Slowly but surely our courts are taking an old, but limited, concept and extending it immeasurably beyond all logic or reason. This concept is corporate personhood. Originally this was clearly intended to provide legal recognition for civil and commercial purposes. The point was that corporate limited liability rules impede recovery of debts unless corporations are treated as though they were persons who can sue and be sued. There was never any belief that corporations are actual people who are citizens of the United States. Yet in the inventive minds of some jurists this slight opening of the door is an invitation to wild excursions for purposes never intended. Recent decisions extend that recognition to include many of the rights conveyed by our Constitution’s Bill of Rights. In essence, we are approaching full citizenship for corporations.
Charles Dickens, as he does so often, captures the essence of the matter when he writes Mr. Bumble’s outburst at a court decision. “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass – an idiot.”
So, how far have we traveled down this murky path and where will it lead? What we know so far is that corporations are entitled to freedom of speech (Citizens United v. FEC) and that their religious beliefs must be respected (Burwell v. Hobby Lobby). And in the sense of the Fourteenth Amendment, the courts have interpreted that corporations are entitled to all proper protections afforded real persons like you and me (numerous cases).
The justification given is that corporations are associations of citizens and that such citizens should retain their rights even when they are acting in concert. If this fiction is to be consistently maintained, why then are corporations not afforded protection against self-incrimination and why are corporations discriminated under our tax laws?
In accepted usage, a population is an aggregation of persons inhabiting a specific area. When the Constitution (Article I, Section 2, Clause 3) requires an enumeration of the population for apportioning direct taxes and representatives, it requires an actual count of persons. There has been some dispute as to whether sampling as needed for practicality is permitted, but no one argues that some persons should be deliberately omitted. So why aren’t corporations counted? They are taxed are they not?
These ruminations don’t mean that I seriously believe that we should apply, in Emerson’s famous words, “a foolish consistency [that] is the hobgoblin of little minds.” Rather I intend to point out that this whole situation is the perfect example what Mr. Bumble meant.