JULY 2, 2012 5:32PM

Why It's Important that Corporations Are Fairly Legal Humans

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Arguing that corporations should be legal persons isn't very popular, although Pol Pot and Stalin and Mao were popular, right until the lack of any restraint on govermental power wielded in the name of the People got a lot of people killed, in Stalin's case by a belief that central planning could determine agricultural output and distribution more efficiently than the New Economic Policy of basically market driven agriculture, a belief which killed five million people by famine.

See The Harvest of Sorrow for details.

That's not an argument for pure laisse faire either, and in fact no modern country does not intervene some in agricultural markets, although very often with rather perverse results, like paying people not to grow crops and punishing them if they did so to feed their own family, the latter an example cited as the ne plus ultra of the Commerce Clause, if something that ought to scare people as to its implications of the State being allowed in theory to starve someone to death.

That was also something of a weird case, and hard cases make bad law.

But as to corporations, the Left has made much hay lately of smashing corporate power without considering any of the history of why it is that corporations came to be legal persons, if the Right ought to take more seriously the "agency issues" of corporations too. (The agency issue with corporations as usually discussed by economists is that the Agents are the managers of the firm, tasked with maximizing the Principals, the Shareholders usually, utility, although with imperfect monitoring, that might not always be the case. For example, if bonus structures are too short term, one might have a JP Morgan trader find it in their interest to gamble with firm money in a way that is adverse probabilistically speaking to shareholder interests, which is why there are reasons to regulate corporations, if carefully.)

As to why we have corporations as people, in English law, originally it took an act of Parliament to make a corporation, say to pool resources to build a toll road or bridge.

That is why the corporate form exists in no small measure, to achieve objects that individuals would be very unlikely to achieve on their own, even if Adam Smith identified, correctly, other problems that emerge with corporations as to Agency issues, if he overestimated those problems as to evolutionary fitness.

In any event, because Parliamentary acts were required, and later in their American descendants State bills of incorporation were required, there was much corruption of legislators, since there was enough money on the table as to net profit to make it worthwhile bribing legislators to pass the acts.

Unless you think that the State should allocate all Capital, like Stalin, then having many actors pursuing their own interests is safer, since their interests won't always coincide. What is good for hospitals for example is not the same thing as the drug industry, since much of what they do is potentially rivalrous in character.

That doesn't make corporations democratic internally,  in fact far from it, but preserving many different centers of power is better than one center of power as to preventing Stalin.

Eventually, the English realized the corruption of the way economic entities were created under the corporate form, and allowed for free incorporation as to not requiring anything more than a simple legal procedure. The United States adopted this mainly by the example set by Justice Story in Massachusetts in the 1840s, although Marshall set the ball rolling in the Dartmouth case, because every university is a corportation too, which most economic historians would agree helped facilitate the industrialization of the United States.

Maybe the Amish were right, although if we try to reverse that process, one would expect the population to fall dramatically too.

The formalization of the notion of corporations as legal persons was somewhat curious as to having rights protected under the U.S. Constitution.

Santa Clara v Southern Pacific Railroad (1886) is usually regarded as the central case, if it was somewhat obliquely addressed.

Something so deeply rooted in American history ought to be treaded with grave caution. One could argue that a very narrow Amendment to limit campaign contributions by for profit entities would be feasible to do without creating the Soviet Union, although to totally abolish the legal personhood of corporations would be a truly awesome step as to taking away any freedom of association, as Planned Parenthood is a corporation, as in careful what you ask for with all this enthusiasm lately of abolishing the legal personhood of corporations.

finis

 

 

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You're right. People don't realize that the push for general corporation laws--that is, freely available to everyone without seeking favors from legislators--was a reform of the Progressive Movement.

