First, let me deal with a boring but important matter of procedure. My opponent in this debate says that there is only black and white, only right and wrong in this argument and if I am for the existence of corporations in America then I am simply wrong – but there is another aspect to this discussion. My friend and opponent clearly also understands how to construct an argument that will benefit his position in this and carefully puts his opponents in a double bind – that is to have to answer a question like this:
So, tell us Joe…just exactly when did you stop beating your wife?
Assuming you are innocent of this crime, and you want to be truthful, how do you answer this question without appearing guilty? If you give a date, it means that you once did beat your wife and if you don’t give a date, the assumption is that the practice continues. Answering “I’ve never beaten my wife” does not answer the question, it avoids it.
So you can see how the framing of a premise both affects and effects an answer.
Joe has set up a similar situation. He is essentially asking:
So, tell us Mike, since we all know that corporations have always been evil, just when did corporations stop being evil?
My response was to reject the premise because, like the question above, to directly answer the question evades the real answer and answering in specific accepts the premise that corporations are inherently evil and anti-liberty – which I obviously do not agree with.
OK, enough of that.
Chief Justice Marshall in Dartmouth College v. Woodward (1819) defined corporations in this landmark case as:
“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, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented and are in use.
“By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person. It is no more a state instrument than a natural person exercising the same powers would be.“
Justice Baldwin in an assenting opinion in Proprietors of Charles River Bridge v. Proprietors of, 36 U.S. 420 (1837) 36 U.S. 420 (Pet.) defined corporations as follows:
“In this country, every person has a natural and inherent right of taking and enjoying property, which right is recognized and secured in the constitution of every state; bodies, societies and communities have the same right, but inasmuch as on the death of any person without a will, his property passes to his personal representative or heir, a mere association of individuals must hold their real and personal property subject to the rules of the common law. A charter is not necessary to give to a body of men the capacity to take and enjoy, unless there is some statute to prevent it, by imposing a restriction or prescribing a forfeiture, where there is a capacity to take and hold; the only thing wanting is the franchise of succession, so that the property of the society may pass to successors instead of heirs. Termes de la Ley 123; 1 Bl. Com. 368-72. This and other franchises are the ligaments which unite a body of men into one, and knit them together as a natural person (4 Co. 65 a); creating a corporation, an invisible incorporeal being, a metaphysical person (2 Pet. 223); existing only in contemplation of law, but having the properties of individuality (4 Wheat. 636), by which a perpetual succession of many persons are considered the same, and may act as a single individual. It is the object and effect of the incorporation, to give to the artificial person the same capacity and rights as a natural person can have, and when incorporated either by an express charter or one is presumed from prescription, they can take and enjoy property to the extent of their franchises as fully as an individual. Co. Litt. 132 b; 2 Day’s Com. Dig. 300; 1 Saund. 345. It bestows the character and properties of individuality on a collective and changing body of men (4 Pet. 562), by which their rights become as sacred as if they were held in severalty by natural person….”
So the idea of a corporation having some of the rights of an individual is nothing new.
The most recent challenge to this is the decision of the Supreme Court in Citizens United v. The Federal Election Commission, in which:
…the Court held that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The nonprofit groupCitizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”). In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.
The decision reached the Supreme Court on appeal from a July 2008 decision by the United States District Court for the District of Columbia. Section 203 of BCRA defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The lower court held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries. The Supreme Court reversed, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from spending on “electioneering communications”.
The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.
Corporate personhood is the legal concept that a corporation may sue and be sued in court in the same way as natural persons or unincorporated associations of persons. This doctrine in turn forms the basis for legal recognition that corporations, as groups of people, may hold and exercise certain rights under the common law and the U.S. Constitution. The doctrine does not hold that corporations are “people” in the most common usage of the word, nor does it grant to corporations all of the rights of citizens.
