From Academic Kids

NPOV alert. First of all, it wiki links around the word corperations, but I believe that article talks about all types of corperations in general, and it seems pretty clear that the coporate personhood concept refrences to a certain type of corporation in particular. I mean, in the basic sense of corporation, communism is a corporate form of government, since everything can be seen as being controlled by one company which everyone owns equal stock in.

A corporation is widely considered to be any organization with limited liability.

JeffBobFrank 01:39, 19 Feb 2004 (UTC)

Secondly, this article reeks of the same type of ideas prevelant in anti federal-reserve retoric conspiracy theories, which can be found in a few other articles. If you don't know what I mean, and don't care, ignore this. But if you do read some anti fed websites.

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This definately violates NPOV. If the arguments *against* corporate personhood are given, we must also have the arguments *for*, as this is widely recognized as a contensious issue.<p> I think the text: "The moral and legal depravity of the Supreme Court during this period" demonstrates the general tenor of the article. While I agree with the majority of the issues presented, I don't think this is the place for political rhetoric. <p> As a further note, the article is written in a persuasive, rather than informative style. That is: information (facts) are not presented so as to familiaize the reader with the idea of "corporate personhood", but rather read much like an argument. It "builds a case", and as such cannot be construed as anything but biased.<p> This articles needs work! I would be the one to do it, but I do not feel qualified to speak about corporate personhood (was hoping to learn something by coming here). <p>

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Obligatory disclaimer/claim of credential: I am a corporate lawyer, but I (would like to think) I have an open mind.

I would be willing to do some major work on this, but I think the article is written should probably be scrapped and started over from scratch.

There are several problems with this article:

1. First, it conflates a discussion of / argument against corporate personhood generally with a discussion of / argument against treating corporations as persons entitled to constitutional protections.

2. Second, it is at best misleading, and at worst wrong, about the effect of treating corporations as constitutional persons.

3. General anti-corporate bias.

1. Okay, first its important to realize that “corporate personhood” is not a unitary concept. The law can, and does treat corporations (“artificial persons”) and natural persons the same in some respects (ability to hold property, ability to sue and be sued) but differently in other respects (income tax). This is not a new phenomenon, corporate personhood is as old as the Middle Ages, and exceptional treatment is as old as the English Statute of Mortmain (1279).

Thus the article is just wrong when it says:

Until 1886 corporations were not considered persons. It was clear what they were: artificial creations of their owners and the state legislatures. They were regulated and taxed. They could sue and be sued. They were subject to all of the laws of the land as well as any restrictions placed in their charters.

Corporations were both (possessed of the rights of) “persons” and “artificial creations.”

However, this sets paragraph sets up a major thesis, which is that Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394 (1886) somehow “converted artificial entities into the legal equivalent of natural persons.” This thesis is just a really bad example of reification. The Santa Clara Country case did not find that corporations are persons for all purposes under the law; instead it found that corporations are “persons” under the 14th Amendment, i.e. corporations would be treated the same as natural persons for the limited purposes of the 14th Amendment (actually not even the whole 14th Amendment, just the “due process” part).

IIRC They applied the equal protection clause, so under their reasoning they are people for all intents under state laws at least.

JeffBobFrank 01:39, 19 Feb 2004 (UTC)

The point is that you can have a useful debate about whether corporations should be entitled to such rights as the ability to hold property, sue in court or the right to due process (which carried a lot of baggage in the 19th century, but as I note below, doesn’t anymore). But it is not illuminating to conduct that debate in terms of whether a corporation should be a “legal person.” This is just a clumsy bit of doctrine.

2. The really bizarre thing about this is that, with only a few exceptions and contrary to the strident tone of the article, changing the law so that corporations don’t enjoy any constitutional rights would hardly make a difference because, generally speaking, corporations don’t derive much benefit from constitutional law (as it stands at the end of the 20th century).

Another thesis of the article is:

Corporate constitutional rights effectively invert the relationship between the government and the corporations. Recognized as persons, corporations lose much of their status as subjects of the government. Although artificial creations of their owners and the governments, as legal persons they have a degree of immunity to government supervision.

