Wednesday, January 27, 2010

The Supreme Identification of Persons and Corporations

Another recent news item that has generated a great deal of internet and media buzz is the Supreme Court ruling in Citizens United v. Federal Election Commission to allow unlimited corporate funding of federal campaigns.  My friend and colleague Paul Levinson is one of the few people I know who thinks the ruling was correct and beneficial, and you can read his statement over on his blog in a post he called, Why the Supreme Court Decision Allowing Direct Corporate Spending on Elections is Correct.   

Paul is a vigorous defender of the First Amendment, a First Amendment literalist cut from the same cloth as Supreme Court Justice William O. Douglas (who, like me, was a member of the Beta Theta Pi fraternity--once a Beta, always a Beta, everywhere a Beta, or so we used to say).

Now, while I don't share Paul's position on the First Amendment, that issue does not concern me here.  Nor do I wish to go into the corrupting potential of unrestricted corporate spending on political campaigns (but see what former Justice Sandra Day O'Connor said about the potential for undue influence on the judiciary, on the judiciary mind you, beyond officials elected to the legislative and executive branches of federal, state, and local governments: O'Connor Calls Citizens United Ruling 'A Problem').  These are all very important matters, and all have been the subject of serious discussion, and ultimately these are the issues that matter in this case.

And yet, it seems that the lion's share of the attention, at least as far as I can ascertain, has centered around the fact that the ruling involved the legal decision to grant corporations the legal status of persons.  This was a 19th century decision, traced back to the Supreme Court case, Santa Clara County (home of Fordham University's "sister" school, Santa Clara University) v. Southern Pacific Railroad Company 118 U.S. 394 (1886).  According to the rat haus reality press website, which provides a page devoted to the case, it was the result of a clerical error or unauthorized addition.  Here's what they provide by way of preamble to the actual text of the decision:
This is the text of the 1886 Supreme Court decision granting corporations the same rights as living persons under the Fourteenth Amendment to the Constitution. Quoting from David Korten's The Post-Corporate World, Life After Capitalism (pp.185-6):
          In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the Constitution. 

          Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara County v. Southern Pacific Railroad Company that
          The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.
          The court reporter duly entered into the summary record of the Court's findings that
          The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.
          Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.  
          The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts.

 And yes, this equation offers up all sorts of confusions, contradictions, and uncertainties.  An article on the controversy in the online magazine Slate bears the title, The Pinocchio Project, and the subtitle, "Watching as the Supreme Court turns a corporation into a real live boy."  The Huffington Post, another online periodical, ran a humor piece entitled Supreme Court Ruling Spurs Corporation To Run for Congress:First Test of "Corporate Personhood" In Politics.   And here's what the most trusted man in America (since Walter Cronkite, at least in certain circles) had to say about it:

The Daily Show With Jon Stewart

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 Now, just to be clear about all this, the legal system does distinguish between a "natural person" (which is what the rest of us mean by "person") and "legal person" (which is the kind of person a corporation is deemed to be, as explained in the wikipedia entry on the subject), sometimes referred to as an "artificial person" as well.  A "legal person" is a "legal fiction" which in a sense means that it's a fictional person, I guess...

 So, person1 is not person2 after all.  Longtime readers of this blog (meaning anyone who read my last blog post, Be Very Afraid) may recall that this is an example of indexing, one of the extensional devices associated with general semantics, as a way to help us avoid the problem of identification that our language encourages.  

A legal person is not a natural person, it's all legal terminology that may confuse the rest of us, but not jurists, right?

Well, that's in question here, since the decision seems to be about extending to corporations the legal rights of natural persons.   As explained on the website called The Straight Dope, in response to the question, "How can a corporation be legally considered a person"

What most people don't know is that after the above-mentioned 1886 decision, artificial persons were held to have exactly the same legal rights as we natural folk. (Not to mention the clear advantages corporations enjoy: they can be in several places at once, for instance, and at least in theory they're immortal.) Up until the New Deal, many laws regulating corporations were struck down under the
"equal protection" clause of the 14th Amendment--in fact, that clause was invoked far more often on behalf of corporations than former slaves. Although the doctrine of personhood has been weakened since, even now lawyers argue that an attempt to sue a corporation for lying is an unconstitutional infringement on its First Amendment right to free speech. (This year, for example, we saw Nike v. Kasky.)

Unless lawyers and judges have some general semantics education, such as the esteemed Frank J. Scardilli, Esq., a longtime Trustee of the Institute of General Semantics who has discussed just these kinds of issues on many occasions, officers of the court are just as prone as anyone else to make erroneous identifications.  Call a corporation a person and you start to think of it as a person, and even if you started out with the distinction between the legal and the natural.  

Moreover, apart from the legal fiction, the very word corporation constitutes a metaphor of embodiment, the root corp meaning body, incorporation meaning to give the entity a body, to make corporeal.

Ordinary people to do not, ordinarily, think of corporations as persons.  We think of them as businesses, organizations, and several other things I cannot name here because Blog Time Passing is a family blog.  It's folks working in the legal sector that talk about corporations as persons, and are vulnerable to falling into the trap of identification, of thinking


when they should be thinking instead


 Legal logic, like symbolic logic, allows us to make equations that make perfect sense in that symbolic realm, that universe of discourse, that deductive system, but that do not match up to the reality that we know through our senses, and our common sense.  

The legal map does not correspond to the territory, and the response on the part of critics has been ridicule, and rightly so.

And so, we find ourselves asking questions, some serious, some laughable.

If a corporation is a person, can it be subject to criminal charges?  Actually it can, at least under some legal systems, although typically it's those natural persons who are corporate officers who are charged with crimes.  Corporations can be fined, and sued of course, but can they be imprisoned?  Can they be subject to capital punishment?  Perhaps by being dissolved?  Can they be arrested?

