Posted by Eugene Volokh: Corporations, Personhood, Metaphors, and Legal Fictions: http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253648474
One follow-up thought about corporations and constitutional rights; I [1]argue that corporations should generally possess free speech rights and various other constitutional rights, but not because corporations are "persons" and therefore should have the right that persons have. The corporation-as-person is a valuable legal fiction, and it's built on the same sort of metaphor we often use with regard to groups (e.g., "the Catholic Church teaches," "the ACLU argues," and the like). But we shouldn't fall into the trap of actually [2]believing that our legal fictions and our metaphors are real. Thus, I argue that corporations should generally have First Amendment rights, Takings Clause rights, and the like because those protections protect the rights of individuals. If you take a corporation's property without compensation, you're taking its owners' property. If you ban corporations from speaking about the corporate income tax, you're interfering with the rights of corporate owners and managers to speak through the group -- just as a ban on partnerships', nonprofit ideological associations', and churches' speech interferes with the rights of people who speak through those groups. But it doesn't follow that the Cruel and Unusual Punishment Clause has any meaning as to corporations, which I don't think can be punished in a way that we would see as "cruel" (unless someone persuades me that the Unusual Punishments component has some meaning as to corporations). Neither does it follow that the Self-Incrimination Clause has any direct meaning as to corporations, which can't actually be witnesses. Likewise, it doesn't follow that we should have the same heightened constitutional protections for actions aimed at dissolving corporations as we do in death penalty cases, on the grounds that the action is a "death penalty" to the corporation; that too would be excessive reliance on a metaphor that isn't helpful here (corporate dissolution as actual death). Similarly, restrictions on corporate ownership of firearms should be constitutional or not depending on your views about whether the individual right to bear arms includes the right to associate with others in certain ways to do so -- they shouldn't turn on the neat but unsound syllogism that a corporation is a person, persons have the right to bear arms, and corporations therefore have the right to bear arms. References 1. http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253637850 2. http://www.volokh.com/posts/1169074858.shtml _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
