If Corporations Are Persons, What Does That Make Us?

By Daniel Liechty | February 24, 2011

I found myself eavesdropping yesterday on a heated discussion at the student center here on campus about the January 2010 Supreme Court decision, “Citizens United v. Federal Election Commission.” The students involved in this discussion were well versed in the issues, and I learned a lot listening in. Although the general idea of “legal person” applied to corporate entities has a long history in western legal tradition, its employment has been mainly to limit the ability of corporations to escape accountability for their actions–most specifically it has upheld the right of those harmed by the actions of corporations to sue, as they would a person. So while it is often repeated in the popular press that the “Citizens United” decision granted “personhood” to corporations, that is not quite true. What this decision did do is to move the concept of corporate personhood into new territory, beyond the “negative” area of liability. By underlining a corporation’s right to “free speech,” this decision radically moves the concept of corporate personhood, including “positive” human rights, possibly even Constitutional protections as spelled out in the Bill of Rights and later amendments.

Reflecting on what I was hearing, a few thoughts came to mind. It initially just seems crazy to think that corporations could really be seen as persons in the fullest sense. After all, corporations don’t think, introspect, wax poetic, fall in love, or much of anything else that we commonly associate with ourselves as persons. What, are these guys crazy (guys, period–the 5-4 decision had only men in the majority.) But then again, these are all aspects of our lives more or less confined to the private sphere. What about our “public personhood,” that is, our engagement in meaningful citizenship? The line this Court is pushing suggests that full personhood applies to corporations as actors in the public sphere.

Although I in no way support the Court’s decision, at least through this lens the logic begins to fall into place. Over the past 40 years, we have become a nation whose “common sense” reflects fee-market ideology almost exclusively. As such, our own images of public lives, our notions of meaningful collective citizenship, has been systematically truncated (“there is no such thing as society, only individuals and families,” is how one free-market ideologue characterized the social contract) and our sense of public personhood, along with the positive rights that undergird it, have been reduced to market-driven rights of property ownership, of business and trade (as entrepreneur or consumers) and of suing and being sued in court. All else is relegated to the private sphere and made irrelevant, even positively out of place, in the public square.

In this light, in the “Citizens United” decision, perhaps the Supreme Court majority did not so much expand the notion of public personhood to include corporations, as it did simply to acknowledge and ensconce in the law of the land the fact that our society and culture has so narrowed the scope and meaning of public personhood that there is no longer any clear reason not to include corporations as well under this blunted and truncated umbrella.

And of all the issues this case brings up, that one, I think, is the most troubling of all.