO and other officers of the corporation? Will there be endless Ultra Vires actions clogging up the courts if political campaign expenditure decisions are not seen to be above aboard?

    And can somebody explain to me how allowing corporations to vote isn’t the same as going back to the travesty of the good old days before universal political suffrage where you were only allowed to have a democratic say in electing your political representative if you owned property. If you are poor and can’t afford to buy stocks in a corporation then are you not automatically disenfranchised from having a say in matters just the same as you were when you couldn’t afford to own property? Isn’t the Supreme Court decision a push back to the Dark ages where some are judged more worthy than others to make decisions and what on Earth do those five judges actually think the phrase “all Men are created equal” actually meant in the Declaration of Independence? I assume they are also familiar with that other hallowed phrase of “being equal before the law” but it seriously makes you wonder if they understand it when polls that are akin to juries consistently have 80% of Americans opposed to their ruling. Best I think for Congress to seek to amend and clarify the constitution so that the Supreme Court is ring fenced from taking any future decisions on matters affecting democratic equality and it legislates to overturn this current ruling.

  16. EricK:

    I have not read the ruling in its entirety, but did the Court rule that corporations have all the rights of a person or is “corporate personhood” a phrase created by opponents of this ruling to describe what they see as the effects of the ruling?

    Why I ask is this: This case wasn’t about whether corporations are considered people under the law; that’s irrelevant. The case was about First Amendment free speech rights. The First Amendment says the government shall make no law abridging the freedom of speech. It doesn’t matter who is doing the speaking, the government shall not abridge it.

  17. Mark T. Mitchell:

    Jonathan,

    You wrote:
    “But, I am also curious as to why you think my comment to Katherine implies, or intends to imply, an extension of some form of corporate personhood to a noncorporate entity like the EPA or federal government as a whole?”

    Your argument didn’t imply my question. Instead, it suggested that my question needed to be asked. Here’s the way I was thinking: There are some (Cheeks a few comments back is an example) who argue that persons have rights, and corporations are groups of persons; therefore, corporations have rights. If that argument flies, then it seems that the EPA or the federal government as a whole are persons in the same way. But, of course, the EPA isn’t *merely* a group of persons. Neither is the federal government. But neither is a corporation.

    The corporation is a “legal person” and that status has been granted by the government. This derivation of rights is, of course, different than the rights that “real” persons naturally enjoy and that are recognized (not granted) by the government.

    This line of thinking leads me to ask why does the government grant the status of *legal person* to corporations? Which begs another question: what is the purpose of a corporation? There are plenty of groups of persons who are not legal persons. What is gained by corporate personhood? Furthermore, persons possess rights but also duties. A person can develop and exhibit virtues. Do legal persons have duties besides obeying the law? Can legal persons cultivate virtues? If no, then we have an instance of a “person” claiming rights but denying any responsibility to act according to virtue. But why should some classes of persons possess rights but not the duties and virtues that attend to “real” personhood? Sounds like a case of having one’s cake and eating it too.

  18. John Médaille:

    Speech is a quality of humans; corporations are not human and cannot speak. Corporate executives can, and do, and as far as I am aware, there is no restriction on their right to speak, to petition the gov’t, to join tea parties, to write a letter to the editor, etc. What is restricted is their right to use corporate funds, funds which have other sources and other purposes, to fund their speech. That is a different thing entirely, and one that spells the end of an already wounded democracy.

    If I join the NRA, it is a reasonable assumption that I believe that will represent me on gun control issues, since that is part of their purpose and my dues will go to that purpose. But if I buy a carton of milk at Wal-Mart, I am not empowering them to speak on my behalf on the subject of milk subsidies. When they do so, they pervert the exchange, and divert funds that belong to the workers or the share-holders. If the workers or the shareholders wish to speak on these issues, they may contribute their earnings to the company’s PAC. But there is no right to use the normal revenues for political purposes.

  19. Bruce Smith:

    Equally, for example, why shouldn’t the employees of the IRS have the right to spend tax payers money on TV ad campaigning against the Fair Tax initiative? Just like the corporations its the public’s money they’ve managed to get hold of and if it wasn’t voluntary you wouldn’t have no roads to ride your pride and joy on! Public goods or private goods where’s the difference? Democracy?

  20. rex:

    Corporations are not people, corporations are mechanisms that make money, corporations have no more right to free speech than a coffee pot.

    Ending corporate personhood:

    Corporations should be chartered for a specific purpose and a definite duration.

    Corporations should be prohibited from owning stock in other corporations.

    Corporations should be prohibited from owning real property. Corporations may lease a property or natural resources only for the duration of the charter.

    Corporate officers can hold criminal and civil liability for illegal activities.

    Corporations that operate illegally should be subject to punishment up to and including dissolution of the charter.