The problem with the thesis is that, with some exceptions I'll discuss below, the constitution provides corporations with very few protections that a (business) corporation could use; this is largely because courts have, more or less, retreated from treating economic and property rights as entitled to constitutional protection. In the latter half of the 20th century, the story of constitutional law has been the protection of minority (individual) rights and coordination among government bodies.

It is telling that the 14th Amendment, which item was in dispute in Santa Clara County v. Southern Pacific is no longer used by courts to shelter economic activity from state intervention. During the 19th century the doctrine of “substantive due process,” in the “Slaughterhouse” cases struck down a variety of state regulations of economic activity. Corporations, entitled to the protection of the 14th Amendment, were major beneficiaries. In this context, the article has a justified point, in that corporations were receiving a major benefit that (perhaps) they shouldn’t have received.

But, “substantive due process” as a protection against economic regulation was abandoned during FDR’s term (the famous “switch in time that saved nine”). The foes of corporate beneficiaries of the 14th Amendment won, not by excluding corporations, but by gutting the (economic) protections of the 14th Amendment. Today, the 14th Amendment is used to protect against racial and sexual discrimination.

Now, the exceptions. In the economic and property sphere, corporations could take advantage of so-called "takings" jurisprudence which limits government's ability to take property without paying just compensation. This has some theoretical utility, but as a practical matter corporations can't make much use of it for reasons that are probably too involved to get into here (here's a teaser: taking 99% of the value of an enterprise is not a constitutional "taking").

The other major exception is corporate free speech, an issue which has resonance today due to campaign finance laws. Whether or not conglomerations of people should be entitled to free speech is an interesting issue (and I'll admit my bias by noting that both the Sierra Club and the New York Times enjoy their free speech rights), but, to return to the above discussion, it is more usefully analyzed as a question of whether corporations should have free speech rights rather than an argument about corporate personhood.

In sum, I would say that the question of corporate personality really does not, and (given the current state of substantive constitutional doctrine) can not, have much bearing on actual rights enjoyed by corporations. If the author of the article disagrees with me, I challenge him to provide a list of such rights and analysis of how they would be effected if Santa Clara was overturned.

3. General anti-corporate bias.

There is a lot of slanted language, irrelevant facts and insinuations that paint a very biased picture. Here are some examples: the focus on slavery and racial animus is irrelevant to defining the scope of a corporation’s rights; phrases like “the moral and legal depravity of the Supreme Court during this period” and “wealthy, powerful men who owned corporations wanted more power for their corporations”; and the inclusion of other instances of corporate wrongdoing and mistaken corporate decisions (Dartmouth) that are, again, irrelevant.

With regard to bias, most anything is biased. The question raised by the article presented is: what is the status of a corporation? Does it have any intrinsic rights or is it subject to rules established by legislatures. Further does each legislature have the right to treat different corporations differently. In essense the question of whether they are natural or artifical persons is legitamate. The recent cases giving corporations free speech rights is fundamental and is based on a wrong view of corporations from my point of view.

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WOW I just stopped in while fixing links to Topeka, Kansas. I haven't seen one this NPOV for a while. I agree that it needs to be re-written I can't see editing it.

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Agreed on all of the above. I'm no fan of corporations myself, but I'd like (A) a history of the legal status of corporations around the world, covering anything relevant for or against, that is (B) succinct and straightforward and, well, encyclopedic.

This is a persuasive essay on a single aspect of American corporate law, and needs to be purged, IMO. Radagast

I may agree in many ways with this persons view of corporations but its by no means a neutral view. Just thought I'd put in my two cents worth.

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No entry on this topic would be complete without dealing with 17th and 18th century debates about credit and other forms of "fictional property," which swirled especially around the South Sea Company (and which led to the first modern stock market crash -- the "South Sea Bubble"). Personhood emerges as metaphor within these debates, but so do many other ways of thinking about it. Maybe I'll whip something up, sometime. -Nick

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Aren't coporations now and corporations hundreds of years ago different things? The pre-revolution corporations that the article talks about were government granted monopolies, right? While corportations today are entities that formed to take advantage of limited liability, and to have a single entity that employees all the workers and owns all the property: if Abe, Ben, Carl and Dan got together to form "Acme Bakery", without a central coordinating entity like a coporation, you'd have a big mess were the cashiers are hired by Abe, the cooks are hired by Ben, the recipies are owned by Carl, the utensils are owned by Dan, and so on.... Right?

