June 30, 2014

Justice Alito, in Hobby Lobby, adds to the corporations-are-people discourse.

I have a corporations are people tag for a reason. Remember when Romney said those words? Much more at the tag. This is a discourse I have been following. The haters of Citizens United love to mock this idea, and it may have seemed especially mockable in the context of religion. (Can a corporation pray?!!)

From today's opinion upholding a corporation's challenge under the Religious Freedom Restoration Act of the contraception coverage requirement under Obamacare:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have ae a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
There is also some excellent discussion of why people might choose a for-profit corporate form when they have purposes other than just to make money:
Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both abenefit for the public and a profit for its owners.

103 comments:

SGT Ted said...

Corporations are organized by people. People don't surrender their rights when they incorporate.

That is more accurate.

Bob Ellison said...

The Professor noted that "There is also some excellent discussion of why people might choose a for-profit corporate form when they have purposes other than just to make money..."

On the Jersey Shore, there are Habitat For Humanity signs. They're building (or re-building) shore houses for people without housing!

It's always to make money, you silly goose.

Sam L. said...

Non-profits make money; they just spend it on themselves rather than stockholders. Or they go bust.

Lucien said...

Romney's fault was in not being lawyerly enough.

Corporations are persons, but they are not people.

Anonymous said...

Obviously corporations need to be treated as persons. Otherwise, how does the New York Times, CBS, NBC, ABS, Fox, etc, get away with 1st amendment rights?

Point this out to a lefty and they stutter and stammer because they haven't thought about their position. They've heard the joke on MSNBC, "Does Hobby Lobby go to Church! Har har har!" and they regurgitate it like dutiful drones.

YoungHegelian said...

The haters of Citizen United love to mock this idea, and it may have seemed especially mockable in the context of religion. (Can a corporation pray?!!)

Strangely enough, many of those folks who mock the idea that a corporation can pray don't mock the idea that a corporation can have not only a conscience, but a social one at that.

But, then again, all sorts of phantasies become palatable when they serve the revolution.

Saint Croix said...

If Scalia insisted that corporations are not people and babies are people, everybody's mind would be blown. That's how you avoid the political charge. Stick to text, Scalia!

Unknown said...

The sheer ignorance of the critics of the statement "corporations are people" is appalling, since so many of them are lawyers. The lawyers are the worst, because we as a group are so arrogant. I got into a Facebook debate with a friend who referred to corporate personhood as a dictum from a footnote. After I quoted Pembina Consolidated v. Pennsylvania, he dropped out of the thread. The kicker? He's a defense attorney who specializes in defending closely-held corporations in Arkansas. Me? I'm a street lawyer in Mississippi.

Corporate personhood is such a basic concept that it's ingrained in the law, in the operation of law, in the practice of law. Personhood is the essence of the Lockeian experiment that America has become. Corporations are people, however, who are legally incompetent- they have to act through attorneys and designated officers. Apple partook so much of the essential nature of Steve Jobs that it could not thrive without him at the helm, after they got rid of him. Corporations are ultimate chimera- they take on the character of the people who dominate them.

Whoosh. That's some stream of consciousness nonsense there.

jimbino said...

If corporations are people, people are so much more people.

It seems it will be easy for people to exempt themselves from paying for immunizations, blood draws, contraception, abortion, etc.

I myself have a religion that prohibits insuring for reasons other than to cover my liability to another party. I imagine that I could gain exemption from Obamacare entirely.

StoughtonSconnie said...

If I may provide the totally fresh liberal perspective:

Corporations are made up of individuals blah blah blah. Individuals have rights blah blah blah. But KOCH BROTHERS!

Ignorance is Bliss said...

I am not a laywer, but this concept seemed obvious to me since the discussions surrounding Citizen's United. I've reached the conclusion that the people who don't understand this choose not to.

Steve M. Galbraith said...

Justice Ginsburg argues that for-profit corporations - the men and women in those corporations - have no religious rights at all. Either under the RFRA or the First Amendment.

That's an astonishing claim. The government can place any requirement - contraception, abortion - on the corporation and, presto, there's no violation of religion.

It's her dissent, at least on this aspect, that is truly startling.

Saint Croix said...

They care more about money than about human beings. This was true when they said corporations are people in the 19th century (and racial segregation was okay). And it was true in 1973, when they defined the unborn as property.

It's a lie. As Alito admits, it's a "legal fiction." And it may be that Congress intended the RFRA to apply to corporations, I have no idea. But this idea that the equal protection clause applies to corporations? Liberals are right to scoff. Just as conservatives are right to sneer at the socialists who define human children as outside the law.

The Supreme Court has never gotten the equal protection clause right. They have screwed that pooch over and over.

mesquito said...

The Corporation For Public Broadcasting will not be amused.

Saint Croix said...

And I pick on Scalia because he's the smartest.

Is he smarter than a 5th grader, though? That's the question.

Saint Croix said...

While I got Scalia on the brain, I just bought his biography. And Ed Whelan just nuked it, I mean it's a crater.

I wonder if I can get a refund. I'm thinking of printing off Whelan's review and taking it to Barnes and Nobles with me.

You sold me a false book. This is a bad book. I want my money back.

Greek Donkey said...

Just occured to me, if corporations are people, isn't inevitable that robots are people too. Maybe not robots of today, but robots in the ot toodistant future. Ok, giving myself a headache. I want to go back to when people are the only people.

Patrick Henry was right! said...

It seems so obvious, I have never understood the lefty hysteria over this issue. The NY Times has rights protected by the 1st and 4th Amendments. It's a corporation. Rights for corporations are obvious. End of discussion.

Brando said...

Churches can't pray either, but nobody is arguing that churches don't have certain rights as entities.

