There's no Corpse in Corporations

The rose is a rose,
And was always a rose.
But the theory now goes
That the apple's a rose,
And the pear is, and so's
The plum, I suppose.
The dear only knows
What will next prove a rose.

--  Robert Frost

At my all-male Jesuit high school, the senior retreat was a major life event.  (Those of you who have read the sermon given at Stephen Daedalus’s retreat in Portrait of the Artist as a Young Man will understand why.)  But our retreat was no fire-and-brimstone jeremiad.  In fact it began with an ode to logic.  The theme of the opening sermon was “Pigs is pigs” – an odd choice of text for 200 boys from New York City. 

What our retreat leader meant was that things are what they are, and no amount of wishful thinking should be allowed to obscure their reality.  An example he gave may seem arcane, but it certainly made sense to us.  “When a baby or a young child dies, people often say ‘Now he’s an angel in heaven.’  No he’s not.  He may be in heaven, but he’s no angel.  He’s still a human being, and human beings and angels are entirely different things.”  (This was largely to set us up for the theme of not deceiving ourselves into thinking wrong was right just because it might be convenient or desirable that it be so.)

But the idea always stayed with me not just in the moral sphere, but in everyday life as well.  For one thing, it and other experiences like it convinced me that the Jesuits had an undeserved reputation for crafty thinking when in fact they simply had a methodical way of looking at the facts.  More important, it helped me perceive logical leaps made in the service of personal preferences or beliefs, whether or not these were strictly of a moral nature.

I find it strange, therefore, that a Supreme Court with two Jesuit-trained members can so often disregard common, even universal, facts in order to bolster a dogmatic conclusion.

This week we’ll take up one such instance. Borrowing from that old Jesuit, we’ll begin with a simple tautology: “Persons are persons.”

Many of us were surprised to learn in 2008 that corporations were now persons, as this had been a contested view even up to the term of Chief Justice William Rehnquist.  For two centuries Americans have debated where corporations should be treated as persons, but only in the last few years has the blanket “corporations are persons” (or people) become a plausible statement.  If you doubt this, try Googling “corporations are people/persons” with and without adding Mitt Romney or Supreme Court to your search.  Of approximately 3.19 million hits for the phrase, less than 1% of all the citations occur without reference to the court’s 2008 decision or Romney’s recent comments.

Occasionally we do learn that something is other than what we thought it was,  but those shifts come almost entirely because of new knowledge: influenza is caused by bacteria, colds by viruses, the sun is a star, matter is atoms, etc. etc., all are agreed to be true because we found out something heretofore unknown.  Similarly, sometimes we learn that something should be re-categorized because we finally take in the data in front of us.  That non-whites are people, for example, was self-evident from anatomy and biology, but it took centuries for certain racial prejudices to give way before the facts.

            But in the case of corporations no new discoveries abut respiration, procreation, motility, or any other aspect of personhood, or life, have been recently been made by examining GM, AT&T, or Walmart more closely.

            In fact, except as a legal fiction, there is hardly anything about corporations that is even faintly human.  Corporations don’t have human bodies, can’t ambulate on their own, have none of the senses that people have.  They can theoretically live forever in the physical world (or at least on paper), and “procreate” by splitting themselves, like amoebae and other non-human forms of life. 

            Further, we don’t normally treat them like people.  You can kill a corporation and not fear arrest.  When they die, there’s nothing to bury, cremate, or otherwise show reverence.  They don’t serve on juries or practice religion, nor are they able to hold office, even if they were born in the United States.  And, as one observer recently noted, if people can own them and compel their service, then they are slaves, and slavery is unconstitutional.

            But of course what proponents of corporations are people mean is that they are legal persons for certain aspects of civil and criminal law.  When a corporation enters into a contract with a person, another corporation, or another entity, say a government agency, that contract is enforceable.  They have to pay their debts – though unlike people, they can be punished by corporate “death” for failure to do so.  They can be fined for crimes or other violations of regulation, and can be made to make reparation for damages, and can sue or be sued for damages. 

            But if it all comes down to money or its surrogates, that still leaves a distinction.  The most renowned current defender of the peoplehood doctrine is Mitt Romney, whose argument goes as follows: “Of course corporations are people.  Everything corporations earn ultimately goes to people.”  Quite aside from the fact that the statement disproves itself (if money goes from corporations to people, then it’s clearly going from one kind of entity to another), it doesn’t constitute a proof at all. Let’s take the case of horses, for example.  Horses do work, whether by hauling people and goods, powering traditional mill wheels, water pumps, and other devices, and most lucratively, by running, jumping or trotting.  All the money the horses make ultimately goes to people, but that obviously doesn’t make them people.  (We don’t euthanize people who break an ankle, do we?)  We might even say the wind and the sun make money when they power windmills and solar panels, and that money goes to people, so even natural phenomena would be people under Romney’s argument.

            Romney’s statements clarify the core issue – money.  All the areas where we treat corporations similarly to persons are based on money: contracts, fines, monopolies, safety standards, and so forth, are rooted in the corporation as an economic entity.  If one believes that economics is the sole, or paramount sphere of civil life, then the position makes some sense. And of course the hot-button issue regarding corporations is their right to spend money to promote their (meaning of course their shareholders’ and other beneficiaries’ ) goals in the political arena.  Does anyone argue that any of the non-economic amendments or sections of the Constitutional – the number of seats in Congress, freedom of religion, the right to bear arms, the limits on presidential terms, etc. --  apply to corporations? The sole area of disagreement is whether corporations have the same speech rights as persons, and that means the right to spend money to influence legislation. (We’ll avoid the second paradox involved, i.e. that “money is speech” at least until another time.)

            The legal debate turns on an interpretation of the Constitution. But as Abraham Lincoln saw clearly, the moral foundation of the United States rests on the principles enunciated in the Declaration of Independence. For the corporatist view to prevail, therefore, it will need a new Declaration as a foundational principle.  We conclude with a draft of its opening, in the words of Rod Serling on The Twilight Zone “offered for your consideration”: 

“We hold these truths to be self-evident, that all Corporations are created equal, that they are endowed by their Articles of Incorporation with certain unalienable Rights, that among these are Existence, Influence, and the Pursuit of Profit. – That to secure these rights, governments are instituted among Corporations, deriving their ‘just’ powers from the consent of the Corporations – That whenever any Form of Government becomes destructive of these ends, it is the Right of the Corporations to alter or abolish it, and to institute a new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Power and Profitability.”

P.S. For Holiday Corporate Caroling, click on Hallelujah Corporations