    Big government is not required to control corporations, just remove the protections that allow them to act without regard to the common good and you will find that corporate behavior will improve. Once shareholders realize that they can loose their investment because of greed and illegal behavior, they will insist that corporations toe the line.

  21. Jonathan:

    “The corporation is a “legal person” and that status has been granted by the government. This derivation of rights is, of course, different than the rights that “real” persons naturally enjoy and that are recognized (not granted) by the government.”

    So, if I understand you correctly, people 1,2,3, acting alone, have rights recognized (not granted) by the government. I agree with that. 1,2, and 3 have certain inalienable rights, such as the right to free speech, religion, assembly, etc., recognized under the Constitution, and can exercise that, regardless of whether 1 is extremely wealthy and purchases advertisements about condemning a candidate or legislation, or supporting the same, and 2 and 3 are comparative paupers and must instead rely on talking in the local Chestertonian pub.

    But, if I understand your argument, once Y and Z get together, pool their resources, start a (for example) profit corporation, at that point (or is it when they file articles of incorporation? or declare themselves some other way as acting in concert?), they are no longer “people,” but a corporation, and the only rights they then have are those which a government chooses to recognize? Suppose that X runs his own business as a sole proprietor, and chooses to support some legislation personally through advertisements that benefits his business, but damages Y and Z? Are 2 and 3 still in difficulty (being a corporation) when X is not?

    It seems to me that (if I have your reasoning correctly), that there are equal protect problems here. Of course, that difficulty is solved if you would reply that a wealthy individual must equally restrain himself under the law and is forbidden from running such advertisements. One runs into the difficulty of demarcation of “wealthy,” but you see my argument, I am sure.

    –Jonathan

  22. Bruce Smith:

    The argument is whether society by imposing a level playing field benefits the workings of its democracy and hence its society.

  23. Jeffrey Polet:

    And the church is the Body of Christ. These are, of course, metaphors. I think when we are talking about corporations thus we are confusing its sensible meaning with its literal meaning. The root of the word corporation is “body,” and in this sense is comparably metaphorical in meaning. An economic corporation (the type you seemed concerned about) as a legal entity was never thought of as literally a person, but is a legal fiction designed to encourage investment and activity by distributing risk and liability. There are clearly some disadvantages to this fiction, but some serious benefits as well.

  24. Mark T. Mitchell:

    Jonathan,
    Thanks for pushing me on this. I am with my questions trying to get a handle on this issue and I’m still groping. In response to your latest comment, no, I was not suggesting that individuals A, B, and C have rights until they band together as a corporation. Individuals within a corporation still have the same rights as any other person. But claiming that the individuals comprising a corporation possess rights seems different than saying that the corporation itself possesses rights. Does this distinction make sense?

    All of this is especially curious when the rights attributed to corporations are those listed in the Bill of Rights and the 14th Amendment, which were surely intended to apply to human persons. So I am not necessarily opposed to the idea that corporations might have certain rights, but I think matters get confused when we suggest that corporations have the same kinds of rights as real persons.

    Jeff,
    You are right that the word “person” is used in more than one way and that “legal person” is not the same as “human person.” The question, then, is one you raise: what are the benefits of this legal fiction? What are the liabilities? Clearly there are some of each. Do the liabilities outweigh the benefits? Furthermore, it is possible to identify who tends to benefit and who tends to suffer?

    Thanks guys.
    Mark

  25. Jonathan:

    “Individuals within a corporation still have the same rights as any other person. But claiming that the individuals comprising a corporation possess rights seems different than saying that the corporation itself possesses rights. Does this distinction make sense?”

    It makes sense at some level, though I wonder if the difference comes down to the size and nature of the corporation. Let’s take 5 individuals who own a pub called “Mooreffoc.” (Yes, I am deliberately using the best emotional pull for the Porchers…) The 5 have incorporated themselves as 20% shareholders of the pub, and it is a profitable enterprise. Being prudent, they choose to retain 50% of their earnings for the first few years for upgrades, repairs, and other emergencies.

    Now comes an election year, and the town council has a very persuasive individual running who opposes pubs operating any later than 8:00 pm as they are corrosive to societal morals. It happens that the Mooreffoc makes the vast majority of its profits between 8:00 and 11:00, so this would be a disaster for the pub.

    The 5 shareholders pass a corporate resolution to oppose the candidate and to print leaflets opposing his election, naming the virtues that the pub offers, and spending part of the retained earnings to do so.

    Now, what the shareholders do not know is that the town forbids corporations from spending earnings on political campaigns. When the leaflets are printed and posted, the local constable arrests all five for violation of campaign laws. Now, if the shareholders had taken their earnings as a distribution, and given them to one of their number to print the leaflets, that would have fallen under a guarantee of free speech, and no violation (or arrests) would have occurred.

