Corporate Personhood: Can a corporation really hold religious views? How did we get here?

By:  Robert Bryson

Corporate personhood is the legal notion that a corporation is a distinct entity that exists separately from the human being associated with it (like owners, managers, and employees). Corporations got their first breath of life in the Justinian Digest (the latest iteration of the Roman Code). Pope Innocent IV (pontificate from 1243-54) relied on Justinian’s Digest to declare that church “bodies” could own property as “persons.” The notion of corporate personhood continued to develop in Germany, the Netherlands, England and eventually the British North American colonies.
Corporations were originally created as single-purpose entities that would exist for a limited amount of time to address a capital-intensive problem. For example, corporations were established build a road from point A to point B. Later, the United States pioneered corporations for limited purposes: like banking, insurance, railroads, and other major industrial developments. However, corporations remained limited in what they were allowed to do.

Development of Corporate Law in the United States

In 1791, the Constitutional Congress ratified the First Amendment granting freedom of speech, freedom of the press, and people’s rights to assemble and petition the government – the same clause that the current Supreme Court relies on to grant corporations the right to hold religious views and donate unlimited funds to political campaigns. Contrary to the current incarnation of corporate personhood, the Framers, in various writings, expressed deep mistrust of self-interested corporate power. In 1819, the Supreme Court took its first few steps toward granting corporations the modern conception “personhood.”
In Dartmouth College v. Woodward, the State of New Hampshire passed legislation to convert the private Dartmouth College into a public institution. At the time, the President of Dartmouth College was deposed by the Trustees, which was an unpopular decision in the state government. In response, the State passed a law to force the college to become a public entity, thus giving the Governor the right to appoint Trustees. Despite Chief Justice Marshall writing that a corporation is a state-crafted, artificial “creature of law” that does not possess inalienable human rights, the Dartmouth College court nevertheless ruled that the corporate did have some rights to dictate to and defy the government. The decision was decisive in the rise of American business corporations and the free enterprise system.

An Unscrupulous Senator Gives Rise to Corporate ‘Personhood’

In the 1870’s, corporate advocates began pushing a novel theory – corporations have inherent constitutional rights and should be shielded from state regulation. In 1886 San Mateo County v. Southern Pacific Railroad, this theory was cemented. The crux of the case concerned whether Congress intended to extend to corporations the same equal protection and due process rights as those afforded natural persons under the 14th Amendment. The case challenged whether the State of California could impose a railroad tax.
Senator Roscoe Conklin, a leader of the Republican Party and the last living member of the drafting committee for the 14th Amendment was brought before the Supreme Court as an expert witness. Senator Conklin was twice nominated to the Supreme Court and twice turned it down, even after he was confirmed by the Senate. During oral argument, Senator Conklin produced a journal purportedly created during the drafting of the 14th Amendment. Based on the journal, he argued the drafters intentionally changed the word “citizen” to “person” to extend due process rights to corporations.
The Supreme Court ultimately decided the case on narrow state-law grounds, ruling in favor of the railroad. However, a footnote noted that during oral arguments, the Chief Justice said the Justices did not want to hear about whether the Equal Protection Clause applied to corporations because “[w]e are all of the opinion that it does.” Based on that footnote, the Supreme Court issued a series of decisions confirming corporations are persons within the provisions of the 14th Amendment, striking down a series of state laws including: laws requiring defendant railroads to pay attorney’s fees for certain plaintiffs , state laws that interfered with the “liberty to contract,” and a statute permitting condemnation of private railroad property as violating the 5th Amendment Takings Clause as applied against the States via the 14th Amendment.

Modern Take on Corporate Personhood

There have been three defining cases in the 21st Century regarding the expansion of corporate rights: Citizens United and Hobby Lobby. Citizens United stands for the proposition that restrictions on spending by corporations, unions, and associations violated the First Amendment. The Court, essentially, equated the expenditure of money with free speech. Citizens United eliminated a gray area of campaign finance which prohibited corporations from spending money to support or defeat a candidate for office. The Supreme Court retained the prohibition of direct contributions by corporations to political campaigns. The effect has been a dramatic increase in spending.
Hobby Lobby stands for the proposition that for-profit, closely-held corporations can hold religious beliefs and consciously object to certain laws pursuant to the Religious Freedom Restoration Act. Hobby Lobby was the first decision wherein a for-profit corporation was permitted to exempt itself from a regulation if its owner objected. The case dealt with the Affordable Care Act’s mandate that employers with over 50 employees provide minimum healthcare coverage, including contraceptives. Hobby Lobby objected, arguing that requirement violated its religious beliefs, and accordingly, they should be permitted to exempt themselves from providing contraceptive coverage. Hobby Lobby stands for a dangerous proposition that could allow partnerships, LLCs, and other “legal persons” to hold religious beliefs and exempt themselves from regulation, a tempting prospect because of the opportunity to reduce employee benefits without incurring additional costs.

Concluding Thoughts

Are corporations people? Of course not. No rational person could conclude otherwise. Corporations do not exist except by virtue of the people that work within them. Corporations are collections of people, not monolithic artificial beings. The disconnect between corporations and people is accountability. Corporations avoid the same type of accountability as people by virtue of its form.
For example, if a person dumped chemical waste into a river that poisoned hundreds of people, that person would be prosecuted and incarcerated. However, when a corporation does it, it is fined and the individuals working for the corporation are left alone. Corporations enable people to hide behind the collective identity. Within the collective identity it is easy to pawn off accountability because it is insulated through bureaucracy and motivation. “It wasn’t my decision, I ran it up the ladder.” “It’s not my job to care for the community, it’s my job to maximize shareholder value.”
In short, corporations allow people to skirt accountability. Corporations can continue to gain rights, so long as the people running them, working for them, and owning them are held accountable for the corporation’s bad acts.

[1]https://www.umass.edu/legal/derrico/corporateperson.html

[2] Burwell v. Hobby Lobby (2014) 573 U.S.    ; 137 S.Ct. 2751

[3] Citizens United v. FEC (2010) 558 U.S. 310

[4] David H. Gas. Gans & Douglas T. Kendall. A CAPITALIST JOKE (Constitutional Accountability Center 2010)

[5] Newmyer, R.K. (2001). John Marshall and heroic age of the Supreme Court. Baton Rouge: Louisiana State University Press.

[6] https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/?utm_source=quartzfb

[7] Santa Clara v. Southern Pac. R.R. (1886) 117 U.S. 394, 394.

[8] Gulf, Color & Santa Fe R.R. Co. v. Ellis (1897) 150, 154-55, 159, 166-67.

[9] E. Allgeyer & Co. v. Louisiana (1897) 165 U.S. 578, 589. 591.

[10] Chicago Burlington & Quincy R.R. Co. v. Chicago (1897) 166 U.S. 226, 234, 241

[11] http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/

[12] https://www.washingtonpost.com/news/the-fix/wp/2014/01/21/how-citizens-united-changed-politics-in-6-charts/?noredirect=on&utm_term=.a06dcea744c3

[13] https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc.

[14] Catholic hospitals and other non-profit, religious institutions have been given waivers for years.

https://www.politifact.com/truth-o-meter/article/2012/feb/10/health-care-law-catholics-birth-control/

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