The American left, as I have observed in Public Discourse and National Affairs, has declared war on one of our vital legal traditions by insisting that “corporations are not people.” As it turns out, some on the right are also willing to take this position.
Writing in Public Discourse, political theorist S. Adam Seagrave reaches across the ideological aisle to “agree with the liberals: corporations are not people,” and therefore they “don’t have rights in the way that real people do.” Seagrave’s aims, however, are very different from those of the left. While liberals seem to discount corporate personhood and corporate rights in order to sweep away obstacles to the power of the government, Seagrave thinks such ideas are a threat to our appreciation of the more fundamental personhood and rights of individuals.
Seagrave and I do not seem to disagree fundamentally. He agrees with me that corporations play an important role in a free polity with a thriving civil society and that this role requires that they be accorded a certain legal status with accompanying protections. And I would agree with him that human beings are created by God and possess by virtue of their humanity a natural status as persons, and natural rights that corporations do not possess, and that we should not let anything in our thinking obscure these essential truths.
The issue between us, then, is primarily one of prudence. Does using the traditional language of corporate “personhood” and corporate “rights” diminish our ability to understand the natural personhood of human beings and thus undermine our ability to protect their natural rights? Seagrave thinks so. According to his argument, once we treat a group of people as a single person—which we do when we speak of the artificial, legal personhood of a corporation—“it becomes difficult to avoid treating the real individuals” within such a group “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 reply, I would contend that the problem to which Seagrave points does not necessarily arise, so long as we take care to make the proper distinctions. It is possible to believe that a group of persons dedicated to a common pursuit is a kind of whole to which the individuals belong as members or parts, while at the same time understanding that these individuals are themselves, in a different and more fundamental sense, wholes themselves. Similarly, it is possible to understand that human beings possess a natural personhood and natural rights, while also entertaining the idea that there is a kind of corporate personhood and rights that exist not by nature but by convention, established with a view to the convenience of society.
The Testimony of History
History seems to bear out these possibilities. Seagrave notes that political philosophers such as Plato—who treated the city as analogous to the individual human soul in the Republic—and Thomas Hobbes—who spoke of the commonwealth as an artificial person in his Leviathan—are also famous for their “defenses of authoritarian and despotic political rule.” He fails to recall, however, that Aristotle was able both to affirm that the individual is a part of the political community and therefore subordinate to it and to reject Plato’s effort in the Republic to reduce the political community to a complete unity. He was, therefore, able to put forward a political teaching that cannot be understood as “authoritarian” or “despotic” in the same way that the Republic’s and the Leviathan’s teachings may be.
This possibility is also suggested by the traditions of thought that more directly influenced America. Men such as William Blackstone, Alexander Hamilton, and John Marshall unequivocally endorsed the doctrine of individual natural rights while believing in the useful legal tradition of corporate personhood and corporate rights. It does not seem that their adherence to the latter doctrine in any way obscured their understanding of or lessened their commitment to the former, more fundamental truths. These men, moreover, publicly taught this combination of beliefs. They evidently thought that even intellects far less exalted than theirs would be able to grasp the distinctions necessary to sustain belief in both things. They appear to have been correct. Generally speaking, the generations of Englishmen and Americans most preoccupied with the idea of natural rights were also completely at home with the language and practice of corporate personhood.
We, of course, live in different times—times in which popular belief in natural realities, including natural rights, has been dangerously undermined. But have we sunk so far into intellectual and moral darkness that the public is not capable of listening to an argument for the natural rights of individuals while at the same time understanding that corporate personhood is a venerable and useful expression used for a venerable and useful legal practice? If so, then any constructive dialogue is probably impossible, and we should not expect self-government to result in anything other than irrationality and injustice, even if we do carefully abstain from traditional formulations such as corporate “personhood” and “rights.” I hope and believe that the situation is not quite that bad.
The language of corporate personhood and corporate rights, then, is not as dangerous as Seagrave believes. Our thinking is certainly distorted, but it has not been distorted by expressions such as these, which have for centuries existed side by side, harmlessly, with belief in natural rights. Moreover, we would encounter serious problems if we were to follow Seagrave’s counsel and abandon the language of corporate personhood. It is necessary to our ability to understand some key political realities.
