Corporate Personhood

Posted: Sunday, January 24, 2010 at 12:01 am
By: Ken Blanchard
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LeviathanMy friend and esteemed Keloland colleague, Cory Heidelberger, weighed in on corporate personhood on the Keloland blog.  I think that Cory is confused about the case and more importantly about the issue.  He writes this:

A corporation is not a person. The law and a majority of the current Supreme Court say it is, but they are wrong. As Justice John Paul Stevens said from the bench in dissent yesterday, “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”

Well, maybe not; but corporations can act and be held legally responsible for their actions.  If Cory is correct, then corporations could not be sued in Court.  That is what legal personhood means: the name of a corporate body can appear on one side of the v. in a case name.  If the law says a corporation is a legal person then, by definition, it is that kind of person.

Without legal personhood, Planned Parenthood could not have taken a position v. Casey; nor could the Church of Lukumi Babalu Aye have sued the city of Hialeah when the latter tried to legislate it out of the city limits.  Neither abortion rights organizations nor churches have beliefs, feelings or desires.  Moreover, corporations could have no legal rights, so the Government could step in at will and seize the Sierra Club’s treasury and any property it collectively owns.  Or, to put it slightly different, the Sierra Club could not own property.  I doubt that Cory is really committed to any of these consequences of his declaration.

Cory says:

While I read the Supreme Court’s ruling in Citizens United v. Federal Election Commission allowing corporations to donate to political campaigns…

I confess that I haven’t read all 183 pages of the decision yet, but I am pretty sure this is wrong.  Corporations can be restricted from donating to political campaign organizations under this ruling.  But the Government cannot prevent a corporation from acting independently to buy time on TV or space in print to express an opinion about an election.

Cory goes on to accept corporate personhood, arguendo, and then he presents us with this scenario:

Suppose I, a person, amass a vast sum of money (through hard work and wise investing). I run for state senate against Russ Olson. Two weeks before the election, I offer the Madison Daily Leader, KJAM, and every other media outlet that reaches our district four times their going rate to buy every available ad space.

I think this fails as a counterpoint, since many people with vast sums of money do run for office.  John Kerry did so.  So did Governor Corzine in New Jersey.  We see how that worked out.

But my friend’s arguendo demolishes his point.  If a real person like Cory could present this kind of threat to the political system, then personhood obviously isn’t the issue.  The issue is what freedoms persons, corporate or individual, ought to have and, as Cory’s title has it, what constraints government can put on those freedoms.

I know of no one who thinks that corporate persons have all the rights under the Constitution that individual persons have.  I am not sure how Chuck E. Cheese could enjoy freedom of religion, or how Victoria’s Secret, without a physical body, could enjoy the freedom of assembly.  But I do think that the ACLU and the NRA have the right to take positions on issues and to buy media space to advocate those positions.  If they have it, so does Merck, Inc.  Barring Cory’s imaginary scenario, I don’t think Government has the legitimate power to prevent us from hearing what these corporate bodies have to say.

About Ken Blanchard:
Dr. Kenneth Blanchard, Jr. is Professor of Political Science at Northern State University. He writes on political philosophy and sociobiology, and blogs on politics and jazz.

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  1. Doug Wiken says:

    Blanchard appears to have found some special distinctions without a practical difference. My memory may be wrong, but the idea of corporate personhood may have sprung from a lawsuit about a river boat. This court has pushed the personhood into a new area.

    Blanchard points out the obvious about Victoria’s Secret, etc. , but leaves us with the impression corporations can have opinions and can use money to express those opinions. It makes about as much sense as giving computer robots the right to use the money made with them to speak politically in favor of robot rights.

    Corporations ought to be required if not driven out of the political manipulation are to die when they reach about 40 years of age and be subject to estate and inheritance taxes like a rich one of us might be or may have been.

  2. Ken Blanchard says:

    Doug: Thanks for the comment. I find your first paragraph a little inscrutable. Corporate personhood as a fact of law goes back to the beginning of the Republic. Corporate bodies have always been able to appear as persons in a legal controversy. Corporations were recognized as having the contract rights protected in the Constitution in Trustees of Dartmouth College v. Woodward, in 1819. I don’t remember any riverboat figuring in.

    This right was essential to the college maintaining its independence from the state, which wanted to place the college under the control of the governor. Do you really think that’s “a distinction without a practical difference?”

    Do you really think that the Sierra Club or the ACLU do not have the right to express opinions and to buy media space for that purpose? Your last sentence disintegrates. Think about what you are saying!

  3. Doug Wiken says:

    Organizations cannot express opinions. Their members can. Political parties are a way to aggregate opinions even if they seem to be failing that recently. The idea of corporations which rely mostly on contract law was never to give them the functions of political parties. The Supreme Court decision could completely change the structure of political parties and turn them into a kind of political Walmart.

    There is no reason whatsoever to give corporations any rights that citizens have. Business structure and operation and activist organizations can be covered with other systems of laws that do not require the fiction of their being persons.

    I do not understand why conservatives who have in the past ranted and raved about judicial activism and court “lawmaking” are not livid about what the court has just decided.