Of course, one could make the argument that corporations that accept the benifit of limited liability from the government should have to accept some regulations in return for that benifit, but that's a whole different matter. -- Khym Chanur 10:24, Apr 30, 2004 (UTC)

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shouldn't we put up a neutrality dispute note? it is pretty biased. - Omegatron 13:54, May 18, 2004 (UTC)

Yes, the neutrality notice was a good idea. The odd thing about this article is that on the one hand it tries to treat the Sant Clara case as a massive legal revolution, usurpation; while on the other hand it acknowledges that the court in that case was essentially following a principle laid down decades before in the Dartmouth College decision. So it wasn't so revolutionary after all. By a sort of rhetorical sleight of hand, the article focuses on the popular reaction to the Dartmouth College decision rather than on the decision itself, in order to preserve the impression that Santa Clara came out of nowhere. --Christofurio 14:21, Aug 31, 2004 (UTC)

recent changes to corporate personhood

I have made a series of changes to the wikipedia entry for corporate personhood.

The tenor of these changes is to dial back the wild haired revolutionary fervor and the wailing and gnashing of teeth. I have tried to make precise edits which keep much of the existing material but present a more balanced and fact based account of corporate personhood.

I have reviewed a number of the court cases cited and have found that the decisions as provided in both findlaw.com and Lexis Nexis have been reasonably well balanced. The most important conclusion I have reached is that the 14th Amendment has not really been used in the court cases I've reviewed.

I would like to say one thing, corporations are collections of people. A corporation is not some kind of golem or Frankenstein creature with a will of its own. It is instead a vector product composed of the vector sum of all of the wills of the individuals who work with the corporation. A corporation with good, well meaning people in it will do good, well meaning things. A corporation made up of greedy, stupid people will reflect those people in its activities.

The problem is that a corporation has a culture and the people within the corporation create a shared social reality which can become skewed and neurotic. The good thing about corporations is they are sensitive to public opinion and they are subject to regulatory action at both the state and Federal level as well as at the international level.

user:richardelainechambers

You've done well, Richard. I've made a couple of changes, too. It seemed to me that the Webster-Marshall position ought to be stated clearly, preferably in their own words. --Christofurio 22:39, Sep 4, 2004 (UTC)

Furthermore, the article still contains such oddities as the overly long Slaughterhouse Cases quotation, preceded by this explanation, "quoted at length because it is important not only to the question of corporate personhood, but to the question of civil rights," -- huh? This article is about corporate personhood, not the "question of civil rights" -- if the quotation is justified by the latter concern, why isn't it in another article instead? --Christofurio 14:32, Sep 5, 2004 (UTC)

I like the changes you've made. The article flows much beter now as well. I went looking for a copy of the Bracken decision and haven't been able to find anything yet. However I did find this interesting bit at URL http://www.supremecourthistory.org/04_library/subs_volumes/04_c02_f.html which mentions both Bracken and Dartmouth. There is an interesting quote attributed to Thomas Jefferson from his autobiography that says:

"Being elected . . . one of the Visitors of Wm. & Mary college, a self-electing body, I effected, during my residence in Williamsburg that year, a change in the organization of that institution . . . substituting a professorship of Law & Police [for the chair of theology]."

The article also mentions John Marshall and Thomas Jefferson as being "chronic adversaries". It appears that Bracken was a professor who had the chair of theology which was protected by the original charter of William and Mary. Bracken was persuaded to sue by persons unknown (a number of years elapsed between when he was discharged and his suit) and John Marshall, a Justice for the later Dartmouth decision, was Bracken's attorney. The suit was decided in Bracken's favor with the court deciding based on contract law.

Richardelainechambers 18:29, 5 Sep 2004 (UTC)

Actually according to the on-line version of Thomas Jefferson's Autobiography, (see URL http://libertyonline.hypermall.com/Jefferson/Autobiography.html ) the quote appears to be

On the 1st of June 1779. I was appointed Governor of the Commonwealth and retired from the legislature. Being elected also one of the Visitors of Wm. & Mary college, a self-electing body, I effected, during my residence in Williamsburg that year, a change in the organization of that institution by abolishing the Grammar school, and the two professorships of Divinity & Oriental languages, and substituting a professorship of Law & Police, one of Anatomy Medicine and Chemistry, and one of Modern languages; and the charter confining us to six professorships, we added the law of Nature & Nations, & the Fine Arts to the duties of the Moral professor, and Natural history to those of the professor of Mathematics and Natural philosophy.

