Academic journal article Constitutional Commentary

Why Personhood Matters

Academic journal article Constitutional Commentary

Why Personhood Matters

Article excerpt

No aspect of the infamous (1) Citizens United (2) decision has galvanized public opinion as much as the perception that in this case the Supreme Court held that corporations are entitled to the same rights as human beings. (3) If the rallying cry of Citizens United's supporters is "Corporations are people, my friend," (4) that of the opposition is "Free speech is for people." (5) Yet many knowledgeable commenters, including many legal scholars, (6) tell us that this public perception is mistaken. Corporate personhood is not the problem, they say. Nothing turns on the legal fiction of corporate personhood. So efforts to amend the Constitution, or to otherwise "overturn" Citizens United are misguided, even mischievous, because the personhood fiction is a "useful fiction," (7) one necessary to accomplish all sorts of worthy objectives, (8) objectives which would be undermined if we did away with corporate personhood. (9)

In this Essay I want to reject the suggestion that personhood is not important. Although it is true that corporate personhood has been around long before Citizens United, (10) the public's perception that the Court did something important with the concept is correct and we are continuing to see the consequences of that interpretation unfold in cases like Hobby Lobby. What the Court did was to cast the corporation into the role of a "disfavored" speaker. It suggested that the campaign finance limitations were discriminatory because they only applied to corporations and that such "discrimination" was unconstitutional. This rhetorical move has been repeated in subsequent cases substituting "marketing" (11) for "corporation" and "free exercise of religion" (12) for "freedom of expression." (13) This framing exploits our tendency to condemn discrimination between persons in order to make these controversial decisions seem self-evidently correct and neutral. (14) The personhood metaphor distracts from the underlying, theoretical vacuum. The Court has never said that corporations enjoy all of the same rights as persons. (15) But it hasn't offered much explanation for the distinctions. As many scholars have observed the Supreme Court has failed to articulate a theory for corporate rights, relying instead on what could (at best) be described as "case-by-case adjudication" (16) and (at worst) as something less charitable. (17) What we have instead of a rationale is an ipse dixit. "[R]emarkably, the Court has never offered a sustained argument as to why corporations merit constitutional rights.... strictly speaking, the question has never been decided but merely presumed decided." (18) There is a blank spot where a rationale should be.

It is worth contemplating this empty spot. Although we condemn discrimination between persons as invidious, there is a sense that we do so based upon a recognition of our shared humanity and that human beings exist whether the law recognizes them or not, but that for law to have a claim to moral legitimacy it must recognize them. (19) However, there is no such prior existence of corporations. A corporation is a legal fiction. It has the attributes the law gives it, no more, no less. (20) There does not seem to be any good reason that the entity, as such, needs protection for freedom of expression or freedom to exercise a religion. Nor does it seem that there should be any philosophical, moral or political necessity for a commitment to the equal treatment of all fictional entities. Quite the reverse; such a commitment would make it more difficult to tax various entities differently or to regulate some industries more heavily than others. (21) This is the sort of regulation that the end of the Lochner era appeared to settle. (22)

Yet hostility to such distinctions is what Citizens United and its progeny reflect. This hostility seems based on eliding the moral statuses of the juridical versus the human "person" and that elision facilitates a broadly deregulatory agenda, (23) one that lays the foundation for attacking securities laws, labeling and disclosure laws, licensing laws, pharmaceutical marketing regulation, truth-in-lending laws, and countless others. …

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