The Testimony of Experience
Seagrave suggests—drawing on P.G. Wodehouse’s Bertie Wooster—that just as it is appropriate to say “goodnight” to a person but ridiculous to say it to an entire city, so it is “appropriate to recognize the possession of rights by a human person but not by a corporation,” and “appropriate to ascribe moral obligations to a human person and not to a nation or political society.”
Here Seagrave is arguing against our daily lived experience. We do ascribe rights and obligations to corporate entities all the time. Corporations enter into contracts with each other, and they are bound by the terms of such agreements—even if the particular officers who consented to them have left the business and have been replaced by others who dislike the contract and would never have agreed to it. Similarly, nations enter into treaties with each other, and they are obligated to fulfill them—even if the public officials who ratified the agreement have retired to private life and have been replaced by others whose personal priorities conflict with the treaty. Economics and politics as we ordinarily experience them depend on some notion of corporate personhood and corporate rights as distinct from the identity, rights, and obligations of the specific human beings involved.
The tendency to personify corporate entities—especially the political community to which one belongs—is deeply rooted in the human moral imagination. We see this natural impulse in well-known figures such as Uncle Sam, Britannia, and Mother Russia. Human beings seem to cherish these personifications, and they may even be necessary to their feelings of just patriotism and to the sacrifices that such patriotism may require. It is probably much more natural for a man to think in terms of a duty—a natural, given duty—to risk his life for his country than to think in terms of some individual right that his fellow citizens have to expect such sacrifices of him.
The Language of Personification
This tendency to personify the communities to which we belong is so entrenched in our customs, and probably in our nature, that rooting it out would require a radical revision of language. To carry Seagrave’s project to its conclusion, we would have to stop speaking of citizens as “members” of the community, since that terminology suggests that they are only parts of a larger whole. Christianity would have to abandon its view of each believer as a member of the “body of Christ,” since such talk obscures the natural rights that each possesses as an individual. It is hard to see how such a project could succeed, and, again, hard to see why it is necessary, since such language has, for much of our history, proven compatible with notions of individual rights.
The idea of corporate personhood is even necessary to make sense of some of the examples that Seagrave uses to illustrate his own argument. He notes that during the Civil War the American South used notions of corporate personhood—“states’ rights”—to deny the “human personhood of their slaves.” We can observe, again, that there is no necessary connection between the affirmation and the denial. Almost all Americans from the founding to the Civil War believed in the traditional legal doctrine of corporate personhood. In his Opinion on the Constitutionality of a National Bank, Alexander Hamilton used governments as one of the most common examples of artificial, corporate persons. At the time of the Civil War, half of the country was capable of rejecting slavery while also believing in the legal doctrine of corporate personhood.
More to the present point, however, is that Lincoln’s project of preserving the Union could not have been conceived without some notion of the corporate personhood of the country and the government. Lincoln defended the Union as an organic whole to which secession did violence. His defense of the authority of the Union was inseparable from a defense of its rights—its right to be obeyed by its citizens and its state governments. It was natural for Lincoln and other patriotic Americans to frame their argument in this way, and it was probably necessary, since secession certainly violated no natural rights of northerners as human beings.
Similarly, Seagrave speaks of the Constitution as being founded on the “sovereignty of the people,” as opposed to the sovereignty of the states. But to speak of “the people” as a body capable of exercising sovereignty is to personify a corporate entity just as much as we do when we speak of corporate rights. The sovereignty of the people means that the people have a right to rule. But this right is necessarily exercised through the decisions of the majority, made in the name of the whole people, which the individual members are obliged to obey. To return to Seagrave’s most vivid example, if it is absurd to say goodnight to a city, it is equally absurd to speak of the sovereignty of a whole people, as if they could somehow act and decide as one, and have a right to be obeyed. But of course it is not at all absurd in either case, when understood in the proper way.
We have inherited a civilization that is, beyond any serious dispute, the source of many blessings. We can best preserve that civilization and the blessings it bestows by preserving the language and thought around which it has been constructed and transmitted. This means continuing to defend both the natural rights of individuals and the idea of legal corporate personhood.