Another reason (which I haven't seen discussed elsewhere), if corporations are legally people you have to join all stockholders in a lawsuit. With corporate personhood you just need to get one defendant in court to be able to mulct them in damages. If you had to bring in all stockholders as necessary parties, you could never sue anything but mom-and-pop corporations, who don't have the deep pockets.
all fine, but with globalization & info technology, corporations have morphed/transmogrified into a new frankenstein monster more powerful than governments. more in my blog... look at goldman sachs or jp morgan as case studies. which in failing to mention, is a conspicuous omission. I mean dude, you dont even give the "con" side at all. so while highly erudite & historically informed, this verges on propaganda.
I became a corporation once. It is a big hassle and I'd wished I had not done it. Liability is horrific. I think I still am under Dianne Lindsey's Curtain Call
Don, there is a difference between non-profits and for profit corporations. Most important, the corrupting influence of corporate money in politics has to be weighed against the money as free speech argument.
I just see a lot of people out there saying "Abolish corporate personhood," and for me it's like, "Hold on a second there. Careful about babies and bathater."
Hi onislandtime. I understand that corporatations raise governance issues, which is why regulations have a place, weighing things. I think the free speech argument is one people may have overdone, as barrier to entry are pretty low now, sort of, if universitites raise them in other ways per their Guild system.
Hi Con. Thank you for coming over both, and nice to see you vzn too. JP Morgan is a classic agency issue, if whether or not that means more than that I think remains to be scene other than caveat emptor as a decision rule. Some people think sometimes regulations actually make people not think as much, since it's supposed to be safe. Maybe that's too far too, although in that particular case, reporting under different distributions statistically would have avoided a lot of problems.
The legal fiction of "corporation as person" originated at a time when no one could have envisioned the vast size and power corporations would eventually attain, nor the ways in which they would be able to corrupt and warp our economic and political systems. At that time, corporations were created by and existed at the sufferance of a nation, and could easily be dissolved any time said nation wished to do so. Now, however, we live in an era when corporate entities have such immense, nearly unfettered influence that they severely distort and warp our economy and our political system, by, for example, doing everything within their power to ensure that candidates are elected who are beholden to them and will do their bidding once in office, and by basically dictating that whatever legislation Congress creates will maximize their profits. Remember, a corporation is legally required to generate profit, so in the "mind" of the corporate person, profit takes precedence over morals, ethics, basic decency, loyalty to the nation, or any other factors which a genuine (human) person might take into account when deciding on a given course of action. We have now reached a point (and it was greatly exacerbated by Citizen's United) where there is, for all intents and purposes, a two-tiered definition of personhood in this country - one definition is genuine humans like you and I and the tens of millions of our countrymen; the other definition consists of corporate persons, of which by far the most powerful members are the 2 or 3 thousand corporations which, unlike you and I, are essentially immortal, have annual budgets exceeding those of most nations, and which can bring far more resources to bear (on influencing the outcomes of elections for instance), than any merely human person or any of the organizations such as unions and others representing our interests, can ever hope to match. The ever-increasing influence of and misuse of corporate power, which is in part empowered by the legal fiction of corporate persohood, is far and away the greatest threat to our nation and to our liberty, and it puzzles me when apparently rational, well-informed people can say that this absurd and massively abused legal construct is a good thing. It is absolutely toxic and corrosive and harmful to our democracy, and it is anathema to anyone who prefers a representative form of government rather than a corporotacracy and to anyone who does not believe that free speech is the same fucking thing as piles and piles of money which, as our system is now set up, results in profoundly corrupt governance at every level from local to state to federal.
Interesting thoughts, Don. You've caused me to go do a bit of reading, and I discover that before corporations were viewed as legal persons, it was impossible to convict corporations of some kinds of crimes, such as those that involve some kind of intent. (The legal terminology is subtle, and I don't know if I understand it completely.) If a law defines homicide in terms of one person killing another, then unless a corporation is a person, that law doesn't apply.

