Corporate Personhood 3

Reader Bill F. has done some serious thinking about corporate personhood. He has a lot of interesting things to say, but here is the most interesting one:

Rather than debating whether or not a corporation is a "natural" person, our argument centered on whether a corporation had natural, inalienable rights. These rights, of course predicate the protection (and/or limitation and abridgment) of them by law. My contention is that since a corporation is a legal abstraction of a "person" it is granted only such rights as the law allows when it comes into being. Our opponent maintains that because the corporation is owned by real "natural" people, it retains some (but not all) of those person's natural, inalienable rights.

Bill presents two positions. His is that corporations possess only such rights as they are granted by law. His opponent thinks that corporations have natural rights derivable from those of the natural persons that own them.

At the risk of shocking everyone, I am more in agreement with Bill here. Natural rights are those that belong to human beings by nature. Bill and I have the rights to life, liberty, and property, because we are morally responsible creatures. Corporations are obviously not natural creatures and so cannot directly enjoy natural rights.

I wouldn't rule Bill's opponent entirely out of contention here. The right to free exercise of religion might well mean a right to incorporate a church, and the right of a church to own property. We would only have to resort to natural rights in such a case if Bill is correct that all corporate rights are granted by ordinary legislation.

The question here, however, is not whether corporations enjoy natural rights but whether they enjoy constitutional rights. The fact that a relationship is created by the state does not tell us what powers the state has over that relationship. Marriage is such a relationship. Can the state dissolve a marriage at its whim? Corporations are artificial persons that exist in so far as they are recognized in law. Yet corporations are parties to contracts. Do they not then enjoy protection under the Contract Clause of the Constitution? Can a state government arbitrarily seize the assets of the Sierra Club or Pizza Hut simply because these entities are artificial? I would be interested to learn of any ground for that in law.

Private corporations, for profit or otherwise, have obligations and can be sued. I guess that Bill does not object to this. I hold that such obligations logically imply rights which must be respected by the governments that hold them to their obligations. Otherwise, corporations could not really exist.

The question, then, is not whether corporations enjoy constitutional rights but which rights they enjoy. I think Bill and I agree that corporations do not enjoy all the rights of individual citizens. The New York Times posted a very helpful editorial on this question. I quote:

The courts have long treated corporations as persons in limited ways for some legal purposes. They may own property and have limited rights to free speech. They can sue and be sued. They have the right to enter into contracts and advertise their products. But corporations cannot and should not be allowed to vote, run for office or bear arms. Since 1907, Congress has banned them from contributing to federal political campaigns — a ban the Supreme Court has repeatedly upheld.

It is settled law that corporations enjoy some constitutional rights. The Times does not mention this one, but I have done so and I do again here: the freedom of the press.

Who enjoys this right? If you claim that only natural persons enjoy rights under the Constitution, the novel doctrine that some of my interlocutors seem to be proposing, then only someone who owns a printing press would have it. Almost all newspapers, or TV and radio stations, or today major internet venues, are corporate owned and for-profit. Does the Constitutional freedom of the press protect these corporations, or not?

I have asked this question repeatedly and so far gotten no answer. Could the federal government prohibit the New York Times from publishing the quoted editorial because the Times is an artificial person, existing because it is recognized by governments? Or does the New York Times enjoy protection under the First Amendment? I answer that of course it does, both in reason and in law.

Without constitutional protections for for-profit corporations, the First Amendment freedom of the press would be all but abolished. That is the logical consequence of my interlocutor's view that corporations enjoy no constitutional rights but only such rights as the states graciously agree to lend them. Is that really where they want to go?

Comments

[Jana]

Corporate personhood. According to the right, personhood begins at conception. So is that when the idea meets the possibility of capital? You know, like before the articles of incorporation are filed, a board of directors put in place, bylaws, filing with the secretary of state...that kind of thing.

Or is it when they take on their first debt or record their first income?

I know that there's a lot of talk about the personhood amendment floating around statehouses, so it might be good to know when a corporation is a personhood and when it's not.

So when someone kills an idea that has found capital but not a business location, is that abortion? Or does it matter how far along the development is before it is classified that way.

And then if someone kills the corporation is that murder? If it is, Mitt Romney is in a lot of trouble.

[Donald Pay]

All of the proposed amendments I've seen have a section specifically granting freedom of the press rights to corporations. I wouldn't favor that unless there is significant reform in corporate law requiring corporations to be chartered by state legislatures subject to referendum procedures, and that corporations could not use their press freedom to meddle in elections.

[Bill Fleming]

I have never read a single word that any corporation has ever written.

Corporations, in and of themselves are mute, KB. Like my computer here, it's not going to type anything or hit the "post" button unless some real person behind the curtain does it for "her." (For purposes of this post, my corporation/computer's brand proxy name is "Edna®.")