Obviously the "corporations have rights" idea gets mocked when taken to extremes--for example a corporation can't run for political office or vote--but when you reframe it it makes more sense. Can individuals organized as a group retain their rights? Most liberals would say yes, particularly if you use a nonprofit hippie co-op as an example. (Imagine the police raiding the co-op's headquarters without a warrant, and then tell the hippies that the co-op doesn't have 4th Amendment rights because it is not a person. They'll spit up their wheatgrass!)

Now, they hate the idea that some profit minded entity gets rights too, but then there's no real line to draw a distinction. Some nonprofits are big and influential and some for profit corporations are small and struggling.

In the end, this case was not about women losing any right. No one is being denied anything, unless you think you have a right to have your compensation from your employer provided in the form of types of health coverage. But if you believe that, then you might also be an idiot and should instead be amazed you lived this long without getting stuck in a port a potty.

This case is about a business whose owners objected to a government mandate and asserted a religious objection based on another act of Congress. If you love government power and think any law that's inconvenient for exercising such power can just be ignored, then you'll hate this result. If you think government has been a bit too intrusive lately, you'll be happy at least five justices are doing their job and not just serving as political hacks for the powers that be.

Steve M. Galbraith said...

If corporations are not people, that is they have no constitutional rights, then it must be permissible for the government to forbid them from providing contraception in their healthcare coverage?

It has to go both ways, doesn't it?

Matt said...

That's just very well put.

It's a very difficult point to get across (especially in politics), but so vital to the notion of freedom.

Property rights, free association and rights of contract are REALLY what makes/made America what it is.

Our government is really just a system designed to HOPEFULLY keep those things in place; democracy is basically the least crappy option for doing so (This also goes into why "exporting democracy" is a foolish thing; it misses the whole point.)

Michael said...

The Left has this whole question completely backwards. Natural and legal rights (as opposed to civil rights) inhere to "persons" and not "people." A person is basically any entity that can sign a contract - most natural persons (ie people), sovereign persons (the Federal Government and the state governments), corporate persons operating under charters from a sovereign (for- or not-for-profit is irrelevant), and trusts and estates. People do not lose their rights because they choose to exercise them through other legal persons.

Not all people have these rights. Children do not have freedom of speech or religion. Prisoners cannot peaceably assemble without limitation. Old people declared incompetent cannot vote, etc. Legal rights apply to persons as defined by the law.

The Left cannot simply decide that rights belong to people they like and do not belong to people they don't like, but that seems to be their view.

Lem said...

"... hybrid corporate forms."

PBS?

Bleach Drinkers Curing Coronavirus Together said...

The best thing about corporations being people is that we can jail them for defrauding or injuring us. Oh wait...

MaxedOutMama said...

Thank you for your excellent and thoughtful coverage of this case - not just today but in the past.

James Pawlak said...

Corporations (Economic/service/green movement/Etc,) are voluntary associations of PEOPLE and have no less rights than each member of such organizations. This includes such militias as resisted British tyranny as Lexington in 1775.

Lewis Wetzel said...

None of the people on the Left are able to discuss Citizens United in a rational manner. The government explicitly claimed the right to ban the publishing of books it chose to ban, even to the extent of wiping the book from a citizen's ebook reader.
It's like Bush V. Gore that way.

Paco Wové said...

"I want to go back to when people are the only people."

You'll have to get off the Internet, for starters.

Drago said...

R&B's: "Rhythm and Balls said...
The best thing about corporations being people is that we can jail them for defrauding or injuring us. Oh wait..."

Kenneth Lay, Jeff Skilling, Andrew Fastow, Robert Gordon, the Adelphia crew, Dennis Kozlowski and Mark Swartz, etc.

You can always count on R&B/ARM/madisonfella etc to completely miss the point or draw a conclusion that is only 180degrees away from reality.

Saint Croix said...

The NY Times has rights protected by the 1st and 4th Amendments. It's a corporation. Rights for corporations are obvious. End of discussion.

That's an obvious rejoinder to the liberal argument and it is one that I've made myself.

Of course Citizens United is right. Of course corporations have free speech rights, and free press rights. It would be unthinkable otherwise. Can the government censor Google? Can the government censor NBC? The whole argument is absurd.

But our free speech clause is not limited to "a right for people to speak." If it did have that limitation, then we might have an argument.

The free speech clause, as written, is broader, much broader. Congress is stripped of all authority in this area. Absolutely stripped of power. "Congress shall make no law..."

Can Congress make it a crime for Koko to criticize the government? Fuck no. Koko has free speech rights. Lassie has free speech rights. Obama fell down a well? Fuck yeah he did.

Citizens United does not need to rest upon the idea that corporations are people.

And you can argue the same thing vis-a-vis free exercise. If the Catholic Church incorporates can the government start locking up cardinals? No.

Instead of adopting a "legal fiction" the Court ought to read and follow the law, as written. In First Amendment analysis, personhood is irrelevant.

In Equal Protection analysis, it's obviously relevant, since the word itself is in the clause. And a person, as any fifth grader would tell you, is a live human being.

Anonymous said...

how does the New York Times, CBS, NBC, ABS, Fox, etc, get away with 1st amendment rights?

Because the 1st amendment specifically says "the press"

MayBee said...

When President Michelle Bachmann' makes it mandatory for employers to cover gay conversion therapy, the lefties will finally get it.

Matt said...

@Jimbimo - "If corporations are people, people are so much more people.

It seems it will be easy for people to exempt themselves from paying for immunizations, blood draws, contraception, abortion, etc.

I myself have a religion that prohibits insuring for reasons other than to cover my liability to another party. I imagine that I could gain exemption from Obamacare entirely."

