In his recent essays on corporate personhood both here in Public Discourse and in National Affairs, Carson Holloway provides an excellent and historically grounded account of the crucial importance of corporations for a healthy civil society, the protection of individual rights, and the realization of the common good. Because of the fundamental role they play in a free society, corporations absolutely should, as Holloway persuasively argues, be carefully protected in law. Corporations, and civic associations in general, are necessary bulwarks standing between the ever-growing, impersonal, and irresponsible behemoth of governmental power and the lonely, powerless but all-important individual.
Despite my agreement with Holloway’s overarching purpose, however, I also agree with the liberals: Corporations aren’t people. And since they aren’t people, corporations also don’t have rights in the way that real people do.
Now more than ever, it is vitally important for us to recover a clear understanding of what it means to be a human person and of the dignity and natural rights that attend a human being’s existence. We continue to debate, for example, whether an embryo is a human person with rights attending human personhood. We argue about the obligations of nations toward refugees, as if a group of people, such as a nation, possesses the sort of moral obligations that an individual person does. As a society, we are profoundly confused about what a human person is, and this confusion is wreaking havoc on our public debates.
In light of this, the idea of corporate personhood—even if it bolsters individual freedom in the short term—serves only to intensify our collective disorientation regarding the genuine moral significance of the individual. This is a process of disorientation that received its most powerful stimulus from the political philosophy underlying the very same progressive-era policies that are often perceived to be hostile to market freedom. In other words, upholding the idea of corporate personhood ultimately undermines the reasons why corporations are important in the first place.
The Individual and the Collective
It is easy to draw an analogy between a group of people united for a certain purpose and a single individual. Groups of people are composed of individual persons, and therefore the characteristics of a group are similar to those of an individual—groups appear to deliberate, decide, and act just like individuals do.
The practice of treating groups like individuals has a long and storied history—but not a particularly auspicious one from the perspective of human dignity and freedom. In the Republic, Plato engages in an extended reflection upon the structure of a political society built upon the analogy of the structure of the individual soul. In the Leviathan, Hobbes refers to the sovereign political power that is formed by individuals leaving a state of nature as an “artificial person.” It is no coincidence that these examples stand as two of the most historically noteworthy defenses of authoritarian and despotic political rule.
Once a group of people is treated as a single person, it becomes difficult to avoid treating the real individuals within them as something less than a whole person. And once personhood is treated as something that is imagined or constructed by definition, it becomes difficult to acknowledge a meaning of personhood that is unimagined, unconstructed, and merely given.
In the classic comic stories involving Bertram Wooster and his famous valet, Jeeves, P. G. Wodehouse has Wooster puzzle over a song from a musical play entitled “Goodnight, Vienna.” “Imagine!” Wooster says in amazement, “The idea of saying goodnight to a whole city!”
Wooster’s exclamation touches on a simple and important truth—one from which Plato, Hobbes, and we ourselves could profitably learn. This is that groups of human persons, like cities, nations, corporations, associations, and so on, are not themselves human persons. Just as it is appropriate to say “goodnight” to a human person but ridiculous to say “goodnight” to a city, so it is appropriate to recognize the possession of rights by a human person but not by a corporation or association, and so it is appropriate to ascribe moral obligations to a human person and not to a nation or political society.
Individual human persons exist in a very different manner from corporations. Human persons are independently subsisting entities, created by God through the medium of nature. Corporate persons, on the other hand, as Holloway notes and as John Marshall describes in the seminal Dartmouth College case, exist “only in contemplation of law.” This might not have been a source of serious confusion at the time of Dartmouth College, or during Blackstone’s time, since the common understanding of the society recognized the difference between a given and permanent human personhood and an artificial and imagined corporate personhood.
Now, however, after Darwin’s Origin of Species, natural beings are no longer understood as given and permanent. As a society, we no longer think that human personhood exists in any way beyond the “contemplation of law.” By insisting on the personhood of corporations, we only join in and contribute to the chorus of voices shouting down the existence of given and permanent features of human nature that transcend redefinition, construction, and imagination.
The Declaration of Independence and the Constitution
In the tension between the North and the South leading up to the Civil War, the question of the relationship between the Declaration of Independence and the Constitution combined with the question of individual natural rights vs. states’ rights in an enlightening way.
Northern abolitionists, along with Lincoln, championed the Declaration of Independence and its assertion of the principle that “all men are created equal.” They understood the political philosophy of the Declaration to refer only to and to be based only upon individual human beings created by God through the medium of human nature—such as the enslaved blacks. Southern slaveholders, on the other hand, championed the Constitution as a compact based on the principle of equality between the states as collectives. They turned to a concept of state personhood—the rights of states as metaphorical “citizens” of the national government—as a way of discounting the human personhood of their slaves.
The Constitution, according to Lincoln and Frederick Douglass, as well as many of the leading American Founders, was intended to be an embodiment of the principles of the Declaration. One of the leading features of such a Constitution would, then, be its emphasis on the importance of the individual rights listed in the Declaration. The Articles of Confederation had been founded upon the principle of the sovereignty of the states; the Constitution would be founded upon the sovereignty of the people. The Constitution would be a government over individuals as its citizens, inspired by the natural rights philosophy expounded in the Declaration and originating in Locke’s Second Treatise. Artificial states’ rights would be subordinated to individual natural rights.
Arguing against corporate personhood and corporate rights does not necessarily lead to the conclusion that corporations should not be granted careful protection in the law. Corporations can and should be granted special legislative and judicial protections that accord with their crucial importance as artificial spaces for the exercise of individual natural rights—such as the rights to freedom of speech and religion. In defending the importance of corporations and the freedoms they should be accorded under law, however, we should be careful to avoid simultaneously undermining the very reason for this importance.
Corporations are important because individual human persons are important, and individual human persons are important because, unlike corporations, they are created by “Nature and Nature’s God,” not constructed by lawyers and judges.