But I'm with a few other commenters here, including you and Drew-Silla, in thinking that corporate personhood goes too far in the area of speech. I don't think any individual's right to free speech is abridged if a corporation isn't allowed to do some sorts of things. Also, I see difficulties where responsibility for some act is so diluted throughout a corporation that it can't be attributed to individual people; I've read about court cases where I've thought, "If a real person did this, it would be a crime," but the corporation was only subject to civil penalties. There's an asymmetry in legal punishments for bad acts.
It's nonsense that you have to make corporations legal people in order to have any of the desired effects for which legal personhood was created. One could simply create legislation that established what corporations could do.

As an example, perhaps you want them to sign contracts? Fine, just say “A corporation can sign contracts as if they are people.” But saying they are people goes well beyond that, creating implied new rights such as the recent and much more questionable rights to both speech, privacy, etc. These are not by any means necessary for businesses, and anyone who thinks they are should have to propose these rights individually.

Same for protection from suit, which could be accorded without it being a Cable TV style package of channels you didn't want but were forced to take because the channel you want is not offered a la carte.

Those who oppose corporations as people are not in most cases saying that they don't think a company should be able to borrow money, they're saying don't make the price of that be that we contort the dictionary, common sense, and the political system to conform to contrived needs not relevant to the actual need you're trying to achieve. Overturning the concept could be done by passing legislation saying “Hey, they're not people but they are still able to ...” and then the necessary things could remain stable while the ridiculous stream of newly invented implications was cut off.
Hi Rob. Part of the reason one could favor some forms of free speech for coprorations is that they are an interest group like any other, if employees are a mixed bag compared to shareholders, and there are agency issues as to is management serving only themselves, something Adaam Smith warned about, as to governance laws of corporations.
Havign said that, if you had individual accounts on Sovial Security, that would in theory have the potential to alingn management and labor interests better, as to what's represented when corporations "speak." Universiteies speak too, as do non-profits, if we tend to assume the latter have better motives, which may or may not be true.
Additionally, as even McCain has noted, unlimited corporation contributions are a potential conduit for unchecked influence of American elections by foreign sources. That's highly inappropriate and also completely unnecessary from a citizenry free speech point of view. But patching these things one by one is not the right approach. Any rights (or I'd prefer “capabilities”) of corporations should be opt-in by our citizenry, not opt-out after seen to be a problem. The money these corporations have allow them to lobby intensely in ways that defeat after-the-fact opt-out and leave some question as to whether the voters have had or ever can have a say.
Buf it you do that Ken, then if you fail to specify the contingency, then you create potential problems, as opposed to the concept of a corporate actor, personhood, if one with a few don't that certainly one could spell out this way, if one chose:
"Nothing in the U.S. Constitution or interpretation thereof as to for profit corporations shall imply a right of free speech as to campaign donations," although even then, the more I think about it, the more it seems to me that corporations in fact represent interest groups as to industry, which aren't always on the same page, although, and Madison wondered about this, once you don't live in an agrarian world as to ownership of the means of production, that is an argument for having Social Security buying equities as to interests, as opposed to command centralization.
There is much more to the problematical role corporations play in our nation than the issue of their legal personhood, but the expanded definitions of that legal construct do much to aggravate the situation at the expense of truly representative government of, by, and for the people. There is an excellent book on the topic by David Rothkopf called Power, Inc. I highly recommend it.
Corporations need to be persons so you can bring a lawsuit against them. However, they only need limited 4th-6th amendment rights in order to conduct business.

Why does a corporation need the protections of the 8th or 21st amendments? If they are in no danger of ever needing those protections, why do they have them? It's the same reason we do not guarantee the right to non-corporeal space travel in our constitution for people - can't happen, therefore, don't need it.

When someone can competently answer that question, I'll change my tune.

Also, the only thing Madison feared more than standing armies were financial institutions, which were the closest thing to what we think of as a modern corporation at the time.

"History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling money and it's issuance." — James Madison

"I believe that banking institutions are more dangerous to our liberties than standing armies.
Already they have raised up a monied aristocracy that has set the government at defiance. The
issuing power (of money) should be taken away from the banks and restored to the people to
whom it properly belongs." — Thomas Jefferson, U.S. President.