Can corporations vote?  Can they run for office?  Can they be drafted?  Are corporations citizens of a nation?  (They are, in a sense, the nation and state in which a corporation is incorporated.)  Can they immigrate and become citizens of another country?  

Can corporations marry?  The Jon Stewart segment suggests that the answer is yes, in the sense that they can merge.  So corporations can marry each other, but can they marry a natural person?  Could I marry Time-Warner, or Apple?  Could we have children together?  Well, maybe not in the biological sense, but maybe adopt?  Can a corporation be a parent, or legal guardian of a child?  (Isn't that what happened in the movie, The Truman Show?)

As persons, can corporations be owned?  Clearly they are, but does that make them slaves? Can they be freed?  (Many would say that corporations are our masters, not our slaves.)  We might well remember that there was a time when African-American slaves were not considered persons in this country, or at best 3/5 of a person.  Sadly, we have not always granted the status of person to all human beings. 

If corporations are artificial persons, does that mean that robots can also attain that status?  What is a corporation, after all, but a kind of intelligent machine whose parts include natural persons.  (I get this insight from Lewis Mumford, and for a foundational media ecology scholar's insights on this specific topic, see Peter Drucker's 1946 book, The Concept of the Corporation.)  It's science fiction, sure, but this line of legal thinking opens the question up, after all.

If corporations are, in a sense, fictional persons, can other fictional persons also have rights?  Like maybe Superman, Spider-Man, Mickey Mouse, and the like--except they are corporate trademarks anyway.  Maybe Santa Claus, or Johnny Appleseed, or Tom Sawyer, or Paul Bunyan?

No, no, this will not do, not at all.  I am reminded of a line from Kurt Vonnegut's novel, God Bless You, Mr. Rosewater.  In describing a fictional novel by the fictional novelist Kilgore Trout of a fictional future where suicide parlors have been introduced as a solution to overpopulation, he writes

One of the characters asked a death stewardess if he would go to heaven, and she told him that of course he would. He asked if he would see God, and she said: 'Certainly, honey.' And he said, 'I sure hope so, I want to ask something I never was able to find out down here.' 'What's that?' she said, strapping him in. 'What in hell are people for?'

 What in hell are people for?  It's a question we don't have to reserve for the afterlife, or for God, it's a question we can ask ourselves, right here and now.  

One of our central media ecology scholars, Walter Ong, described his philosophy as personalism, the philosophy of the human person.  And it certainly makes sense to me to say, forget about these categories of natural and legal persons, let's just talk about human persons.  And corporations are nothing more than extensions of human persons, meaning that they are inventions, technologies, media.

Of course, the whole reason why the doctrine of corporate personhood was adopted in the first place was to allow corporations to enter into contracts, to hire and fire employees, to buy and sell property, to be sued (which limits the liability of the stock holders and employees), and later to be subject to taxation.  

So, taking all that into consideration, if corporations are not called persons, what else might they be called?  What other entities, aside from persons, can enter into legal and economic transactions?  

The answer seems clear enough to me:  Sovereign entities.  States.  Nations. Governments.  Just as corporations are incorporated, made into bodies, states (along with other organizations) have constitutions, are constituted.  The parallels are quite clear, but also quite discomforting.  We quite rightly can be concerned, and fearful at the thought of the corporation as a sovereignty.  

But corporations already are states, in effect.  And rather than deluding ourselves with legal fictions of corporate personhood, let's work with the legal realities.  Let's talk about and think about and act upon corporations as nations.  We will be, sooner or later.  We can make treaties with corporations, and we can go to war with them if need be.

This would make for a map that would better correspond to the territory, and it may well mean that we'll need new kinds of maps as well.  A new way of looking at the world that we already are living in.  Korzybski, who was a severe critic of commericialism (see his first book, Manhood of Humanity) would undoubtedly approve.


Mike Plugh said...

Truly brilliant and eloquent. Thank you.

Bruce I. Kodish said...

I fully agree with Mike! Bravo for your important critique of this rather pernicious legal smoke-and-mirror game.

A few comments:
Anyone approving of the recent Supreme Court decision should have their faith shaken after reading your essay.

Re your statement, "We quite rightly can be concerned, and fearful at the thought of the corporation as a sovereignty. But corporations already are states, in effect. And rather than deluding ourselves with legal fictions of corporate personhood, let's work with the legal realities. Let's talk about and think about and act upon corporations as nations. We will be, sooner or later. We can make treaties with corporations, and we can go to war with them if need be."

Have you read Fred Pohl's and C.H. Kornbluth's novel, "The Space Merchants." They wrote it in the 1950s, if I remember correctly, and depicted a futuristic scenario of corporations as sovereign entities in frightening detail. Well, we're there, dude! Actually, we [humans on planet Earth] got there a while ago, marked perhaps when Benito Mussolini invented an interesting term for the kind of meshing of corporate interest [the interests of the individual men ruling the corporations] and government that he sought—"Fascism."

You concluded, "This [not fooling ourselves and others about the personhood of corporations and instead seeing and talking about them as sovereigns, nations] would make for a map that would better correspond to the territory, and it may well mean that we'll need new kinds of maps as well. A new way of looking at the world that we already are living in. Korzybski, who was a severe critic of commericialism (see his first book, Manhood of Humanity) would undoubtedly approve."

Korzybski would indeed approve. See also his extensive criticism of commercialism in Science and Sanity, pp. 42, 83f, 270, 295f, 305, 508, 517, 519, 521, 549, 555ff, 558, and 756.

Ben said...

Lance, I hope you'll turn this into an essay for ETC.