This may shock you but individuals already CAN exempt themselves from the law entirely (see specific exemptions carved out for various religious groups by the law).

Kirby Olson said...

The right is going to give all lib women the face of Sandra Fluke. Here's how it will go:

Hobby Lobby doesn't have to pay to support Sandra Fluke's foam or her abortions or pay for any of her sex toys say the Supremes. Sock it to me sock it to me sock it to me, says Fluke, but don't make me pay for my sex toys, or for my abortions or any of my diseases! I just don't want to pay! You have to pay, said the Supremes. Not Hobby Lobby! Or else get a hubby, chubby, and have a baby.

It's going to be a fun news cycle. It's the first time Scotus has thrown something to the right in some time. The left will go wild and probably say that men just want to control women's bodies. As if anybody can control Sandra Fluke's body!

Saint Croix said...

Just occured to me, if corporations are people, isn't inevitable that robots are people too.

C-3PO is not a person. But C-3PO has a right to speak. Or, more specifically, the government has no authority to censor him. The anti-censorship idea of the free speech clause is obvious. That's the primary objective of the clause.

The primary objective of equal protection is to guard humanity, and to keep the government from dehumanizing people or defining them as sub-human, or defining people as outside the law.

Equal protection has nothing to do with corporations, and everything to do with great atrocities like slavery or infanticide or murdering the handicapped.

The Supreme Court has it exactly backwards, because they are corrupt assholes who worship money. In fact I would argue this corruption is really obvious when you consider the study of law. Lawyers spend at least a year of their lives studying money. Contracts, Property, Torts, UCC, Corporations, Tax, Bankruptcy. Money, money, money, money, money, money!

They spend maybe a day thinking about the unborn baby, if that.

chickelit said...

Corporations are people
Like people are cells
Like cells are molecules
Like molecules are atoms, etc.

Where do you fit?
Where do you deny fitting?

Laws are for us and not for what's above or below us?
Whose laws? Nature's? God's?

Think higher, not lower.

Anonymous said...

"Because the 1st amendment specifically says "the press""

Excellent point!

So we can agree then, the constitution covers corporations. Corporations have rights, just like people have rights.

I got an idea. Let's call that corporate personhood.

Anonymous said...

"Of course Citizens United is right. Of course corporations have free speech rights, and free press rights. It would be unthinkable otherwise. Can the government censor Google? Can the government censor NBC? The whole argument is absurd.

But our free speech clause is not limited to "a right for people to speak." If it did have that limitation, then we might have an argument.

The free speech clause, as written, is broader, much broader. Congress is stripped of all authority in this area. Absolutely stripped of power. "Congress shall make no law..."

This is an excellent point.

Except, you forgot the rest of the 1st amendment, not just free speech rights and free press rights, but you forgot the "prohibiting the free exercise thereof" in regards to religious expression.

Why is that referring to people while the rest you point to is referring to everything, including robots?

deepelemblues said...

Corporations themselves are fictions. Like a lot of things we act like a real in certain ways to make things work. Bring me a piece of Microsoft. Not some of its property. You can't bring me a piece of Microsoft because it's an identity in our minds. Microsoft is just the name for an association of people working together to make a livelihood. That's most corporations but many have other purposes.

If the people who legally control these associations want to engage in speech and other actions outside the purely business sphere through the vehicle of that association, I'm not seeing where the need to restrict them to this great degree exists. Nobody (well almost nobody) complains about businesses spending money on charity and foundations and other good-pr-projects as a calculated expense towards getting a good image and more sales. Many, probably most corporations do these things because the people running them truly believe in such things as well. But political speech or corporations existing to further a belief? The awfulness of it. It must be to rob the people or do something else very wrong to them.

Modern corporations have coexisted and made no small contribution with the largest increase in income and living standards and the consequent consumption in history. Why would they want to pummel the geese that lay their golden eggs? Who really thinks corporate leaders sit around scheming to destroy the middle class, the largest number of consumers who buy their products or the products of companies they supply (and all the way down the chain)?

Fritz said...

"how does the New York Times, CBS, NBC, ABS, Fox, etc, get away with 1st amendment rights?

Because the 1st amendment specifically says "the press""

Using the language of the left on gun control, how does the word "press" relate to TV cameras and broadcasting? Why that's like equating a musket with an assault rifle.

PackerBronco said...

The corporations are not people meme (specifically for-profit corporations) is the logical extension of the "you didn't build that meme".

Since Hobby Lobby didn't really build their business, they have no rights outside of what the collective (ie the state) is willing to grant them.

Hobby Lobby must pay for abortificients because Hobby Lobby exists only at the sufferance of the state and for the goals of the state.

Saint Croix said...

Money is important. It's important to being a man. We need money for our wife, for our children. But when our society thinks corporations are way more important than our babies, our society is fucked up.

And when I say "way more important," I mean we have gone so overboard that we define corporations as people, and babies as property. We pretend our corporations are human beings, while we deny the humanity of our own children.

Rusty said...

OpenID madisonfella said...
how does the New York Times, CBS, NBC, ABS, Fox, etc, get away with 1st amendment rights?

Because the 1st amendment specifically says "the press"


And that was back in the day when all you needed to be "The Press" was a uh press and a stack of paper.
Hey! Sort of like bloggers today!

H said...

When I was a liberal in the late 60's and early 70's, liberalism stood (mostly) for freedom from government oppression. Yesterday two (apparently excruciating) losses for liberalism ruled that the government can't make people do things they don't want to do. Was this just a slow gradual slide, or was there a particular moment when liberalism switched sides?

Saint Croix said...

I wish liberals would take some of their insights about the evil of corporations and apply those insights to the government. If you're scared of centralized power and authority, of organizations run by a select elite, look at the government and what do you see?

