Saturday, July 19, 2014

167.3 - Outrage of the Week: Hobby Lobby and corporate personhood

Outrage of the Week: Hobby Lobby and corporate personhood

Now it's time for our other regular feature, the Outrage of the Week. For this week's Outrage I'm going to go back to something I've talked about before - the Hobby Lobby decision - but I'm going to look at a different aspect.

Because amid all the discussion about the impact on availability of contraceptive care, something else was largely lost in the shuffle and so was not getting the attention it deserved.

In it's decision on the Hobby Lobby case, the Supreme Court found as a practical matter that a profit-seeking corporation, a commerical business, can have a religious belief and has rights of conscience. It has never found this before. This is a dramatic, far-reaching, expansion of the ill-founded and Constitution-twisting notion of "corporate personhood," the idea that in some ways - an increasing number of ways, now - a corporation is just like a living, breathing, person with the same fundamental rights.

What Citizens United did for the idea of corporate freedom of speech, Hobby Lobby did for corporate freedom of religion. In fact, more: In this case it didn't expand the "freedom," it created it.

That the foul five, the maleficent majority, knew what they were doing is evident in the effort they went to, to try to play down the meaning. It's no big deal, nothing to see here, move along, nothing new or radical about creating new rights for corporations. In fact, in his majority opinion, Justice Sam Alito wrote that "a corporation is simply a form of organization used by human beings to achieve desired ends."

That is a declaration so utterly at odds with both the real world and the law as to brand it a deliberate lie meant to conceal the decision's impact. Because that decision is, in fact, as one commentator put it, "a radical reimagining of both First Amendment and corporate law."

Corporations are not just another "form of organization used by human beings to achieve desired ends." Corporations are different from other forms of organization. They are intended to be different, they are designed to be different, that is their whole point: to be different in the way that they are.

In his dissent to Citizens United, John Paul Stevens wrote that corporate "personhood" "often serves as a useful legal fiction. But," he added, "they are not themselves members of 'We the People' by whom and for whom our Constitution was established."

It is important - it is vital - for us to remember that corporations are legal fictions, they are legal constructs. They are "creatures of law" that have no existence apart from their definition under such law. Corporations do not actually exist in the physical world. There is no building to which you can point and say "that is the corporation." You can say "that's where the headquarters of the corporation is, that's where it does most of it's business," but you can't say "that is the corporation." There is no person, no group of people, to who you can point and say "that is the corporation." You can say they are officers of the corporation or executives of the corporation or employees of the corporation or stockholders of the corporation, but they are not "the corporation." Oh, various facilities owned by the corporation do exist - but the corporation itself is a creation of the state, one which by design exists apart from any of the actual people involved in it. Even in a case where a single person incorporates themselves, you can't point to that person and say "there is the corporation," because they are not: The corporation, again, exists apart from them.

Corporations exist apart from those involved with them in order to offer those people protection against certain kinds of risk - that is their whole point! And it is altogether possible for a corporation to exist without any facilities, officers, employees, agents, income, or debts, to exist solely on paper. It would be incapable of action - but legally, it would still exist.

On the other hand, unincorporated groups, organizations, associations, clubs - that is, actual "organized groups of people" - whether political or otherwise, long-term or ad hoc, exist only as the aggregate of their members. No members, no group. If any unincorporated organization owns property, there will be actual people on the hook for actual debts. If there is a lawsuit, it is against people, not some disembodied legal formality. Corporations, by design, by their nature, by intent, are different and it is inane to suggest otherwise.

That's the point here: Corporations are, again, designed to protect involved persons against certain types of risk. That is, by incorporating, those people gain special protections and that corporation occupies a special status, one not available to others. It is entirely reasonable, logical, and I say Constitutional to expect that in return for that special status, that those corporations - not the individuals, the corporations - face certain restrictions on what they can do in the public arena as compared to what individuals, actual, living, breathing, human beings, can.

Even so, courts have long held that corporations can assert some, but not all, of the Constitutional rights of individuals, straining to make distinctions as to what rights are "purely personal" and so unavailable to corporations and which are not.

But even that idea, that corporations have any rights beyond certain basic universal guarantees, specifically those of equal protection and due process (including the right to sue and to own and use property in accordance with the law), that notion may rest on a - to use an old phrase - foundation of stubble and straw.

The modern idea of corporate rights - that is, corporate "personhood" - comes from an 1886 SCOTUS decision called Santa Clara County v. Southern Pacific Railroad. Except it doesn't: The phrase "corporations are persons," the entire foundation for the doctrine that corporations are "legal persons," does not appear anywhere in the ruling; rather, it was in a summary of the arguments presented in the case written by a court reporter. Such summaries are not legally binding. What the court said was that the 14th Amendment guarantees of due process and equal protection applied to corporations such as were parties in that suit, not that "corporations are people, my friend."

In fact, for the first 100-plus years of our history, that was not the fact or the law. In a case decided in 1819, Chief Justice John Marshall said
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.
That is, the rights of a corporation depend on “the object for which it was created.”

Which is why, by the way, profit-oriented corporations can be and have been treated differently than specifically religious institutions and nonprofits - or at least they were.

Of course, that was before corporations, just like the Velveteen Rabbit, became "real" (although the love in this case was that of money and power).

Still, for the very reason that the case was decided in 1819, just 31 years after the ratification of the Constitution, it could be argued that it's more likely than the Santa Clara case to reflect the intentions of the framers vis-à-vis corporations and the political process - which should have been of concern to those "strict constructionists" among the foul five who always claim to be looking for "the original intent," but of course it wasn't.

I say we are entirely within our rights and authorities as a free people to define the rights, protections, and authorities of corporations in whatever way we choose, including imposing whatever limitations we care to place on them, limited only by those baseline guarantees which have been there since the beginning of the republic - which were, again, equal protection and due process, access to the courts, and the right to own and use property in accordance with the law. Beyond that, well, we offer the privileges and protections that corporations provide for their participants, so we get to set the conditions under which they are available. You don't want the restrictions? You don't incorporate.

But the Supreme Court continues to go the opposite direction, to provide corporations and the rich elite who run them more power, more authority, and fewer restrictions; giving them by judicial fiat more and more of the rights previously held to be, in what is an increasingly anachronistic phrase, "human rights."

And now it has declared that perhaps the most human of rights, the most distinctive of human qualities, the right of conscience, also describes corporations. That corporations can have consciences, that entirely apart from actions of their directors (because remember that is the point of a corporation, to be separate from the people that comprise it) they can pray, they can express devotion to a god, that corporations can have their own emotional and spiritual existence as we continue to strip away what is "human" in service to the corporate state.

And That. Is. An. Outrage.

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