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The Supreme identification of corporations and persons.

A news item that has generated a great deal of internet and media buzz is the January 21, 2010, Supreme Court ruling in Citizens United v. Federal Election Commission (130 S. Ct. 876) to allow unlimited corporate funding of federal campaigns. My friend and colleague Paul Levinson, who is a vigorous defender of the First Amendment--indeed, a First Amendment literalist cut from the same cloth as Supreme Court Justice William O. Douglas--has argued that the ruling was correct and beneficial. (1) But, while I don't share Paul's position on the First Amendment, that particular issue does not concern me here. Nor do I wish to go into the corrupting potential of unrestricted corporate spending on political campaigns, as did former Justice Sandra Day O'Connor, when she spoke about the potential for undue influence on the judiciary (on the judiciary mind you, beyond officials elected to the legislative and executive branches of federal, state, and local governments). (2) Now, don't get me wrong, these are all very important matters, and all have been the subject of serious discussion, and ultimately these are the issues that matter in this case.

And yet, it seems that the lion's share of the attention, at least as far as I can ascertain, has centered around the fact that the ruling involved the legal decision to grant corporations the legal status of persons. This was a nineteenth-century decision, traced back to the Supreme Court case Santa Clara County v. Southern Pacific Railroad Company 118 U.S. 394 (1886). According to the rat haus reality press Web site, which provides a page devoted to the case, it was the result of a clerical error or unauthorized addition. (3) Here is what they provide by way of preamble to the actual text of the decision:
  This is the text of the 1886 Supreme Court decision granting
  corporations the same rights as living persons under the Fourteenth
  Amendment to the Constitution. Quoting from David Korten's The
  Post-Corporate World, Life after Capitalism (pp. 185-6):
  In 1886, ... in the case of Santa Clara County v. Southern Pacific
  Railroad Company, the U.S. Supreme Court decided that a private
  corporation is a person and entitled to the legal rights and
  protections the Constitutions affords to any person. Because the
  Constitution makes no mention of corporations, it is a fairly clear
  case of the Court's taking it upon itself to rewrite the
  Constitution.
  Far more remarkable, however, is that the doctrine of corporate
  personhood, which subsequently became a cornerstone of corporate law,
  was introduced into this 1886 decision without argument. According to
  the official case record, Supreme Court Justice Morrison Remick Waite
  simply pronounced before the beginning of arguement in the case of
  Santa Clara County v. Southern Pacific Railroad Company that
  The court does not wish to hear argument on the question whether the
  provision in the Fourteenth Amendment to the Constitution, which
  forbids a State to deny to any person within its jurisdiction the
  equal protection of the laws, applies to these corporations. We are
  all of opinion that it does.
  The court reporter duly entered into the summary record of the
  Court's findings that
  The defendant Corporations are persons within the intent of the
  clause in section 1 of the Fourteen Amendment to the Constitution of
  the United States, which forbids a State to deny to any person within
  its jurisdiction the equal protection of the laws.
  Thus it was that a two-sentence assertion by a single judge elevated
  corporations to the status of persons under the law, prepared the way
  for the rise of global corporate rule, and thereby changed the course
  of history.
  The doctrine of corporate personhood creates an interesting legal
  contradiction. The corporation is owned by its shareholders and is
  therefore their property. If it is also a legal person, then it is a
  person owned by others and thus exists in a condition of slavery--a
  status explicitly forbidden by the Thirteenth Amendment to the
  Constitution. So is a corporation a person illegally held in
  servitude by its shareholders? Or is it a person who enjoys the
  rights of personhood that take precedence over the presumed ownership
  rights of its shareholders? So far as I have been able to determine,
  this contradiction has not been directly addressed by the courts. (4)


And yes, this equation offers up all sorts of confusions, contradictions, and uncertainties. An article on the controversy in the online magazine Slate bears the title, "The Pinocchio Project: Watching as the Supreme Court Turns a Corporation into a Real Live Boy." (5) The Huffington Post, another online periodical, ran a humor piece entitled "Supreme Court Ruling Spurs Corporation to Run for Congress: First Test of 'Corporate Personhood' in Politics." (6) And the ruling was immediately subject to mockery on the part of the most trusted man in America (since Walter Cronkite, at least in certain circles), Jon Stewart, on The Daily Show.

Now, just to be clear about all this, the legal system does distinguish between a "natural person" (which is what the rest of us mean by "person") and "legal person," sometimes referred to as an "artificial person," as well. A "legal person" is a "legal fiction," which in a sense means that it is a fictional person. I guess ... So, [person.sub.1] is not [person.sub.2] after all, to employ the extensional device of indexing recommended by general semantics, as a way to help us avoid the problem of identification that our language encourages. In other words, a legal person is not a natural person, and it is all legal terminology that may confuse the rest of us, but not jurists, right?

