Persons, not People

Res Publica

Persons, not People

July 11, 2014

My Facebook friends on the political left are, once again, in the wake of the Hobby Lobby decision riled up over the Supreme Court and clamoring, again, for a constitutional amendment to say that, "Corporations are not People," thus, they believe, over-turning the 2010 Citizens United decision.

Well, of course corporations are not people! No one ever said they were. Okay, I concede, Mitt Romney did say that during the 2012 presidential campaign, but Romney never did strike me as being very bright. People, from the Latin populus, means human beings taken as a group, whether construed as a singular or plural noun. Clearly, corporations are not people, as they are not human. Liberals demanding a, "Corporations are Not People" amendment might just as well call for a, "The Moon is Not Made of Green Cheese" amendment. Corporations are, however, persons, something that, for centuries until 2010 was never doubted.

A person (from the Latin persona) in the eyes of the law, is an entity with legal standing. A person can sue and be sued, own property, enter contracts, and employ other persons. As far back as ancient Roman law and through the English Common Law that forms the basis for American law, corporations have been recognized as artificial persons. If Hobby Lobby and Citizens United were not "persons" they would have had no standing to sue, nor would the laws they were protesting have applied to them, as the law operates on persons only.

The doctrine of corporate personhood was explicitly enunciated by the Supreme Court nearly 200 years ago in the celebrated Dartmouth College. In the 1819 Dartmouth case the legislature of New Hampshire attempted a hostile takeover of the school, a private corporation, in order to treat it as a public institution and run it as the state saw fit. The brilliant Daniel Webster argued for the corporation that "...its rights stand on the same ground as those of an individual."

The Court agreed, and Associate Justice Joseph Story in his concurring opinion wrote (emphasis added): "An aggregate corporation, at common law, is a collection of individuals, united into one collective body.... It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage.

Law, not nature, created corporations, and the law may operate differently toward corporations than toward individuals. For example, corporations cannot vote, be drafted, or serve as public officers. The question is what rights of a natural person do we give to artificial persons. I believe the court decided correctly in the Citizens United and Hobby Lobby cases. Others, including some of the Supreme Court Justices, disagree. But the solution, if you think the court erred, is to address the specific errors, not throw what has served us well for hundreds of years -- the legal doctrine that Corporations are Persons.