    Now, John, above, might say (if I understand his reasoning) that this is the way it ought to be, because his purchase of a beer at 5:30 (or anytime) does not authorize the Mooreffoc to use those profits for political activism of any sort. (Which would be different than if John joined and paid dues to the Alliance League of Charitable Offerings Held On Location (ALCOHOL), which was dedicated to keeping such pubs open at good hours for the pub.) But, John would also admit that (if I understand his reasoning), once corporate earnings had been paid to the shareholders, they could do anything they wanted to with those monies, being individuals, including acting as a group in everything but corporate name and charter.

    “All of this is especially curious when the rights attributed to corporations are those listed in the Bill of Rights and the 14th Amendment, which were surely intended to apply to human persons. So I am not necessarily opposed to the idea that corporations might have certain rights, but I think matters get confused when we suggest that corporations have the same kinds of rights as real persons.”

    I do not think they have ALL the sames kinds of rights as real persons, nor has any case or legislation suggested that they do. However, people have certain rights when they act as groups that do not vanish simply because they act as groups, it seems to me. Otherwise, people might have the right to assemble, but the government could then step in and dictate what kind of speech(es) could be given at such an assembly. “Feel free to have your tea parties, but you may only discuss Earl Grey, hot, at such parties.”

  26. Corporations are people too « One Thief to Another:

    [...] this post by Mark Mitchell, I think the source of the  problem becomes apparent.  While this rant against [...]

  27. sdf:

    The phrase “limited liability” has mysteriously been absent from this conversation. While it can be argued that corporations are simply free associations of people who do not lose their individual rights when assembled as a group, the fact that they are assembled under the umbrella of limited liability makes their relationship to the government and society at large quite different from that of any single human person or any group of persons not under such an artificial (and immoral) umbrella.

  28. Roger Bennett:

    SDF:

    Can you unpack why the “umbrella” is “immoral”?

    This much I can say and ask:
    (1) The idea of limited liability was to allow people to undertake potentially useful business projects without the prospect of losing everything they owned (versus everything they invested in the business) if the business failed. Is that an inherently bad idea?
    (2) Small businessmen, in my experience, seem to have trouble figuring out “corporate” versus “proprietorship” when extending credit. I have far too often seen honest small businesses screwed by the corporate form when some slickster set up a corporation on a shoestring, ran up an account, and then walked away from the corporation (that’s oversimplified); the accounts typically aren’t worth the hassle of trying to pierce the corporated veil (get into the slickster’s personal pocketbook). Can you have #1 without risking #2?
    (3) I dislike big government, but in the last two years I’ve come to believe that government must at a minimum (prescinding questions about corporate personhood) be big enough to bust up the “too-big-to-fail” corporations. Isn’t it intolerable to have corporations so big it can extort money with the threat of taking down the whole economy?

    I don’t mean to derail the conversation Mark started, but it already has gone quite far afield with questions that strike me as being posed by bright people who have no idea what a corporation is in the first place.

  29. T.N.:

    Roger Scruton, who trained as a barrister besides being a bang-up philosopher, has written some very interesting and illuminating pieces on ‘corporate’ personhood. I could be mistaken, but I’ve seen no comments mentioning him. The pieces I’m referring to are in his books “Philosopher on Dover Beach” where he discusses Gierke and in “England: An Elegy,” where he discusses the monarchy as a ‘corporation sole.’ Just thought I’d add those bits to the mix.

  30. Mark T. Mitchell:

    T.N.
    Can you summarize what Scruton says?

  31. Jonathan:

    And for those that have access, something interesting:

    ORPORATIONS ARE PEOPLE TOO: A MULTI-DIMENSIONAL APPROACH TO THE CORPORATE PERSONHOOD PUZZLE.
    Author: Ripken, Susanna K.
    Journal: Fordham Journal of Corporate & Financial Law
    Pub.: 2009
    Volume: 15
    Issue: 1
    Pages: 97(81)

  32. Jonathan:

    And ah hah!

    http://www.sci.brooklyn.cuny.edu/~schopra/Persons/ScrutonFinnis.pdf

  33. Rick Garnett:

    Here is a post I just put up at “Mirror of Justice”, responding to Mark:

    Mark Mitchell, at the (wonderful) blog “Front Porch Republic” — taking a cue from our friends at Commonweal, apparently — links here to Stephen Colbert’s riff on “corporate personhood” (and hilarity ensues). Mitchell writes:

    Corporations today are considered legal persons. This means that they enjoy the protections of the 14th amendment which implies that the bill of rights applies to “corporate” persons as well as “real” persons. But corporations are not persons. They are not alive. They are not even dead. They do not have natural life spans. They are not mortal creatures whose essential mortality induces reflection on the ultimate meaning of life and leads the wise to live out that brief existence with an eye to what matters most. A corporation never dies a natural death and therefore lacks the natural incentive to live a life that includes dying well. An immortal person is a god. By calling a corporation a person (whose charter is for perpetuity) have we created a strange new god? A new idol before which we prostrate ourselves? The corporation, rightly conceived, is to serve human beings. Corporate personhood has the effect of blurring this goal and reversing the relationship.