Bracken was the professor for the Grammar school, I think.

Richardelainechambers 18:40, 5 Sep 2004 (UTC)

I think you read your source too quickly. The essay on the Bracken/Dartmouth analogy to which you've linked me doesn't say that Marshall was ever Bracken's attorney. It says he was the college's attorney -- which is consistent with the source I had in mind as well. I've never seen a copy of the Bracken decision, though. I'm taking my information on it from Herbert A. Johnson, The Chief Justiceship of John Marshall, 1801-1835 (Columbia, SC 1997) pp. 176-77. (I appreciate your work helping cleansing this article of the tone of activist pamphlet it used to have, and am glad to have helped.)--Christofurio 22:54, Sep 5, 2004 (UTC)

You are correct, I was mistaken and jumping to conclusions, and reading from pre-conceptions based on the corporate personhood article. Marshall was the attorney for the college. I found the decision in LexisNexis.

The Rev John Bracken v. The Visitors of Wm & Mary College

7 Va. 573; 1790 Supreme Court of Virgina

According to the decision handed down, the Supreme Court of Virginia decided that the Vistors of Wm & Mary College had the authority to modify the institution because the charter as "granted by William and Mary in the fourth year of their reign". The charter contains a number of provisions which are summarized in the court decision, perhaps the most important being:

The ninth section constitutes the said Francis Nicholson, &c., and their successors, true, sole, and undoubted Visitors and Governors of the said College, forever, with full and absolute liberty, power and authority of making, enacting, framing and [**4] establishing such and so many rules, laws, statutes, orders and injunctions, for the good and wholesome government of the said College, as by the said Francis Nicholson, &c., and their successors shall, from time to time, according to their various occasions and circumstances, seem most fit and expedient. All which rules, laws, statutes and injunctions so to be made as aforesaid, we will have to be observed under the penalty therein contained: Provided, notwithstanding, that the said rules, &c., be no way contrary to our prerogative royal, nor to the laws and statutes of our kingdom of England, or our colony of Virginia aforesaid, or to the canons and constitution of the Church of England, by law established.

In 1779, the Visitors adopted the proposal to reform the college. Someone neglected to record the actual meeting minutes and there was obviously some conflict about the changes. In 1784, a formal resolution was again adopted to reform the college. Bracken, by the way was let go in 1779. In 1787, Bracken asked for a writ of mandamus in a lower court and the lower court told the college to show cause why a writ should not be provided. Counsel appealed.

The Supreme Court of Virginia upheld the Vistors of William and Mary. So basically, I would suggest this court case was about whether a private corporation was subject to what would later be called due process once the Fourteenth Amendment was approved some 100 years later.

Vistor appears to have a special meaning arising from English law. There is a case Phillips v. Bury which is also quoted in Dartmouth which was decided in the 1600's. It makes a division between public corporations such as towns and private corporations. About public corporations, it also says that the "validity and justice of their private laws and Constitutions are examinable in the King's courts." This quote is from Dartmouth.

There are also eleemosynary corporations which have visitors and which appear to be a type of private educational corporation. This appears to be what the College of William and Mary as well as Dartmouth were.

See URL http://www.courtservice.gov.uk/judgmentsfiles/j2678/varma-v-duke_of_kent.htm about halfway down the document.

What Marshall seems to be arguing, a pattern I've seen in other cases of involving private corporations, is first of all the court doesn't have jurisdiction. Then he follows up with, even if in fact it does the Visitors did not exceed the powers given them by the charter.

Virginia did provide public funds to the college, Marshall calls them donations. See US public institution for five factors used in judging whether an institution is public or private by courts today.

By the way there is an additional court case in LexisNexis The Rev. John Bracken v. William and Mary College, 5 Va. 161, 1797 in which John Bracken is suing the college for back wages in the amount of 5531 sterling due him as Professor of the Grammar School covering the time from 1779 when the Grammer School was dissolved by the Visitors. A lower court found in favor of the college and the Supreme Court affirmed the lower court decision so Bracken did not collect any money.