Do you think the government monopoly is looking out for you?

And I wish conservatives would take some of their insights about the evils of government and apply those insights to corporations. If you're scared of centralized power and authority, look at a multi-national and what do you see?

I believe federalism and separation of powers is an insight about power and how it corrupts us. That's why we don't trust monopolies, why we want to break them up.

Breaking up a monopoly is similar to how the Framers broke up the government monopoly. The Framers created a separation of powers. And there is federalism. 51 governments, not 1!

The Framers did not trust government. They were the original trust-busters.

Look out for the government monopoly! Break that shit up!

Saint Croix said...

I might add too that when the Catholic Church had a monopoly, Christianity did some evil things. And the Protestant Reformation was very good for Christianity and good for the Catholic Church. I see the Catholic Church as a positive force for good in the world, maybe the best.

In my church, the Episcopal Church, which was formed so the king could get a divorce and sleep with another woman, we pray that Christianity will be reunited into one church again. I do not like that particular prayer, I think it is a bad idea. I like a doctrine of separation-of-powers for Christianity. It's good for us and good for the world.

madAsHell said...

Corporations are people?
Well.....who is going to subsidize their birth control??

tim in vermont said...

Wasn't one of the causes of the Civil War the South's disagreement with the North's idea of corporations?

Aren't people who oppose the personhood of corporations just apologists for racist slave holders?

Ignorance is Bliss said...

Saint Croix said...

In Equal Protection analysis, it's obviously relevant, since the word itself is in the clause. And a person, as any fifth grader would tell you, is a live human being.

The 4th and 5th amendments are written in terms of persons. Do you think the government can search a corporation's offices without a warrant? Can they confiscate corporate property without due process?

Ignorance is Bliss said...

Saint Croix said...

Stick to text, Scalia!

The text of the RFRA uses the word person. That term has a legal definition that was clearly spelled out at the time the law was written. That legal definition includes corporate persons.

If you follow the text the RFRA applies to corporations.

Paco Wové said...

"Because the 1st amendment specifically says "the press""

Synechdoche. Look it up.

Ignorance is Bliss said...

madisonfella said...

Because the 1st amendment specifically says "the press"

The Press that is mentioned in the 1st amendment is a machine for printing words on paper. It is not institutional journalism. Journalists have the same constitutional rights as anyone else, no more, and no less.

MadisonMan said...

Thank you for your excellent and thoughtful coverage of this case - not just today but in the past.

Total agreement. I understand this case so much better for what I've read here.

Tank said...

madisonfella said...
how does the New York Times, CBS, NBC, ABS, Fox, etc, get away with 1st amendment rights?

Because the 1st amendment specifically says "the press"


Ha ha.

Missed the point completely.

Tank said...

It's hard to believe both that:

1. Many people are treating this as a giant win.

and

2. Many people are treating this as a giant loss.

It's just a pimple on the ass of that giant Zerocare fiasco.

Brennan said...

President Never Was a Professor is the worst constitutional law instructor I have ever seen. Has any University of Chicago law student sued the University for fraud? Such a pity to have to pay 50K per year to attend lectures from such a hack.

Original Mike said...

"President Never Was a Professor is the worst constitutional law instructor I have ever seen. Has any University of Chicago law student sued the University for fraud? Such a pity to have to pay 50K per year to attend lectures from such a hack."

Forget his college transcripts. I would love to read his student evaluations.

Matt Sablan said...

You know how you know the media corporations are hypocritical about the whole "corporations are people thing?"

Ask them if a corporation can be compelled to divulge a source or be compelled to surrender its data without a warrant since corporations aren't people and are not protected from unlawful search and seizure.

Tank said...

MadisonMan said...
Thank you for your excellent and thoughtful coverage of this case - not just today but in the past.

Total agreement. I understand this case so much better for what I've read here.


And, when you read about this case elsewhere, or listen to pundits and "experts" and others talk about it, you realize what ignorant idiots they are.

Civilis said...

The Supreme Court has it exactly backwards, because they are corrupt assholes who worship money. In fact I would argue this corruption is really obvious when you consider the study of law. Lawyers spend at least a year of their lives studying money. Contracts, Property, Torts, UCC, Corporations, Tax, Bankruptcy. Money, money, money, money, money, money!

Most human interaction relies on voluntary transactions between human beings, i.e. commerce. Money is the default form this interaction takes. It's really complicated to regulate commerce, and therefore laws regulating commerce are complicated and much more likely to be vague and therefore something likely to require a neutral arbiter like a court to decide on the meaning of the law. Corporations are people because a corporation is a group of people.

Matt Sablan said...

"The best thing about corporations being people is that we can jail them for defrauding or injuring us."

-- You can sue corporations; if they weren't people, you couldn't sue them. You can also jail people for the crimes they commit while part of a corporation. See: Enron, Bernie Maddoff.

Saint Croix said...

you forgot the rest of the 1st amendment, not just free speech rights and free press rights, but you forgot the "prohibiting the free exercise thereof" in regards to religious expression.

Re-read my post, I mention free exercise! Congress has no power to abridge it. That obviously includes churches, right? And yet churches are not people. It's absurd to say a church is a person. But it's not at all absurd to say a church has free exercise rights. In fact it's absurd to deny it.

I have not looked at this case, and offer no opinion on it. My point is that the liberal argument "corporations are not people" is in fact correct. That is a textually and intellectually rigorous point, and I agree with the liberals who make it.

But it's not relevant in 1st Amendment cases. The First obviously protects newspapers, churches, all sorts of non-persons.

