There’s been a lot of upset to our left this week over the perception that Citizens United recognized corporations as having the same rights as people. The gist of the complaints seems to be that this notion is deeply offensive – that putting creatures of statute on par with people somehow diminishes the latter.
This has led, unsurprisingly, to some pointed (but accurate) responses. Julian Sanchez made the point yesterday:
[A]s my liberal friends all seem to be indignantly announcing in the aftermath of the Citizens United ruling, corporations aren’t really people! They’re creatures of statute, and “corporate personhood” is just a convenient legal fiction. Which is fair enough, but also seems to miss the point rather spectacularly. As a practical matter, it is hard to imagine any constitutional liberty that could not be reduced to a hollow joke if we refused to count as an infringement any regulation that nominally targeted only the corporate mechanism for coordinating its exercise.
Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls. Fill in your own scenarios, it’s easy.
Ilya Somin makes the same point thusly:
On this view, the government would be free to censor the New York Times, Fox News, the Nation, National Review, and so on. Nearly every newspaper and political journal in the country is a corporation. If the Supreme Court accepted this view, it would have to overturn decisions like New York Times v. Sullivan and the Pentagon Papers case.
They’re both right, of course. The objection is not, of course, new – the movement to reject (or at least profoundly alter) the concept of corporate personhood has been around for some time. We just haven’t often seen it so loudly and frequently expressed as has been the case since Citizens United was handed down.
The impulse to reject corporate personhood has always struck me as arising from superficial analysis. As Messrs. Sanchez and Somin pointed out, if you extend the logic of the anti-corporate rights crowd only a step or two, the argument looks much different. And it isn’t enough to respond that the New York Times won’t be affected by overturning Citizens United because the First Amendment guarantees a free press. Either corporations can have rights or they can’t. If it’s illegitimate to recognize that they have free speech rights, it’s equally illegitimate to extend them the right guaranteed by another clause in the same Amendment. And if they have the right to non-interference with publication, they must perforce also have free speech rights.
At the core, corporations are just human constructs. We invented them to further our own purposes. They exist as concepts rather than physical objects, but have no more or less moral agency than any other human invention. Just as a gun or a piece of paper are, in and of themselves, neither moral nor immoral but can be used either way, so too are corporate entities morally neutral. It suits the purposes of people as individuals to concatenate into corporations. As such, the statutes that created them confered upon them such trappings of personhood as were necessary for them to serve the purposes for which we need them. To strip those away because one finds it distasteful would both short-sighted and profoundly destructive.
