Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, February 27, 2010

"Corporate personhood"

Mark Mitchell, at the (wonderful) blog "Front Porch Republic" -- taking a cue from our friends at Commonweal, apparently -- links here to Stephen Colbert's riff on "corporate personhood" (and hilarity ensues).  Mitchell writes:

Corporations today are considered legal persons. This means that they enjoy the protections of the 14th amendment which implies that the bill of rights applies to “corporate” persons as well as “real” persons. But corporations are not persons. They are not alive. They are not even dead. They do not have natural life spans. They are not mortal creatures whose essential mortality induces reflection on the ultimate meaning of life and leads the wise to live out that brief existence with an eye to what matters most. A corporation never dies a natural death and therefore lacks the natural incentive to live a life that includes dying well. An immortal person is a god. By calling a corporation a person (whose charter is for perpetuity) have we created a strange new god? A new idol before which we prostrate ourselves? The corporation, rightly conceived, is to serve human beings. Corporate personhood has the effect of  blurring this goal and reversing the relationship.

Arguments like this have been thick on the ground (or in the air?) in the wake of the Citizens United case (which was, in my view, correctly -- if perhaps overbroadly -- decided).  In my view, the "corporations are not alive, etc." argument misses the point (at least, it misses the point of the Court's free-speech caselaw).  The issue is not so much whether or not "corporations are . . . persons" that "enjoy the protections" of the 14th Amendment.  Rather, the issues is about the nature of the constraints that the First Amendment places on government regulations of political speech (and political ads, even if paid for by corporations, remain "political speech").  In my view, the First Amendment embodies a strong "no government distortion or manipulation of the content of political expression and debate" norm.  When applying this norm, it seems to me more important to focus on what the government is doing than on who (or what) it is doing it to.


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