Well, that is in question here, since the decision seems to be about extending to corporations the legal rights of natural persons. As explained on the Web site The Straight Dope, in response to the question How can a corporation be legally considered a person:
  What most people don't know is that after the above-mentioned 1886
  decision, artificial persons were held to have exactly the same legal
  rights as we natural folk. (Not to mention the clear advantages
  corporations enjoy: they can be in several places at once, for
  instance, and at least in theory they're immortal.) Up until the New
  Deal, many laws regulating corporations were struck down under the
  "equal protection" clause of the 14th Amendment--in fact, that clause
  was invoked far more often on behalf of corporations than former
  slaves. Although the doctrine of personhood has been weakened since,
  even now lawyers argue that an attempt to sue a corporation for lying
  is an unconstitutional infringement on its First Amendment right to
  free speech. (This year, for example, we saw Nike v. Kasky.) (7)


Unless lawyers and judges have some general semantics education, officers of the court are just as prone as anyone else to make erroneous identifications. Call a corporation a person and you start to think of it as a person, even if you started out with the distinction between the legal and the natural. Moreover, apart from the legal fiction, the very word corporation constitutes a metaphor of embodiment, the root corp meaning body; incorporation meaning to give the entity a body, to make corporeal. Of course, ordinary people do not, ordinarily, think of corporations as persons. We think of them as businesses, organizations, and several other things I cannot name here. It is folks working in the legal sector that talk about corporations as persons, and they are the ones who are vulnerable to falling into the trap of identification, of thinking

Corporation = Person,

when they should instead be thinking

Corporation [not equal to] Person.

Legal logic, like symbolic logic, allows us to make equations that make perfect sense in a given symbolic realm, universe of discourse, or deductive system, but that do not match up to the reality that we know through our senses, and our common sense. The legal map does not correspond to the territory, and the response on the part of critics has been ridicule, and rightly so.

And so, we find ourselves asking questions, some serious, some laughable:

If a corporation is a person, can it be subject to criminal charges? Actually it can, at least under some legal systems, although typically it is those natural persons who are corporate officers who are charged with crimes. Corporations can be fined, and sued of course, but can they be imprisoned? Can they be subject to capital punishment? Perhaps by being dissolved? Can they be arrested?

Can corporations vote? Can they run for office? Can they be drafted? Are corporations citizens of a nation? (They are, in a sense, citizens of the nation and state in which the corporation is incorporated.) Can they immigrate and become citizens of another country?

Can corporations marry? Jon Stewart suggested that the answer is yes, in the sense that they can merge. So corporations can marry each other, but can they marry a natural person? Could I marry Time-Warner, or Apple? Could we have children together? Well, maybe not in the biological sense, but maybe we could adopt? Can a corporation be a parent, or legal guardian, of a child? (Isn't that what happened in the movie The Truman Show!)

As persons, can corporations be owned? Clearly they are, but does that make them slaves? Can they be freed? (Many would say that corporations are our masters, not our slaves.) We might well remember that there was a time when African American slaves were not considered persons in this country, or, at best, 3/5 of a person. Sadly, we have not always granted the status of person to all human beings.

If corporations are artificial persons, does that mean that robots can also attain that status? What is a corporation, after all, but a kind of intelligent machine whose parts include natural persons? (8) It is science fiction, sure, but this line of legal thinking opens the question up to serious consideration, after all.

If corporations are, in a sense, fictional persons, can other fictional persons also have rights? Like maybe Superman. Spider-Man, Mickey Mouse, and the like--except they are corporate trademarks, anyway. Maybe Santa Claus, or Johnny Appleseed, or Tom Sawyer, or Paul Bunyan?

No, no, this will not do, not at all. I am reminded of a line from Kurt Vonnegut's novel, God Bless You, Mr Rosewater. In describing a fictional novel by the fictional novelist Kilgore Trout of a fictional future where suicide parlors have been introduced as a solution to overpopulation, he writes:
  One of the characters asked a death stewardess if he would go to
  heaven, and she told him that of course he would. He asked if he
  would see God, and she said: "Certainly, honey." And he said. "I sure
  hope so, I want to ask something I never was able to find out down
  here." "What's that?" she said, strapping him in. "What in hell are
  people for?" (9)


What in hell are people for? It's a question we don't have to reserve for the afterlife, or for God, it's a question we can ask ourselves, right here and now. One of our central media ecology scholars, Walter Ong, described his philosophy as personalism, the philosophy of the human person. (10) And it certainly makes sense to me to say, forget about these categories of natural and legal persons, let's just talk about human persons. And corporations are nothing more than extensions of human persons, meaning that they are inventions, technologies, media.

