Before corporations were people

by February 23, 2012

A sign at the Occupy Wall Street protests (Photo: Flickr/david_shankbone)

The protection of corporate “speech” has been a contentious subject in the United States, most recently so in the Citizens United v. Federal Election Commission decision of 2010, in which the U.S. Supreme Court used the First Amendment to prohibit any restrictions on political speech and on expenditures related to political speech by corporations. Many observers worried that this would significantly un-level the playing field between individual citizens and the immense financial resources of corporations–the average American cannot afford to hire lobbyists to amplify his or her viewpoints, after all, nor to buy ad space in the New York Times. But for all that the decision seemed somehow to be of a piece with the recent increase in the role of financial power in the U.S. political system, its proponents based their arguments on a re-invigoration of an old principle: that corporations are considered “persons” under the law.

Yet venerability is not necessarily a trump card. In a carefully argued essay on History News Network (HNN.com), Rutgers professor of history James Livingston summons up the context in which the idea of corporate personhood arose, noting that in the later nineteenth century it had become apparent to most American thinkers that the old assumptions of a nation made up of propertied, bourgeois citizens no longer held. With the spread of industrialization came the rise of massive, vertically-integrated corporations, and of a working class (not yet organized) that had little in common with the small-scale merchants and landowners of previous generations. Writes Livingston,

[Every] sentient being knew that the old individualism was at risk in the new world wrought by powerful collective associations. Corporate personhood was just one version of what came to be known as the “social self”—it was just one component of what [William] James called a “pluralistic universe,” what Horace Kallen called “cultural pluralism,” and what we have come to know and love (or loathe) as “identity politics.”

Here’s how A. Lawrence Lowell, the president of Harvard University, characterized the possibilities of the newly pluralistic political universe—in 1913: “The last century has certainly been marked by an apparent increase of corporate, as compared with personal, motives. A hundred years ago democratic theories were individualistic. They treated the state as a sum of equal and independent units. Now we have learned that man is a social being, not only in Aristotle’s sense, that he is constrained by his nature to be a member of a state, but also in the broader sense that he is bound by subtle ties to other and smaller groups of persons…. We have learned to recognize this, and what is more, with the ease of organization fostered by modern conditions, the number, the complexity, and the aggregate strength of such ties have increased. No one can have observed social life carefully, under any aspect, without seeing that cooperative interests have in some measure replaced personal ones, that in its conscious spirit western civilization has become less individualistic, more highly organized, or, if you will, more socialistic.” [Public Opinion and Popular Government (1913)]

Livingston digs even deeper than this, however, examining the Founders’ “original intent” (a phrase that normally needs a warning label, but not in this case) and asking whether corporate personhood in fact runs counter to it. Read the full essay here.