To be clear, it is my personal first amendment right that is in play here. The corporation's executive body (the people I work for) may choose to appropriate and exercise my 1st A. right, or it may choose to censor me and fire me if I publish something not to their liking.

This, of course is distressful to me, and is perhaps the reason why I own my own companies... one corporation and one LLC. But you know what? I can never get either one of those lazy "people" to write one damn line of ad copy for me.

Ever.

[Bill Fleming]

p.s. Good post, Ken. I think we have pretty much the same understanding.

[Bill Fleming]

p.p.s. I hope you caught the suggestion that my corporation already limits (and thus infringes on) my First Amendment rights. I try not put too sharp a point on this because it sometimes pisses the boss off (my wife and business partner), and plus, I need the work. I suppose you could say I surrendered those rights voluntarily by buying the stock, taking the job, (and yes, getting married) but that's not gonna really make me feel any better about it ;^)

[Bill Fleming]

I don't want to take up this whole thread, but I do want to respond to this: "Can the state dissolve a marriage at its whim? Corporations are artificial persons that exist in so far as they are recognized in law."

The answer of course, for all practical purposes, is "yes." Ask any LGBT couple who considers themselves "married."

[Jimi]

Bill,

Corporations simply have the right to protect their self interest through advertisement and endorsement 60 days within an General Election, and 30 within a Primary. They still cannot directly contribute to a candidate without the use of a PAC.....so what is the beef?

Unions have been granted this same liberty, a liberty they were not allowed before. Here is the decision and the opinions from the court.

http://www.scotusblog.com/wp-content/uploads/2010/01/citizens-opinion.pdf

"Ask any LGBT couple who considers themselves "married."'

Just because they considered themselves married doesn't mean that they actually were married. Marriage is defined by law differently in every state. Here are the defintions by state.

http://www.clgs.org/marriage/state-definitions

[Bill Fleming]

Jimi, I can always count on you to completely miss the point.

[Jimi]

Bill,

I asked you what the problem is? Well......what is it?

[larry kurtz]

So, Bill: does this amendment fix the constitutional problem as you state it?

[Bill Fleming]

Did you mean to post a link, Larry?

Jimi, the concern, as per Thomas Jefferson, is that corporations will usurp the power of government of the people, by the people and for the people and replace it with a corrupt, tyrannical, totalitarian oligarchy similar to the one that runs Russia.

A welfare state for the very, very wealthy complete with a "let-them-eat-cake-attitude (like yours).

Our country was founded by people who rejected that type of ruling class.

But if it's now okay with you, just keep thinkin' like you're thinkin' brother.

Just don't be surprised when the working class freedom fighters have the effrontery revolt against you elitist position, and pray that their revolution will be a non-violent one.

[larry kurtz]

Doh. http://movetoamend.org/amendment

[larry kurtz]

Here is the link KB provided of another version: http://thomas.loc.gov/cgi-bin/query/z?c112:H.J.RES.90:

[Bill Fleming]

I think the proposed amendment is okay, Larry. But good luck getting it passed in this political climate. I think a good lawyer could make the same case using the 14th Amendment as is. I mean hey, they used it to appoint a president, didn't they ;^). Let's get the David Boies/Ted Olson team on it, baby.

[Jon S.]

Bill,

I just saw your quote from Jefferson in the previous thread (everyone else can look it up there). Here is where Jefferson and I part way with you. All of us (I mean you, me and TJ) are nervous about the role large economic entities and large concentrations of wealth have in our society today. The older I get the more I believe that small (and local) is beautiful. That goes for government as well as economic structures. The difference is that why TJ and I don't like large corporations, we don't think the government should deny them the right to spend money on political speech. You do. Of course TJ might favor laws that denied these corporations the right to exist, at least in the fashion they do today.

[Bill Fleming]

Jon S. I'll make you a deal. You don't presume to know what I think, and I'll return the favor. Okay?

[Jimi]

Bill,

What are you talking about? How does letting corporations run advertisements 60 days within an election, "usurp the power of government of the people, by the people and for the people and replace it with a corrupt, tyrannical, totalitarian oligarchy similar to the one that runs Russia."

Did you not read the SCOTUS decision and see that they cannot directly contribute to candidates, or run campaigns, or run advertisements in coordination of campaigns?

Also, your assuming that all corporations have an anti democratic agenda....why?

Why are you so one sided on this. Why are you not a leary about the Unions having the same ability even though they have a for profit agenda as well?

"But if it's now okay with you"

What exactly has changed? Corporations and Unions have always had the right to endorse legislation and candidates just as long as the advertisement disclosed the funding stream. The only difference now is that it can be done 60 days within a general election and 30 days within a Primary. Explain to us all how advertising your corporations position on a candidate or peice of legislation threatens democracy?

[Bill Fleming]

Jimi, both you and Jon appear to be presuming that I'm taking a position on this issue that I have not, in fact as yet taken. My efforts thus far have been to clarify the issues surrounding the nature of a corporations rights as they relate to those of natural born (and naturalized) human citizens. Fortunately, KB has followed that with me and we have arrived at some rather satisfying mutual agreements.

