Corporations Are Not People, Continued

Apparently Mitt Romney is of the opinion that "corporations are people, my friends." It's apropos of nothing, but Tiger Woods just went +6 through 15 holes so I have nothing better to do than present the argument for why corporations are not, in fact, people. It starts like this: of course corporations are not people, you idiots. Do they look like people to you? No. A corporation, among other things, has no corporeal physical entity, whereas a person most definitely does. People eat, drink, breathe, sleep, walk around, talk, etc. Corporations do none of those things. So: corporations, not people.



Are corporations some kind of legal person, though? That is, despite the fact that they are clearly not Homo sapiens, does or should the law treat a corporation as if it were a person (as much as possible)? I say there's no reason why they should. Think about where human rights come from. The standard notion of rights in western culture is that they are in some sense natural, i.e. that human beings possess them or deserve them inherently, in the absence of any particular government structure. Nobody gives you your right to life, or liberty, or the pursuit of happiness, you just have it, because you're human. Maybe, if you're a religious type like John Locke, then god gave them to you, but certainly no earthly power bestows your human rights upon you. The government, therefore, has no choice but to recognize you and your rights.

It's very different for a corporation, because of course the government creates corporations. The word "corporation" comes from the idea of incorporation, of being given form, and it is the government that does the incorporating. That means that, unlike we natural persons and our pesky natural rights, since the government can choose not to recognize a corporation's existence in the first place, it must be able to choose which rights to bestow on a corporation at its creation, right? The response that someone like Professor Steve Calabresi gives to this line of argument is basically to say, so do corporations have no rights at all? If the idea is that the government creates them and therefore has absolute power over them, the idea of a corporate entity having any rights at all is a little strange. How can a corporation own any property if the government owns its very existence? And wouldn't it be a little bit silly to have a business entity with no property rights?

It would be very silly indeed, and that's the point. When the government creates a corporation, it endows it with certain rights that are beneficial for a corporation to have. Most of those rights are in the general category of property rights, since corporations are economic creatures. They most definitely do not include political rights, as corporations are not parties to the social contract and are therefore not political entities. But the point is that the government can decide to create something with rights it cannot violate. The Constitution imbues it with that power when it denies it the power to wantonly abridge contracts: this is a power to limit the government's own power. Therefore, when it calls into being a corporation it gives to that corporation assorted rights, including property rights, which that company can then count on as inviolable. If it could not do this, of course, then a corporation would not be an attractive thing to be. But it can, and it is.

So there is nothing about the theory that says that a corporation is a creation of the state and therefore has only those rights the state chooses to give it that is contradicted by the fact that corporations tend to have strong property rights. They have those rights because their creator wants them to have those rights, because the government recognizes that restricting its own power over its creations is ultimately beneficial to the society it governs. But that means that the government can, by the same token, choose not to give a corporation a certain right, if it feels that such a right would be detrimental. This is completely different from the situation with human beings, of course, who just plain have various rights, whatever you think natural human rights are, and the government lacks the power to decide to remove one of those rights because it doesn't like the effects of it. So no, Mitt Romney, corporations are not people. They aren't actual people, they aren't natural people, and they aren't legal people, either. They have certain rights that they ought to have, but they can have other rights they ought not have withheld from them.


EDIT: To be fair to Mitt Romney, he did not actually mean that corporations are people. He meant that if you tax a corporation you ultimately end up taxing people. That's true. It's one reason why theoretically, I think, eliminating corporate taxes and raising income taxes on high-income types to make up the same amount of revenue would be good policy. If you look at the full transcript of Romney's discussion, it's clear that that's what he means, not anything about legal rights or whatever. But at the same time, I think that just underscores how awful a candidate Mitt Romney is once you get off of paper: yes, he was a popular two-term moderate technocratic governor of a liberal state, but he spends every day trying to make people forget all of that and, in the process, he comes across as an anti-charismatic Mormon robot. I'm not saying that his creepiness and awkwardness are a good reason not to vote for him (though there are plenty of those if you're looking), just that they're a good reason to expect other people not to vote for him. I have an unlimited faith in the ability of Mitt Romney to look unappealing and thereby lose elections. Between that and his history of not being an entirely faithful crazy conservative, I really don't think he's going to win this nomination.