A Philosopher's Blog

Corporations & Religious Freedom II: That Person Thing

Posted in Business, Ethics, Philosophy, Politics by Michael LaBossiere on November 8, 2013
U.S Postage Stamp, 1957

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In my previous essay on corporations and religious freedom, I addressed the issue of whether or not being compelled to provide a health plan that covers contraception is a violation of a corporation’s religious freedom. My conclusion was that it was not. I now turn to the more general issue of whether or not a for-profit corporation is the sort of legal (fictional) entity that can be justly ascribed the capacity for religious belief and hence a right to exercise religious freedom.

As noted in the previous essay, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.

This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

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Corporations as People

Posted in Ethics, Law, Metaphysics, Philosophy, Universities & Colleges by Michael LaBossiere on November 21, 2011
Immanuel Kant developed his own version of the...

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Due to some oversight in my education, I had read various philosophical accounts of person hood before I was exposed to the seemingly absurd notion that corporations are persons. Of course, corporations are legally persons-they would generally fail to meet most philosophical definitions of person. Being a legal person is, as might be imagined, rather different from being a person in the philosophical sense. Philosophical accounts of what it is to be a person are generally subject to rather demanding criticisms based on intuitions, logic and so forth. In the case of legal persons, this seems to be largely a matter of getting a law or ruling that says that X is a legal person. There is, as far as I know, no requirement that such a law be well founded, well argued or even intuitively plausible. In theory, then, anything could be made into a legal person-subject to the whims of voters, lawyers or judges.

While I have argued elsewhere that corporations should not be considered persons, I am going to (at least for the sake of this short essay) reverse my usual view and instead say that the person hood of corporations should be embraced. They should be regarded as persons like any other person and accorded to full moral and legal status as persons (including rights, duties and obligations).

This would, on the face of it, entail that corporations should be treated just like any other person for tax purposes. After all, for me to fall under special tax laws because I am a Mohawk-French-English American would seem unfair to other Americans. Likewise, the fact that someone is a corporate-American (no doubt with multiple citizenships) should not thus entitle them to special treatment in this regard. As such, if a corporation really is a person, then they should fill out the standard tax forms and be entitled only to the standard deductions and so on. Alternatively, we should all receive the same tax (and other legal) rights as the corporation-Americans (or corporation-Australians or whatever). Given the benefits corporation receive, the rest of us would seem to be second class people in comparison. This seems to be wrong.

It might be replied that corporations, the legal people,  are special and thus entitled to benefits that lesser “meaty people” are not entitled to. This would seem to be a rather hateful sort of discrimination against us meaties in favor of the legalies. Then again, it could be accepted that the corporation is merely a legal fiction that is perpetuated because of its benefits to certain people (someone would need to break the news to Mitt Romney, though).

This view would also seem to entail that corporations would need to be citizens and thus entitled to all the benefits and responsibilities. To deny corporation-Americans the right to vote would seem to be a gross violation of their person hood. They should also be obligated to serve on juries, to register for selective service (well, at least the male corporations), and they should be counted in the census. There is, of course, the obvious problem of how the corporation-person would actually engage in voting or serve on the jury. After all, unlike other persons, the corporation person seems to have no actual nexus of person hood that could be in a specific location. There is also the problem that the corporation-person cannot actually think, talk, or write-unless it is accepted that it takes possession of employees and speaks through them. If so, the corporation could thus send a possessed member to vote, to serve on the jury or to serve in the military if it is drafted in times of war. Or perhaps the whole entity is the corporation-a collective person. In that case, the whole thing would seem to be the person. This would make the jury room rather crowded, should a corporation get summoned for duty.

It might be replied that this is all rather silly. Corporations are not some sort of mind that can possess individuals (as the gods were said to possess the oracles at Delphi) nor are they a collective mind composed of the people that work for them and the things they own. After all corporations have no minds, no personalities, no feelings, no thoughts, no beliefs, no desires, no perceptions, no life and so on. There would seem to be, to steal a bit from Nagasena, no self in regards to corporations. This, one might suspect, would seem to entail that they cannot be people-after all, nothing cannot be a person. Then again, perhaps it is wisest to again take them to be mere legal fictions rather than people in any meaningful sense. This would, of course, include granting them constitutional rights on the basis of being actual people.