As a political matter, I do not think conservatives should adopt a ridiculous ("corporations are people") argument. Romney tried that and it was embarrassing. We should be mocked for this. It's a stupid thing to say.

I think we should stick to the text. Fidelity to the Constitution that we want to marry.

We can say churches and newspapers are made up of people, it's just large groups of people. But that's not exactly right. Corporation is a legal entity that is created (in part so people cannot be sued!)

A corporation is not a person. And a "legal fiction" is the polite way of describing a lie. Might be a good lie or a smart lie, but it's still a lie.

Saint Croix said...

Do you think the government can search a corporation's offices without a warrant?

That's a very good question. I would want to hear oral argument on it, and read briefs.

What we're talking about is how broadly or narrowly you read a particular provision. The First Amendment is written very broadly, in absolute terms.

The Fourth Amendment is much more narrow, it seems to me, and more complicated. You're right, it specifically says persons. You could read that provision as worried about invasions of our homes.

I know I'm an opinionated guy but I don't have an opinion on this. I'd want to hear argument and read up on it and talk about it with other people. How narrow is the Fourth? How broad should we read it? I'd want to re-read Amar's book.

Can they confiscate corporate property without due process?

As for the Fifth Amendment, I would read this bit:

nor shall private property be taken for public use, without just compensation.

to be broader than just individual persons. The 5th starts talking about people and criminal prosecutions. But the takings clause is about civil stuff, and it seems broader to me. You can't take private property without just compensation. I think that obviously protects corporations.

I do not agree that we have to say corporations are people.

Saint Croix said...

You can sue corporations; if they weren't people, you couldn't sue them.

I don't think that's true Matt! It depends on the jurisdictional statute. I believe the "legal fiction" was adopted so the federal courts could butt in. They expanded the federal jurisdictional statute so they would have access to the federal courts.

I say, instead of adopting a "legal fiction" just follow the damn statute. If the statute is bad they can write a new one. It's not the job of the courts to fix statutes and re-write them so we like them more.

Mrs Whatsit said...

Corporation is a legal entity that is created (in part so people cannot be sued!)

Wrong. Try to think it all the way through, Saint Croix, and you might realize just how backwards and upside down your thinking on this subject is. One of the most important reasons why the corporate entity is treated as a person by the law is so that people injured by the corporation's activity can sue the responsible entity and aren't stuck with having to sue individual people. If you get driven off the road by an Exxon truck with bad brakes driven by a negligent Exxon employee, you don't want to sue the lousy driver, you want to sue Exxon -- which 1) has lots more money and good insurance and 2) is responsible for putting the defective truck and lousy driver on the road in the first place in order to do Exxon's business. If not for the corporate fiction that makes Exxon into a "person" that can be held legally accountable, you'd be stuck with suing the driver (who couldn't afford good insurance even before the accident and is now laid up in a rehabilitation facility and going bankrupt without his truck driving job) and trying to figure out which Exxon executives sent him on the trip and failed to fix the truck, and whether any of them have enough money to be worth suing. Good luck with that.

Mrs Whatsit said...

I believe the "legal fiction" was adopted so the federal courts could butt in. They expanded the federal jurisdictional statute so they would have access to the federal courts.

Your ignorance on this subject is jaw-dropping, Saint Croix.

SGT Ted said...

I've had a shadenboner all day watching the left lose their shit over this ruling.

Paco Wové said...

"I do not think conservatives should adopt a ridiculous ("corporations are people") argument. [...] It's a stupid thing to say."

It's the goddamned law of the land.

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

I am slowly coming to the realization that most Americans are so ignorant of the basic legal foundations of this country that they are incapable of being responsible citizens.

Saint Croix said...

If not for the corporate fiction that makes Exxon into a "person" that can be held legally accountable, you'd be stuck with suing the driver

Where is it written that you can only sue people?

You think the left is arguing that we can't sue corporations? Ha!

Try to open your mind a little bit. You can sue corporations, corporations can be sued, corporations can write and enforce contracts. You can do all of those things without adopting a legal fiction that a corporation is a person.

Here's a simple jurisdictional statute: "You can sue corporations."

So please do not tell me that we have to lie about words. Particularly in Constitutional law! New statutes can easily be written. Amending the Constitution is insanely difficult.

Saint Croix said...

Your ignorance on this subject is jaw-dropping, Saint Croix.

I'm not a corporate lawyer. It bores me. But I also know that conservatives do not get to adopt "legal fictions" and impose them into the Constitution and then take the high road when liberals are jumping up and down about what a lie it is.

It is a lie. You want to give us all a parade of horribles if we don't adopt the lie. Okay. But it's still a lie, and your parade of horribles doesn't change that fact. When liberals say, "Liar!" and all you can say is "I'm writing fiction," you've lost the argument.

And it's a stupid argument. Just insist that corporations are not people (because they're not!) and let liberals worry about the corporations that can't be sued. Call their bluff.

Saint Croix said...

It's the goddamned law of the land.

Yes, thank you! That's my point. It's quite easy to write a statute that treats corporations as people.

But that does not mean that the people who wrote and adopted the Bill of Rights, or the Reconstruction Amendments, were talking about corporations. You have to be careful. Read and interpret each clause.

And the Supreme Court admits it's a "fiction." That's like saying, "I'm a white liar" while people are jumping up and down, calling you a liar.

Where are our "strict constructionists"? This is not a very strict reading of the Constitution. It's sloppy and overbroad and admittedly dishonest, adopted for economic purposes, which is to say, political purposes.

Abandon it! And recognize the humanity of our babies while you're at it.

n.n said...

Saint Croix:

It is strange to classify corporations as "people". Corporations are monolithic entities representative of people, and as such take on certain characteristics of its constituent parts, but they are not people. Corporations are families. In fact, a family is a closely held corporation.

