Saturday, January 07, 2012

Corporations are people too, if you don't know how to read

Brad DeLong convenes a symposium of Edward Coke, John of Salisbury, Thrasymachus, and Justinian to discuss how "person" in the 14th Amendment came to be construed as including corporations.
Justinian: So if you have more corporations in your state, you get more representatives in the legislature?

John of Salisbury: No, no, no! "Persons" in Section 2 refers only to human beings...

Edward Coke: And "persons" at the start of Section 1 refers only to human beings...

John of Salisbury: Only "persons" at the end of Section 1 refers to legal persons, i.e. corporations, as well as human beings...
More at the link, including the "invisible ink" theory of legislative intent.


  1. I can't stop thinking about New York Times v. Sullivan in this context.

    The New York Times accepted an advertisement from a civil rights organization. They were sued in Montgomery for libel. If the analysis is that a corporation is not an entity (like others) with First Amendment rights we must respect, that case turns out differently and the Times quits allowing the use of its advertising pages for folks who could create this kind of liability for it. Isn't the whole point of arguing "A corporation is not a person" to strip away their First Amendment rights so that we can prohibit corporate political speech?

    I am slightly less worried by arguments for breaking the linkage that money is speech, but even that seems troubling.

  2. NMC, I'm no 1st Amendment expert, but I don't see the issue here. The amendment expressly guarantees "freedom of the press," without reference to personhood.

    Is the fear that the 1st Amendment would not be incorporated against the states?

  3. Perhaps I am missing something, but isn't the idea to overruled the notion that corporations are "persons" for purposes of fixing campaign finance prohibitions against their spending money? I thought the logic went: 1) Spending money is speech. 2) Corporations are persons and therefore have rights like "anyone" else. Therefore, 3) Corporations spending money is protected speech.