However, I am committed to trying to treat corporations as people. Perhaps they can be treated as people in terms of their moral status and moral obligations. Of course, if they are morally people, then this would seem to have some interesting implications for moral theories. Since corporations apparently cannot possess virtues, then virtue theory would be out as a moral theory. The same would also apply to many forms of utilitarianism. Since, for example, corporations do not feel pleasure or pain, they would not count morally, so these theories would need to be rejected. Kant’s theory would also be right out-his account of persons and the role they play in morality would be completely incompatible with the corporation-person.  Of course, there is always the option of arguing that there are persons and there are corporation-people. They are both persons, but different sort of persons in fundamental ways. So different that one might suspect that corporations are not people.

I will be writing more about taking corporations to be people in the moral sense.

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Free Speech & Corporations

Posted in Law, Philosophy, Politics by Michael LaBossiere on December 13, 2010
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Now that finals are over, I have been catching up on my reading. While reading the latest issue of Newsweek, George  Will’s article on the first amendment and corporations caught my attention.

Will quotes William R. Maurer of the Institute for Justice  in regards to the Citizens United ruling: “Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that First Amendment rights dissipate the minute one person begins to act in concert with another would neuter the Bill of Rights.”

The ruling in question overturned  a law (part of the McCain-Feingold act) that banned corporations and unions from buying political ads. The law did not change the ban on direct contributions to candidates by corporations, but it does allow them to purchase ads that are independent of campaigns conducted by candidates. So, for example, a corporation could not directly fund Candidate John Doe, but could purchase ads attacking his opponent Candidate John Smith.

While Maurer’s point has a certain appeal, I believe that he is mistaken.

The gist of his argument seems to be that denying a collective the right to purchase ads as a collective would violate the 1st Amendment. The 1st Amendment states:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While a strict constructionist might simply  note that there is no reference to the freedom of a collective to purchase political advertisements, I will not push that point. I will, instead, take a different approach.

One key concern is the matter of whose right would be violated by the limit on corporate and union spending. On the face of it, individuals would face no loss of rights. After all, the individual’s freedom of speech would be unharmed by this sort of ban. Of course, the obvious reply is that the individual’s right to freedom of speech would by limited because s/he could not join with others to create a corporation or union that would thus be able to spend money to purchase political advertisements.

However, there is something questionable about this. Consider Maurer’s argument with a bit of a modification:

Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that voting rights dissipate the minute one person begins to act in concert with another would neuter the right to vote.

Now, it would seem that if the original argument holds, then this line of reasoning about voting should hold as well. That is, corporations and unions should also have the right to vote. While this would no doubt be favored by some corporate and union folks, this seems rather absurd.

An obvious reply is, of course, that voting rights and the freedom of speech differ in ways that prevent this parity of reasoning tactic. That does have a certain plausibility but does require spelling out how one individual right can be legitimately “upgraded” to a collective right while another right applies on to the individual and not the collective.

Another approach that can be taken is to grant (for the sake of the argument)  that there is a collective right of free speech and then consider under what conditions that free speech can be justly limited. For example, the GOP recently pressured the Smithsonian to remove a video depicting a crucifix covered in ants. Presumably, the GOP folks involved in this accept that free speech has its limits. In this case, their view seems to be that publicly funded art institutions should be subject to review by the GOP in regards to what should and should not be expressed. As another example, harmful expression (such as the classic case of yelling “fire” in a crowded theater”) can also be justly limited.

In the case of corporate and union spending, it could thus be argued that allowing such spending will create significant harms to the democratic process. For example, it can be argued that it will give corporations and unions disproportional influence in elections. After all, a multi-billion dollar corporation will have considerably more financial resources than a comparable number of individuals acting on their own. This seems to be a reasonable concern and does seem to provide a possible justification for limiting collective spending in the political arena.

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