Lewis Wetzel said...

What do you think a person is, St. Croix?
What do you think the founders thought a person was?
It may be that your understanding of what is and what is not a person is faulty.

Paco Wové said...

"That's my point. "

It didn't seem that way to me, but if you say so...

"It's quite easy to write a statute that treats corporations as people."

And we have. It is part of the foundation, the very first article, of the U. S. Code.

You want to replace it, fine. How are you going to rip out this part of the foundational legal fabric without producing legal (and economic, and political) chaos?

By the way, everything you wrote after what I quoted above struck me as a string of non sequiturs.

n.n said...

Terry:

A person's constituent components are no longer a person. A corporation, if a person, can be divided into its constituent components which are persons. Classifying a corporation as a "person" creates a logical paradox. The correct metaphor for a corporation is "family."

Mrs Whatsit said...

Saint Croix, good lord, stop writing, man! I have rarely seen such a thorough self-beclowning as the one you've already pulled off on this thread, and with each new post you make it worse and worse. I'm telling you, you do not understand this thing (and trust me, it was not necessary to explain that you aren't a lawyer -- we can tell.) Really, you should learn something about this subject before writing any more about it. You could start by looking up "corporate personhood" on Wikipedia, which will disabuse you of almost every single half-baked notion you hold on this subject, including your touching and loony belief that it's somehow a "conservative" idea.

Mrs Whatsit said...

You could also look up the difference between a "lie" and a "fiction," while you're at it.

Saint Croix said...

Corporations are families.

Maybe in Japan! I have no loyalty to a corporation and I do not confuse them with my father or my mother.

Liberals get all sorts of mileage out of playing up how human they are and how monstrous right-wingers are. "You're a corporate tool!" Why play their game? Why allow them such an easy win?

Do you not see how saying "Microsoft is a person" is rather a creepy thing to say? It's dishonest. It's Orwellian. And it's pointless. Stop saying it. Stop fighting that fight.

Conservatives and libertarians should be cognizant of dehumanizing language and avoid it. "Corporations are people" is a stupid argument politically, and utterly unnecessary as constitutional law, and a bad reading anyway.

Technically this is the flip side of dehumanizing language. You're trying to humanize the corporation, which is like saying "big brother" about the government. You see the problem?

Saint Croix said...

A person is a live human being. That's how I know babies are people and corporations are not.

Lewis Wetzel said...

Yes Paco, I believe that St. Croix has a biological creature in mind when he defines 'person'. I doubt that this is how the law in the 18th century defined a person.
I am not certain of this, but I think that the legal definition of a person, in those days, had "agency" as a person's most important feature.
A "legal fiction" is more than a lie we pretend is true. An estate is a legal fiction as much as a corporation is a legal fiction.

Saint Croix said...

You want to replace it, fine. How are you going to rip out this part of the foundational legal fabric without producing legal (and economic, and political) chaos?

Paco, you miss my point completely. I'm making a procedural argument about how you read and interpret words. Also I am making an important point about our Constitution, vs. statutory law.

You quote a statute as if that governs how we should read our Constitution. That is not at all how I read our Constitution.

The word "person" has an obvious, dictionary meaning. It's a live human being, a man woman or child. That's how I read the word, vis-a-vis our Constitution. I believe the people who wrote our Constitution used that word in the ordinary, common sense understanding of what a person is.

A statute can expand or contract that definition, offer a new definition. You can call dogs people if you want. And it becomes a legal term of art. Okay?

But the word "person," in the Constitution, is not a legal term of art. And the Supreme Court does not have permission to rewrite the word and give it a new meaning. And it's quite dangerous when the Court acts this way. See Roe v. Wade and Dred Scott v. Sandford

jr565 said...

Clearly the left is wrong on corps being a person. They are hung up on the word person as opposed to understanding the context of the word as it applies to corporations.
This is really settled law though. And so, Why they are having such an issue with it and why they'd give Mitt Romney guff over making the point as if he were arguing some crazy argument is beyond me.

Lewis Wetzel said...

"But the word "person," in the Constitution, is not a legal term of art. And the Supreme Court does not have permission to rewrite the word and give it a new meaning."

But the people who write dictionaries do?

This source gives 7 definitions of "person":http://www.merriam-webster.com/dictionary/person

including "one (as a human being, a partnership, or a corporation) that is recognized by law as the subject of rights and duties"

Paco Wové said...

"You quote a statute as if that governs how we should read our Constitution."

Well, how would you say the person who wrote the following:

For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company.
Protecting corporations from government seizure ... protects all those who have ae a stake in the corporations’ financial well-being.
And protecting the free-exercise rights of corporations ... protects the religious liberty of the humans who own and control those companies.


is reading the Constitution, with regards to that statute?

jr565 said...

Corporations have the right to name themselves pay taxes, sue other corporations and conduct business JUST like people do. So in that regard they are persons.
But they are not flesh and blood people and can't for example marry, though you can have mergers of one and more companies.
Saying corps are persons for those purposes is simply the laws way of describing those rights which corps share with persons. Not too complicated.
Should they change the wording to something other than persons so as to avoid confusion? Perhaps.

Saint Croix said...

Saint Croix, good lord, stop writing, man! I have rarely seen such a thorough self-beclowning as the one you've already pulled off on this thread, and with each new post you make it worse and worse. I'm telling you, you do not understand this thing (and trust me, it was not necessary to explain that you aren't a lawyer -- we can tell.

Mrs. Whatsit, you made an error that's easy to make. I said, "I'm not a corporate lawyer." A careful attorney would know that there are all sorts of attorneys. There are criminal attorneys, civil attorneys, tax attorneys, divorce attorneys. I made a narrow statement. You read it in an over-broad fashion.