Joe seems to present them as sentient beings, acting as if they are alive and self-aware rather than at the behest of those they represent. As I pointed out, corporations do not vote (I’ve yet to see GE registered to vote) and are subject to regulations that are not applied to individuals, so they are NOT the same as an individual and have not been accorded true legal identity as a “person”. All Citizens’ United said was that a corporate organization had the right to speak in their own interests on behalf of their owners (the shareholders) without restriction in a political election just as a person has the same right.
Do corporations or “artificial entities” subvert natural law? Sure they can – and do – my arguments have never said that they don’t – but then any corporate body (or even individuals) can subvert natural laws through their actions, not limiting this discussion to businesses. Does that necessarily make them bad or evil simply because they exist? I do not believe it does because I believe (as Justice Marshall stated) that a corporation:
…possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.
It would seem to me to be logical that if political involvement supported the chartered activity of the organization, that would be in the interest of its “very existence”. The CATO Institute’s Ilya Shapiro and Caitlyn W. McCarthy say it better than I have:
Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups.
We have never been a country based solely on natural law, something recognized in the preamble of the Constitution when it states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
If a government is necessary to form a “more perfect” union, is that not a recognition that natural law in isolation is insufficient to achieve the ends of a proper government (of course, the Founders wisely went on to stipulate constraints on this perfect Union stuff by specifically listing enumerated powers)? That is not inherently evil, we relinquish parts of our natural liberty in exchange for an orderly society all the time – that is the basis for living under the rule of law.
If all corporate entities subvert liberty and natural law, does that not also argue that the protection of a free press – the “press” being made up of corporate organizations – the First Amendment, is against natural law?
Congress shall make no law …abridging the freedom of speech, or of the press…
In the most basic form of any definition of a corporation, all of our governments – federal, state and local – fit.
It seems that the issue here is accumulation of power (via money) by a corporation and money = power = evil. This can be true and untrue. As I stated in a comment, power in and of itself is not good or evil, the definition depends upon how that power is used.
I guess my problem is that the argument seems to be limited to corporations that make money and that they somehow subvert the “natural order” while the existence of all corporate entities is ignored – unless we are saying that all corporately organized entities are inherently evil and they never should be allowed. It just seems that the only reason that this seems to be an issue is that these corporations make money – a lot of it – and because of that and the power that money brings, the concept of the corporation is being attacked…but is it? I do not hear the same argument against religious organizations, fraternal organizations, governments or even charities – all examples of corporate organizations in the eyes of the law.
My point was that corporations are nothing but organizations of people, bound together by individual choice and driven to act in the best interests of the individual owner (the shareholder). The shareholder voluntarily agrees to the process of management of the organization through the purchase of stock and can end that arrangement at any time by selling that stock when it has met or no longer meets his or her goals.
To accept that an amoral structure, one acting to maximize the return on shareholder investment and one that is subject to the laws we decide to impose upon it, is simply evil on its face is illogical. If it is evil and behaves according to the laws, would that not mean that the laws are the problem?
As I stated, I am all for a discussion of the adequacy/inadequacy of the regulation of corporate entities. What I am not for is simply arguing that the very existence of a corporation is inherently bad, evil or subtractive to individual liberty since individuals form these organizations to pursue their guaranteed rights. I just don’t understand how the mere existence of GE, Exxon or Ford reduces my liberty.
As things are wont to go, there are opposing views on the subject. I disagree with Joe on this one just as there are two sides to the Citizens United case. As noted, this case overturned two earlier cases that ruled in the opposite way. I appreciate his passion and research; I just refuse to accept his premise that the very existence of an organization is evidence of its danger to individual liberty, especially when I believe, as Shapiro and McCarthy state, “corporations are formed by individuals as a means of exercising their constitutionally protected rights”.
My view of Joe’s position is like a drunk driver crashing his car and then blaming the car. With corporations, as with the car, it is the individual (or individuals) who are at the controls that matter. If corporations do subvert natural law, they do so because the individual subverts natural law and more to the point, they do so voluntarily.
I won’t convince Joe that I am right – I honestly view his fervor as a Quixotic quest – my hope is that the readers simply look at both positions and decide for themselves.
Ain’t liberty grand? This is why we can’t afford to lose it.