Comment by grellas | Hacker News Reader

Comment by grellas | Hacker News Reader

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Were corporations not accorded protections under the Bill of Rights (as argued in this piece on the theory that "state-created entities" are artificial and were not intended to be covered by such protections), among other things:

1. The government could conduct searches and seizures at will of corporate property in disregard of the Fourth Amendment.

2. It could take corporate property without compensation in disregard of the Fifth.

3. It could deny the rights of free speech to the New York Times and other corporate entities in disregard of the First.

4. It could deny the right of religious expression to churches, synagogues and other religious organizations that are incorporated.

Nor, if the logic of this piece were to be followed that "state-created entities" should not be protected under the Bill of Rights, would any other legally-recognized entity be entitled to such protections.

How about:

1. Universities.

2. Schools.

3. Charities.

4. Partnerships, LLCs, trusts, and other business entities (want the government to confiscate the IP or other assets of your startup and say it owes you nothing because it is not you but a mere "state-created entity" from which it is taking the property?).

This list could go on and on at great length.

The analysis in this piece may be something that one may want to advocate as some sort of ideal but, in terms of law, history, etc., it is quite flawed. I think this is more a talking point in the recent uproar over the Citizens United case than it is a serious point of constitutional discussion.

Let's actually take a look at the two scenarios.

In the case of corporation-owned property, the shareholders indirectly own the property itself. If the government takes away the property, the shareholders lose the property, and the government violates the takings clause insofar as individual humans have lost money.

In the case of corporate speech, the shareholders are not speaking at all. Instead, executives are speaking, protected from the consequences of their speech by the corporate shield. In comparison with the above case, nothing stops the individual executives or the individual shareholders from speaking, either by themselves or in concert with others.

What I'm suggesting is that the form of the corporation, which the government created to shield actors from the consequences of their actions, is not itself afforded the right to speech.

Corporations, by definition, cannot have natural rights, and since they don’t exist outside of government, cannot have surrendered any autonomy to the government. Therefore, the Bill of Rights, and the First Amendment, cannot apply to them. QED.

My comment was primarily directed to the concluding statements (quoted above) that posit a deductive argument in absolute terms and that conclude that the Bill of Rights "cannot apply" to corporations. This absolute position simply cannot be defended based on the law. I agree with you that the issue can get more complicated if the point is limited to the question of free speech. That doesn't mean, though, that the argument is not overstated, which I think it is.

By the way, the distinction you make between rights accorded to entities versus rights accorded to individuals through entities is an important one and a thoughtful discussion on this distinction may be found here: http://www.professorbainbridge.com/professorbainbridgecom/20....

In the case of corporate speech, employees of the corporation are speaking as directed (ultimately) by the board of directors. The BOD is elected by the shareholders.

The majority of shareholders selected the BOD, while the minority agreed to use their property (their share of the corporation) in furtherance of the goals of the majority as per the corporate charter.

This seems like a false dilemma - either corporations are legally protected as individuals by the Bill of Rights, or they are totally unprotected. Wouldn't it make sense to treat them as something other than people, since they are not, in fact, people, and give them a separate set of protections?

To expand, corporations came into existence so that an entity other than an entity other than individuals could own property, and so that the individuals could take on risks without bankrupting themselves, right? Couldn't that be honored without treating corporations like individuals?

For-profit corporations (and similar business entities) are sanctioned by law not just for limited liability purposes but also to facilitate business goals that arise when people want to associate for some sort of concerted action. Thus, a corporate format facilitates sophisticated ways by which people can own and do things through concerted efforts, by which they can transfer their ownership interests or borrow against them while putting them up as collateral, by which they can divide management from ownership such that an enterprise can be owned by broad numbers of passive investors while being managed by (supposedly) expert executives, etc.

If corporations are so sanctioned, they must be given at least some enforceable rights by which they can legally protect and promote their interests (e.g., the right to sue). Were they denied such rights, then the only way, for example, that a corporate entity could sue to collect a debt would be for the lawsuit to be filed in the several names of the owners - a clearly unworkable way to proceed for any organization that becomes much more than a family-owned entity. Thus, the law creates what it clearly recognizes as a fiction and gives rights to the entities to act in their own names. The label put on this fiction is that of a "legal person" - that is, one that the law knows is not a living, breathing human being but that the law treats as having rights similar to those held by real individuals for the limited purposes for which this is needed.

As it does this sort of thing, the law does not treat corporations like individuals but only as "legal persons" insofar as that fiction is needed to give the entity rights consistent with its nature. But those rights certainly must include some of the constitutional rights that are needed to prevent the entity from having its property arbitrarily confiscated or its premises arbitrarily searched, etc., and that is why the law has always recognized such rights on behalf of the fictional "persons" it protects.

In other words, I think the law already does adapt the nature of the rights recognized to the nature of the "person" being protected and it is not therefore all or nothing (corporations cannot vote, for instance).

In theory, this "legal-personhood" method of protecting corporate rights could be scrapped in favor of another that did not call them "persons" but I think this would be a distinction without a difference as the goal of the law would remain trying to accord rights to legally-sanctioned entities consistent with their nature and nothing more.

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