You're making the same mistake in this thread. My point is that saying that a corporation is a person in one (statutory) context does not mean we should read the word "person" that way in all contexts. And particularly not in a Constitutional context, since that is our highest law and it is very difficult to amend.

It is wrong to insist that the word "person" has to include corporations. It is not only wrong, it is counter-productive and stupid politics.

Mrs Whatsit said...

"And the Supreme Court does not have permission to rewrite the word and give it a new meaning." When is it that you think the Supreme Court did this? If, for instance, you're referring to the Court's decision that the word "person" in section 1 of the Fourteenth Amendment includes private corporations, that happened in 1888. How come it took you so long to get so worked up about it?

Michael McNeil said...

The word “person” has an obvious, dictionary meaning. It's a live human being, a man woman or child. That's how I read the word, vis-a-vis our Constitution.

Dictionary.com: person: 11.
Law. a human being (natural person) or a group of human beings, a corporation, a partnership, an estate, or other legal entity (artificial person or juristic person) recognized by law as having rights and duties.

Mrs Whatsit said...

Actually, I saw that you wrote "corporate lawyer," not lawyer, and also saw in your blog profile that you claim you used to be a lawyer once. You don't, however, claim that you're a lawyer now, and if you ever were -- a possibility that seems highly unlikely in someone who has as much trouble comprehending the basic concept of a legal fiction as you do -- you have obviously forgotten a lot.

As for the other "mistake," I understand the point that you think you are making. Your point, however, is based on so many mistakes and misunderstandings about the law in general and the concept of corporate personhood in particular that it would be a waste to try to point them all out. As I said before, go educate yourself. If you ever did get through law school, you ought to be capable of it.

Saint Croix said...

Mrs. Whatsit, I wasn't alive in 1888. But if I was, I hope I would think it odd or strange that the Supreme Court was using the 14th Amendment to protect corporations, and not black people.

And lots of people have made this complaint. I grant you that most of them are liberals. But it's a valid complaint, as I see it.

I agree that lawyers are taught in Corporations about the legal fiction. And people who think of lawyers as people who dictate rules to the rest of humanity might be okay with insisting that people means corporations.

But the Constitution is framed as a populist document. "We the People." Do you seriously want to rewrite that to mean "We the Corporations"? And even if you think that's a legally valid thing to do, doesn't it strike you as political suicide?

Let a statute say that corporations are people. That's fine. I'm not complaining about that. My complaint is about how we are reading the Constitution.

And I'm not complaining about the Hobby Lobby case. I haven't read it and I don't know what the statute says. If the statute says "corporations are people," (like Paco's link) then I think the majority is right. But if they are adding "corporation" to every legal document that is talking about people, that is legally dubious and politically stupid.

Saint Croix said...

I should say too that I am a tea party Republican. I am a pro-life Republican. These are populist movements that have responded with outrage to what our government has done. Okay? The tea party movement has captured the populist flag and we ran off with it. We don't give a shit about corporations. We all have jobs, and we work for them, but damn if we want to take a bullet for them.

It is clear to me that there are zero tea party Republicans on the Supreme Court, just as there are zero pro-life Republicans on the Supreme Court. We are up to our ass in establishment Republicans on the Supreme Court. And if you think establishment Republicans are popular, I don't know what to tell you. Get your head out of your ass.

If the vast majority of people think corporations are corporations and people are people--and that is what I think--then you can smirk and look down on the non-lawyer rubes all you want. "We've got the Supreme Court, ha ha."

How long do you think you can keep it?

Lewis Wetzel said...

Corporations are sometimes considered persons, but never people.
I literally cannot understand your complaint, St. Croix. Does the NY Times get free speech protection? NPR? PBS? Yahoo corp? Just the news divisions of the major networks, or their entertainment divisions as well?

Saint Croix said...

I literally cannot understand your complaint, St. Croix.

We are talking about an institution who has murdered innocent people. And they say it's not murder because the people were defined as non-people.

The Supreme Court has been glib and stupid and dishonest about the word "person" forever. This is nothing new. They defined black people as non-people and babies as non-people. They've said corporations are people. I'm sick of the dishonest way they talk about this word.

Mrs Whatsit said...

Whatever, Saint Croix. You're a pro-life populist Tea Party Republican who's outraged because the Supreme Court said that the government can't force Hobby Lobby's pro-life conservative owners to buy abortifacient contraceptives for Hobby Lobby's employees. (We'll just set aside the fact that the decision is based on a statute, not the Constitution, for now.) To you, this is somehow an overweening outrage; you think it would be a good thing to allow the government to force Hobby Lobby to finance what its owners believe are abortions for its employees. Somehow, refusing to allow the government to override the owners' religious freedom just because the owners organized their business as a corporation is "taking a bullet for a corporation." I don't understand your reasoning. But believe what you want.

But just consider one thing: if, in your mind, it isn't people who take corporate actions and speak on behalf of corporations, then who is it? Space aliens?

Jason said...

I'm with Mrs. Whatsit. Croix, you're off your bleedin' rocker on this one.

Saint Croix said...

You're a pro-life populist Tea Party Republican who's outraged because the Supreme Court said that the government can't force Hobby Lobby's pro-life conservative owners to buy abortifacient contraceptives for Hobby Lobby's employees.

You think it would be a good thing to allow the government to force Hobby Lobby to finance what its owners believe are abortions for its employees.


That's result-oriented reasoning. I'm not talking about the result in the case. I'm talking about the definitions of words. I"m talking about process.

What is a person? A live human being. When has the Supreme Court gotten away from this definition? Dred Scott and Roe v. Wade. When has the Supreme Court most upset the American people? Dred Scott and Roe v. Wade.