When I do form a firm opinion on this issue and am prepared to argue it, rest assuredI will let you it know by actually arguing my point. In the meantime, as with Mr. Schaff, I would appreciate it if you will refrain from presuming that you can read my mind. I have enough problems doing that myself sometimes. Thanks. BF

[Jimi]

Bill,

"When I do form a firm opinion on this issue and am prepared to argue it, rest assured, I will let you know by actually arguing my point."

So in other words your Bitching for the sake of Bitching? Figures!

[Bill Fleming]

I've addressed some key points here that have consequences far beyond this issue. If you had any insight you would realize that. But since you don't seem to, why don't you just calm down and pay attention for a change? This doesn't always have to be about having a fight.

[Ken Blanchard]

Bill: you say that you have never read a single word that a corporation has written. In that case we can suspend the argument, can't we? The Supreme Court may have been wrong to recognize a freedom of speech belonging to corporations since corporations cannot speak or write; only individuals can do these things. Fine. For that same reason, corporations cannot be prohibited from speaking and writing and publishing on behalf of a campaign, since one can scarcely be prohibited from doing what is impossible.

I notice that no corporation ever paid taxes or polluted anything; only people did those things. So corporations can't really be taxed can they, or held liable for injuries to individuals or the public. Now you have to give back all those taxes and judgments until such time as Court can determine individual accountability. No doubt that will not more difficult, well not enormously more difficult, or at least, not vastly more difficult, than treating corporations as if they were persons. Such is the consequences of the shrewd legal mind possessed by one Bill Flemming.

[Bill Fleming]

I believe, KB that you and I have established that since Corporations are an abstract legal entity and not a real person,they can be regulated with impunity as we the (real) people see fit. Correct me on this if I have missed something ;^).

[Bill Fleming]

p.s. KB, one "m" in Fleming, please.

[Bill Fleming]

Moving this exploration a bit further (baby steps, please) we could perhaps examine the issues of transparency and nationality. When considering participation in US elections, to what degree is it just and prudent of our election system to demand that voters know the identity and nationality of those who lobby for the people's vote?

[Bill Fleming]

As to your note, KB, you are correct. One of the reasons people form corporations is so that they can hide behind it and avoid having to take responsibility for their actions. I believe they call it "limiting their exposure and liability." Not exactly a "Republican" value, is it? Shirking one's responsibility?

[Jimi]

Bill,

"to what degree is it just and prudent of our election system to demand that voters know the identity and nationality of those who lobby for the people's vote?"

Once again read the judgement and opinions by the court. The law clearly states that the corporations cannot contribute directly to candidates, and they cannot run campaigns without a PAC, just like it has always been, and they cannot run adds that do not disclose the funding stream.

Also, the advertisments must fall under the regulation of the FCC. In other words.....there are fines and penalties for the Stations and Cable networks if they allow content that violate the FCC regulations....this includes "lieing" and "lieing by ommision." This is the reason why the Left is so up in arms about Corporations being allowed in the game. This is also the reason why we won't we won't see many political ads from them, they cannot compete without lieing. :)

http://transition.fcc.gov/mb/policy/political/candrule.htm

We can see this same feign of outrage and artificial concern about voting. The left wants everybody to be able to vote no matter the circumstances (i.e. Illegal...Felons...the Dead....the underaged...multiple votes). They need to be able to cheat like they have done in the past to give Obama a shot at keeping his job, and now they want to cry that they have to play by the rules for this one...it's just pathetic!

[Bill Fleming]

Jimi, I notice you were kind enough to cut and paste my question rather than retyping or rewording it, but that everything after that went on to address things I didn't ask.

Interesting approach you have going on there.

Next time, maybe just leave my question out altogether if you're going to do that.

It will be less jarring to the reader when you just go off on your own zoned-out rant without having to pretend you're actually addressing the points made in my question.

I promise, I won't be offended.

[Dave]

Ken, I think we'd all agree that foreigners should not be allowed to influence US elections, right? But why should we be forced to accommodate corporations who are either based in foreign territories or who have foreign investors or even foreign governments as investors?

And I think we can all agree that corporations have rights that are protected under the Constitution. But what are these rights? Most folks think the rights are spelled out in the 'documents of incorporation.' To add rights after the fact could be evidence that one subscribes the "living document" theory regarding the Constitution or contracts in general... You really can't have it both ways you know... Either you take an "originalist" view, or you interpret the document for the times you live in.

ALSO... I noticed you seem to have a rather narrow definition of "judicial activism"... I myself have friends who define it as an act by "liberal judges" believing that conservatives are incapable of such "activism"... Perhaps you could take a few minutes of your elitist tenured professor time and provide all of us with your definition.

Thanks.