Corporate Personhood 2

My last post encouraged some vigorous discussion on the topic of corporate personhood. I thought it important enough to reply as a separate post.

A legal person is a bearer of rights and obligations. A natural person is an individual human being. A corporate person, or corporation, is formed when a group of people forms a collective body which is recognized by the law as an individual, distinct from its members.

Intrepid reader Donald says this:

Corporate personhood is a fiction, so this entity cannot have the rights of a natural person. Corporate speech cannot ever be equated with speech because a corporation is comprised of several or many natural persons, some of whom or many of whom are usually at odds in what should be said or what should be printed.

And this:

Corporations are not mentioned anywhere in the constitution. All references in the constitution refer to natural persons. The rights guaranteed in the constitution do not apply to corporations.

These extraordinary claims would make for a great dissertation, were there any evidence to support them. If it were true, then a Church could not exist and hold property except at the leave of the state. That would be a novel doctrine. I would be very surprised to learn that the founders disagreed with the judgment of Blackstone in his Commentaries on the Laws of England. See Book 1, Chapter 18: Of Corporations.

We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

These artificial persons are called bodies politic, bodies corporate, (corpora corporata,) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct.

A corporation is then, according to Blackstone, precisely what Donald says it is not: it is an artificial person that can speak for and represent a number of persons and bear rights.

Was this view adopted by American courts? We have Trustees of Dartmouth College v. Woodward (1819). In the penultimate paragraph, Justice Marshall announces that the Court is of the opinion

on general principles that, in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest and completely representing the donors for the purpose of executing the trust, has rights which are protected by the Constitution.

The question in this case was precisely whether Dartmouth College was a state institution or a private institution. If the latter, which the Court concludes it was, then it is protected against the power of the State of New Hampshire to alter its structure. If Donald's novel view had been the view of the Court, then New Hampshire or any state could at a whim abolish or reorganize any private college or any other corporate person, including the ACLU or the NAACP for that matter. That is the power that Donald is arguing for.

Subsequent courts would substantially reduce the power of the contract clause. To my knowledge, no court has ever ruled that corporations have no rights under the Constitution. To do so would really make corporations a fiction, as Donald says they are. That would overturn centuries of law. It would severely limit not only free enterprise but the ability of citizens to organize against their respective state governments or the federal government. Thankfully, the Court never imagined what Donald imagines.

I will reply to reader Bill tomorrow.

Comments

[Donald Pay]

Do you forget, KB that we fought a revolutionary war largely against the whole idea of the English corporate structure, and that Blackstone was referring to these corporate structures, including quasi-government organizations, not to modern business corporations. You have proved here you are ignorant of history.

[larry kurtz]

Galeburg, Illinois moving to amend: http://www.galesburg.com/news/x890738883/Local-meeting-to-address-curbing-corporate-power

[Bill Fleming]

You left out this part, KB: In that same New Hampshire case, Chief Justice John Marshall explained the nature of a corporation: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”

http://legal-dictionary.thefreedictionary.com/corporation

[Ken Blanchard]

Bill: yes, he did, and it is. No one is saying that one can deliver a corporation by natural childbirth. He is there distinguishing one kind of corporation from another. Corporations owned by the state are creatures of the state and may be controlled at will. Corporations owned privately are not, and enjoy constitutional rights of contract. The ending of the case is dispositive.

[Ken Blanchard]

Donald: on the one hand you deny that modern corporations existed at the time of the founding and on the other think that we fought the revolutionary against them. Unless you can provide any evidence that we fought the war against the British "corporate structure" (back when you say that corporations barely existed, then we have to conclude that you are nut.

Meanwhile I can't wait to hear from you about the Founder's deep concern over global warming.

[larry kurtz]

Constitution is fluid by design:

http://minnesota.publicradio.org/display/web/2011/12/14/midmorning2/

http://www.constitutioncafe.org/

[Bill Fleming]

Clearly not, KB. As per Marshall: "[a corporation] Being the mere creature of law," continues the judge, "it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created."

i.e. even the right to liberty is restricted.

[Jon S.]

Donald, by some counts Blackstone is the most cited legal/political thinker by the American Founders. By any count he is one of the very most influential thinkers on the founding. Do not forget that for many of the founders, including Jefferson, they were fighting to vindicate the rights the believed they were owed as Englishmen, not to supplant them. See Jefferson's Summary View of the Rights of British America.

[Bill Fleming]

Jon S. speaking of Mr. Jefferson:

"I hope we shall take warning from the example and crush in it's [sic] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws our country." — Thomas Jefferson from a letter to George Logan, Nov. 12th, 1816

[Donald Pay]

I don't know why it's so hard for conservatives to understand that the founders were very influenced negatively by the behavior of corporations that existed at the time of the founding, and that they set up the Constitution in order assure that individual rights of people, not the quasi-governmental corporations. Corporations of that time were chartered by the Crown, or by state legislatures, and served as a kind of quasi-governmental organization. The Bill of Rights were established as a check on the powers of government and the institutions of government. The Founders could have provided these rights expressly to corporations, but they did not. And they nowhere implied these rights.

Here's the problem with conservative thought. They claim to believe in strict construction of the Constitution. And they claim to believe that modern business corporations have all the rights of people. Those are two mutual exclusive beliefs. If you believe one, the other has to go.

[Bill Fleming]

They also seem to believe that money equals free speech. And that CEO's and Boards of Directors equal the collective will of the stockholders. And that corporations write and edit newspaper articles. Lots of goofy stuff, Donald.

[larry kurtz]

Common Cause: more cities poised for resolutions that Move to Amend.

http://www.commonblog.com/2011/12/14/model-city-council-resolution-to-overturn-citizens-united-buckley-v-valeo-and-corporate-personhood/

[Dave]

Ken, I am surprised at you... Your quote left out a most prime example of judicial activism as there has ever been!

The example cited actually starts with "But the Court has deemed it unnecessary to investigate this particular point." But that doesn't stop the court from making a judgement on a topic not argued before the court... Hmmm...

And I for one am also surprised to learn that our Constitutional law is based on, and subject to the laws of jolly old England...

[Ken Blanchard]

Dave: I am sure that pretty much everything about the Constitutions and the laws of this Republic will come as surprise to you. The Founders did not create their legal and political concepts from scratch. Blackstone was a recognized authority on such legal concepts as the corporation. He is quoted frequently in American case law throughout the 19th century.

You read poorly. The "particular point" which the Court deems it unnecessary to investigate is stated before my quotation, not in the quotation itself. That point was whether the Constitution only protects persons or groups that appear in court. It is moot because, even if the Court adopted it, there are two parties with vested interests appearing in this case AND because "on general principles... the body corporate... has rights which are protected by the Constitution." What you are accusing the Court of here is not judicial activism but making an obiter dictum, or a comment beside the point. As the Court's conclusion about corporate rights is obviously relevant to the case and is not contested by either party, this is neither an obiter dictum or judicial activism.

I am happy to bring you up to speed on these points.