The word "person" is important! Pay attention to it!

I'm not outraged at all about this case. I haven't read the frickin' case. I'm certainly not mad about the result in the case.

But I am mad, hopping mad, about the way the Supreme Court talks about the word "person." And I can imagine all sorts of populist anger, from the left, over this case.

Don't confuse their anger with my anger. But this anger is coming from the same place. We feel like we are being disregarded and ignored by our authorities, who are using their authority to dictate shocking readings of words.

Did you see Romney try to say that corporations are people? How did that work out for him? Sometimes what seems obvious and certain in a law school classroom does not play very well with the American people.

Saint Croix said...

Democrat: "I'm mad because our authorities say that corporations are people."

Republican: "I'm mad because our authorities say that babies are not people."

Think about this anger and how to resolve the conflict, which is what our lawyers should try to do.

Saint Croix said...

Do you think the government can search a corporation's offices without a warrant?

I've been thinking about this question. Here's a hypothetical.

Let's say the government invades the offices of Microsoft. The government is spying on Microsoft, and the corporation wants to sue under a statute that protects people from unreasonable searches or seizures. And the Supreme Court holds, "corporations aren't people, sorry."

Can the people still sue? Of course! Can Bill Gates or Steve Ballmer or whoever sue? Yes. If their personal privacy was invaded, of course they could sue. That would be 9-0, right? And that litigation would go forward. These citizens would have to prove damages, that they were personally damaged by the government's invasion of privacy.

But they would clearly and unmistakably have access to the court system and would be protected from any 4th amendment violation.

That's if we read the 4th Amendment narrowly, to protect people privacy, and not corporate privacy. I would still like to hear argument on it! My mind is not made up.

(In the area of the 1st Amendment, of course corporations have a right to speak, that's obvious).

I think careful, clause by clause work is needed here. Some Constitutional provisions might protect corporations, others clearly do not.

What about the people who are upset, or shocked, that the government is spying on corporations? We can fix this upset by voting Republicans into office, changing the statute, and allowing corporations to sue the government for the invasion of corporate privacy.

In other words, I do not think that denying the humanity of corporations (at the Constitutional level) is an awful or unthinkable argument. It's unthinkable in regard to free speech. But invasion of privacy? In a clause that is talking about "persons" and "homes"? I'm open-minded on the idea that this clause might not protect corporate secrets.

n.n said...

Saint Croix:

I will guess that your concern is that when common language acquires additional or expanded meaning (e.g. slang), it creates an ambiguous perception of the original intent. Thereby confusing the issues to which it is applied, often with nefarious purpose.

As for corporations, there really was no need to conflate their nature and character with individual human beings, even if corporation exhibit or express characteristics (i.e. metaphor) of its constituent parts (i.e. people). I can only surmise that this strategy was followed as a trivial way to settle a conflict. We have been the witnesses of consequences that liberal use and abuse of language has engendered. Not nearly so trivial after all.

Anthony said...

Question: Is this idea of corporate personhood not a new thing? I was given to understand that corporations were already regarded as 'persons' for various other purposes, one of which was the ability to sue a corporation as an entity rather than the individuals making up that corporation. If you took away that "personhood" you would pretty much give up your right to collect damages from the corporation which would pretty much screw the pooch since one or a few individuals given to be responsible would have no resources for any sort of meaningful renumeration.

Mrs Whatsit said...

Anthony, it's not a new thing at all. All that's new is the sudden ginned-up outrage of the professional left and, for some reason, people like Saint Croix. The idea of corporate "personhood" goes back to the early 19th century in this country and shows up even in the names we use for the organizations -- a business "incorporates" (that is, forms into a body) when it becomes a "corporation" (or embodiment.) The concept really isn't designed to protect corporations at the expense of people; just the opposite, it's about protecting the people who make up corporations and the people who do business with them and might be injured by them (so, for instance, as you point out, injured people can sue the business and don't have to worry about finding the responsible individuals in some huge unincorporated association.)

Also, the Supreme Court's many rulings that the word "person" in sometimes includes corporations are not dependent on some crazed fantasy that a corporation is actually a human being, as Saint Croix imagines. Instead, the Court is just recognizing that a corporation is nothing more than a group of actual living people who take actions and make decisions on the corporation's behalf. These people, the Court reasons, don't sacrifice their Constitutional rights when they organize as corporations; they keep at least some of those rights, but when they act as a group on behalf of the corporation rather than their personal selves, the law uses a fiction to attribute those rights to the group corporate "person" -- even though the rights truly belong to the human beings who actually exercised them. This idea may be over Saint Croix's head, but it's not really that hard and I think people like him are willfully refusing to understand. Romney was right: corporations ARE made up of living people, no matter how much people who want to gin up hatred for them would rather pretend that they are robot automatons lumbering across the landscape with no human involvement. The idea that the corporation itself has a legal identity as a person is called a fiction for a reason -- but that doesn't mean real people and the rights of real people aren't actually involved.

Lewis Wetzel said...

"What is a person? A live human being."
Now it is you who are simply inventing definitions to suit your argument, St. Croix. There is more than a single definition of the word "person".
Each element of the Christian Trinity is defined as a person (in fact, a Christian would argue that the human idea of "person" is modeled after the persons of the Trinity, not the other way around). You want a legal definition of a person? Howabout the word as defined in US code 1 article 1:
"the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"

You will not simplify US law or legal arguments by radically changing this definition based on your own peculiar ideas of what a "person" is.
I am not misunderstanding your position, I understand it perfectly.

Unknown said...

Fascinating insight. Some of these comments actually belong in the article too though. Some real interesting opinions.

Sara @ simpleNewz