My friend and UCLA colleague Eugene Volokh has a nice post on the corporate personhood issue we discussed a few days ago. He focuses on many aspects of the problem, but I'll pluck out two issues most pertinent to most readers of this blog. First, the practical consequences of denying the corporation constitutional statuts and protections:
... if corporations lack constitutional rights, the government could take their property without just compensation, and in fact without any hearing. It could just come in and grab it, no questions asked.
Second, the individual rights aspect of the problem, which I regard as the most important:
If you take the property of a corporation without compensation, whom are you really hurting? Not "the corporation," which is, indeed, a convenient legal fiction. You're hurting the corporation's owners.
If you accept the legal fiction of the corporation being a separate person, then taking its property violates its rights. But if you reject that fiction, as a means of arguing that the corporation should lack rights, then taking its property violates its owners' rights. Either way, the Takings Clause should apply; and that's what suggests that the legal fiction (a corporation is a person) is a sensible one here — using it makes analysis easier, but doesn't ultimately change the results much.
The same goes for the Due Process Clause, the Civil Jury Trial Clause, and so on. If you take a corporation's property, or let it be taken through certain procedures, you're affecting the property of individual owners. There's therefore no real reason to deny these rights to the corporation.
Likewise for free speech. Corporations don't actually speak; people speak. A corporation's employee (a person) communications information that is decided on by a group of managers (people) who represent the stockholders (other people). Barring the New York Times or the ACLU or the Catholic Church or General Motors from speaking bars real people from speaking using the corporation's property.
Aha, some might say, the real people aren't silenced — they can still speak using their own property. But the Court has long understood that to speak effectively in a vast nation, you need to be able to pool your resources with others (even in this cyberspace age).
The Court has recognized this under the rubric of the right to expressive association, but the same applies to speech via corporations. When people contribute money to the ACLU, so that the ACLU's directors can decide what ACLU's spokespeople say, the contributors are making a decision to pool their resources so that some decisionmakers (the directors) can decide how to use them to speak. And the same goes for GM shareholders — they are pooling their resources and giving them to some decisionmakers (GM managers) so they can decide how to spend the resources, including spending them for speech, whether advertising or political advocacy.
Do go read the whole thing for his views on original intent and so on.