Richardelainechambers 01:23, 6 Sep 2004 (UTC)

Loompanics article about corporations

I don't see anything particularly POV about this article. It's just stating the facts. It reminds me of an interesting Loompanics article about corporations (Why Corporations Are Not People, And The Unsavory Consequences of Pretending That They Are, by Mike Hoy) which argues that corporations are a governmental entity, since the government gives them a limited liability from torts (essentially a subsidy) that is foreign to market principles:

I'll say it again: corporations are not market entities – they are government entities. This was proven by the libertarian/objectivist Robert Hessen in his 1979 book, ironically titled In Defense of The Corporation (Hoover Institution). This is a very funny book, because he states in his prologue: “In this book, the belief that corporations require government permission to exist and that they are the recipients of special privileges will be challenged. I will present an alternative known as the 'inherence theory': i.e., corporations are created and sustained entirely by exercise of individual rights, specifically freedom of association and freedom of contract.”

Now, the essential distinguishing characteristic of the corporate form of enterprise is limited liability for torts. If Hessen (or anybody else) is going to show that corporations are contractual entities, he is going to have to demonstrate that limited liability for torts can be fully accounted for as resulting from voluntary agreements between consenting individuals. Here is where Hessen then proves the exact opposite of what he said he was going to prove. He openly admits that limited liability for torts cannot be a part of the market order! He says:

“Thus far, the inherence theory – the idea that corporate features are created by contract – has been applied to entity status, perpetual duration, and limited liability for debts. But how can limited liability for torts be explained by a contractual theory, since tort victims do not consent to limit their claims to the assets of the corporation? Surely, limited liability for torts would seem to be a state-created privilege.…

“How, if at all, can limited liability for torts be integrated into a contractual theory of corporations? The answer is that it can't… either limited liability for torts is a state-created privilege or it is contractual (which it obviously is not).”

So there, by the time the guy is only on page 19, he has already admitted that he cannot do what he said he was going to do: show that corporations are the result of voluntary agreements between individuals. He then adds: “Regardless of one's view about limited liability for torts, the whole issue is irrelevant to giant corporations, which either carry substantial liability insurance or possess sizable net assets from which claims can be paid.” (You know, like Enron.)

Rad Racer 18:58, 23 Mar 2005 (UTC)

Hessen's theory works rather well in understanding the Enron insolvency. The fraud at issue was exactly the sort that occurs in transactions among natural persons -- indeed, most of it took place through partnerships ancillary to the corporation, not through the corporation itself. that has nothing to do with the very different issue of liability for torts, the adequacy or otherwise of liability insurance (you know, like Owens Corning etc.) His point now might be that the (former) owners of equity are off the hook for Enron's liabilities. But they'd also have been able to declare bankruptcy if they had been partners, with the same effect, so that isn't much of a point about corporate personhood.

Are you talking about a limited liability partnership? I agree that his arguments apply equally well to an LLP. Neither is solely the result of contractual arrangements; the limitations on liability are instituted by the government. Rad Racer 22:19, 29 Mar 2005 (UTC)

Yet nobody speaks of LLPs as being "legal persons," although they do speak such of corporations, which is the subject of this article. So limited liability and corporate personhood are separate issues, and if an argument applies to both phenomena equally then it doesn't tell us anything specifically about the personhood of corporations after all. Further, the issue of limits of liability in general wasn't really germane to the Enron blow-up, as I've explained. Many of the victims were victimized precisely by their ownership of stock -- i.e. by the supposed 'subsidy.' And the fraud involved was the sort that happens between natural persons -- as indeed, it did. How is the above-quoted argument illustrated by that final sentence fragment? --Christofurio 00:46, Mar 30, 2005 (UTC)

As to the NPOV-ness of this article -- I agree that it doesn't merit the notice. It was pretty horribly POV when I first encountered it, but through the efforts of a few guerillas of accuracy such as myself, it was cleaned it up and its pretty much non-partisan now, as you acknowledge. It makes room both for Hoy's view and for Hessen's. You'd have to go into the page history to see what I was objecting to, back at the point where it seemed tohave been written by someone who agreed with Hoy and didn't want to leave any room for Hessen -- the definition of POV. --Christofurio 20:48, Mar 24, 2005 (UTC)