    Arguments like this have been thick on the ground (or in the air?) in the wake of the Citizens United case (which was, in my view, correctly — if perhaps overbroadly — decided). In my view, the “corporations are not alive, etc.” argument misses the point (at least, it misses the point of the Court’s free-speech caselaw). The issue is not so much whether or not “corporations are . . . persons” that “enjoy the protections” of the 14th Amendment. Rather, the issues is about the nature of the constraints that the First Amendment places on government regulations of political speech (and political ads, even if paid for by corporations, remain “political speech”). In my view, the First Amendment embodies a strong “no government distortion or manipulation of the content of political expression and debate” norm. When applying this norm, it seems to me more important to focus on what the government is doing than on who (or what) it is doing it to.

  34. Parmenicleitus:

    The 14th Amendment created a *national* citizen rather than a citizen made so through one of the “several States.” There was no “U.S citizen” prior to the 14th Amendment. With the 14th citizenship was now centralized, and as such, in the US it didn’t matter where you were, where you called home, you were a citizen. You were equal with all others who were simply born, or naturalized, within the borders of the US. Merit, virtue, hard work made no difference. Equality was, and is, the main motive.

    Well, coming into a vast technological age with forms of machinery (ex. telegraph and trains) and media (radio to internet) that can increasingly become one’s environment, we begin to see the need for increased homogenization for the purposes of the State (Radical Republicans and Progressivism) and corporations combine. I think these words from the late Samuel Francis spell it out well:

    “But equality is no less useful for large corporations, which require a nationally homogenized market of consumers that can be manipulated into buying their products and which find abhorrent and dysfunctional the persistence of local variations in their markets caused by smaller, localized competitors or class, ethnic, and regional diversities of taste and demand. Only if such variations and diversities are broken up and homogenized by the inculcation of an egalitarian ethic of universal consumption, immediate gratification through credit, and upward social and economic mobility and a uniform range of wants can large corporate enterprises operate on a national (and now a global) scale. It is thus basic to the interests of the large corporation to erode social and cultural diversity and promote egalitarian uniformity, as well as to cooperate with and support political egalitarianism, the costs of which in increased unionization, protection of the labor force, regulation, civil rights legislation, and ecological environmentalism, are ruinous to smaller competitors…” (_Beautiful Losers_ p. 219)

    I don’t think for a moment that large moneyed interests were free from the penning of the 14th Amendment any more than with “progressivism.”

  35. Bruce Smith:

    This ruling is all about who can outspend who to tip the scales and dominate the narrative. And guess who has the better odds?

  36. Bruce Smith:

    Yep! You were right! With 2000 corporations owning 50% of the world’s wealth it would be the Fictitious Persons!

  37. Pensans:

    Actually, corporate rights and corporate personhood is older than individual rights and personhood. In legal history, the law recognized the history of groups of individuals long before individuals simpliciter.

    We generally recognize the reality and moral responsibility of many groups,e.g., nations, churches, families. Even formally unorganized mobs are recognized to have a real group life irreducible to the choices of individuals.

    The choice to grant legal personhood to groups cannot be attacked on the ground that groups are not real or historically recognized bearers of rights.

    The particular groups to which rights of legal personhood are granted may be attacked. But the post sweeps too far.

  38. John Médaille:

    Pensans, no one has argued that groups are not bearers of rights; the argument is that they are not bearers of natural rights. They have whatever rights the state grants them consistent with the purposes for which the state charters them or otherwise recognizes them in law. You cannot argue that because a real person has a right, a purely fictitious “person” must have the same rights.

    Further, the corporation wants a right no one else has: to spend money that does not belong to it. A corporation’s revenue does not belong to the corporate executives, but to the owners and workers and other stakeholders. And this really is the nub of the question. The “corporation” is not being granted any rights; a small group of executives is being granted unlimited rights using the corporation as a cover and its funds as a virtually unlimited source.

  39. Bruce Smith:

    The law mandates that on behalf of its shareholders a corporation must be motivated by profit in all that it does. This is tantamount to being completely self-interested. Most sane societies judge a living person who continuously manifests this outlook to be a sociopath.

  40. Bruce Smith:

    Just the kind of “corporate person” to be blasting our airways telling us right from wrong:-

    http://www.nytimes.com/2010/03/12/business/12lehman.html

    How many more like this on Wall Street?

  41. Tory Anarchist » Christian Legal Society v. Localism:

    [...] of all stripes, from the libertarian Felix Morley to the radical Ralph Nader to various Front Porch traditionalists, have seen this as a fatal perversion of the federal system. Is it any less of a perversion if the [...]

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