Of course, the whole reason why the doctrine of corporate personhood was adopted in the first place was to allow corporations to enter into contracts, to hire and fire employees, to buy and sell property, to be sued (which limits the liability of the stock holders and employees), and later to be subject to taxation. So, taking all that into consideration, if corporations are not called persons, what else might they be called? What other entities, aside from persons, can enter into legal and economic transactions?

The answer seems clear enough to me: sovereign entities. States. Nations. Governments. Just as corporations are incorporated, that is, made into bodies, so too are states constituted, through their constitutions (a property they share with other organizations). The parallels are quite clear, but also quite discomforting. We quite rightly can be concerned, and fearful, at the thought of the corporation as a sovereignty.

But corporations already are states, in effect. And rather than deluding ourselves with legal fictions of corporate personhood, let's work with the legal (and regal) realities. Let's talk about and think about and act upon corporations as nations. We will be, sooner or later. We can make treaties with corporations, and we can go to war with them if need be. This would make for a map that would better correspond to the territory, and it may well mean that we will need new kinds of maps, as well, to go with a new way of looking at the world that we already are living in. Korzybski, who was a severe critic of capitalism and commercialism, would undoubtedly approve." (11)

Notes

(1.) Paul Levinson, "Why the Supreme Court Decision Allowing Direct Corporate Spending on Elections Is Correct," January 21, 2010, http://paul levinson.blogspot.com/2010/01/why-supreme-court-decision-allowing.html. Accessed January 27, 2010.

(2.) Matthew Mosk, "O'Connor Calls Citizens United Ruling 'A Problem'," ABC News (online), January 26, 2010, http://abcnews.go.com/Blotter/oconnor-citizens-united-ruling-problem/story?id=9668044. Accessed January 27, 2010.

(3.) Rat haus reality, U.S. Supreme Court: Santa Clara County v. Southern Pac. R. Co., 118 U.S. 394 (1886), http://www.ratical.org/corporations/SCvSPR1886.html. Accessed January 27, 2010.

(4.) Ibid. See also David Korten, The Post-Corporate World: Life after Capitalism, San Francisco: Berrett-Koehler, 1999.

(5.) Dahlia Lithwick, "The Pinocchio Project: Watching as the Supreme Court Turns a Corporation into a Real Live Boy," Slate, January 21, 2010, http://www.slate.com/id/2242208. Accessed January 27, 2010.

(6.) William Klein, "Supreme Court Ruling Spurs Corporation to Run for Congress: First Test of 'Corporate Personhood' in Politics," Huffington Post, January 26, 2010, http://www.huffingtonpost.com/william-klein/supreme-court-ruling-spur_b_437871.html. Accessed January 27, 2010.

(7.) Cecil Adams, "How Can a Corporation Be Legally Considered a Person?" September 19, 2003, http://www.straightdope.com/columns/read/2469/how-can-a-corporation-be-legally-considered-a-person. Accessed January 27, 2010.

(8.) See Lewis Mumford, The Myth of the Machine: I. Technics and Human Development, New York: Harcourt Brace and World, 1967; and The Myth of the Machine: II. The Pentagon of Power, New York: Harcourt Brace Jovanovich, 1970. Also see Peter Drucker, The Concept of the Corporation, New Brunswick, NJ: Transaction, 1946.

(9.) Kurt Vonnegut, God Bless You, Mr. Rosewater, or Pearls Before Swine, New York: Delacorte Press, 1965, p. 22.

(10.) See, for example, Walter J. Ong, The Barbarian Within, and Other Fugitive Essays and Studies, New York: Macmillan, 1962.

(11.) As can be seen from his first book: Alfred Korzybski, Manhood of Humanity (2nd ed.), Lakeville, CT: The International Non-Aristotelian Library/Institute of General Semantics, 1950. Original work published in 1921.

Lance Strate is executive director of the Institute of General Semantics and professor of communication and media studies at Fordham University. This lighthearted essay was adapted from a blog post that was published on Lance Strate's Blog Time Passing. http://lancestrate.blogspot.com, on January 27, 2010.
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Author:Strate, Lance
Publication:ETC.: A Review of General Semantics
Article Type:Viewpoint essay
Geographic Code:1USA
Date:Jul 1, 2010
Words:2565
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