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Saturday, January 21, 2012

More on Corporate Personhood: The Eternal Return of Public Law Theory and Scholarship

It's not just Citizens United that has had people thinking about corporate citizenship and group personality in the past little while.  The recently released decisions in Hosanna-Tabor, too, are directly relevant to these issues.  Coincidentally, for the book I'm finishing (or desperately trying to finish) on First Amendment Institutions, I've been delving back into the work of a century and more ago: the age of the British pluralists, some of whose key figures include Maitland, Figgis, Laski, Barker, and others, and some of whom also drew on the German jurist Gierke.  I am struck, and not for the first time, by just how much constitutional law and the debates it produces represent an almost eternal cycle, an eternal movement of the pendulum back and forth between different modes of thinking about some of these issues.  That goes for both sides of the debate, certainly; it's a treat to dig into the Holmes-Laski or Holmes-Pollock correspondence and find Holmes expressing his skepticism about these writers' views on group sovereignty and personality.  Doubtless one could go still further back to Athanasius.  (I am not surprised that one of the finer constitutional law scholars working today, Adrian Vermeule, increasingly relies not just on the latest social science literature, but on close analyses of much older writers.)

The longer I am in this line of work, the more I think there is a kind of inevitable pattern to many scholars' lifecycles in this area.  One starts with immediacy and certainty: one dives into the present debate, and does so more or less loyal to a particular position and aiming at definitive reform consistent with one's views.  Some remain there for their whole careers.  But if you want to stick with these issues and deepen your understanding of them, you are eventually going to find yourself going further and further back--not to the Founding, necessarily, since (in my humble view) people who move between the Founding and the present with no stops in between or further back are going to make little real intellectual progress.  At a minimum, to understand Hosanna-Tabor or Citizens United at least, you will have to go a century back.  Whether you choose to go still further in time and place, to the reception of Roman law in Germany and Italy, is up to you.  However far you go, the shine will surely be taken off your sense of immediacy, as you realize that all this has happened before, in one form or another.  And it is little wonder too that, for many of us, the longer one does this, the less faith one places in either certainty, doctrinalism, or reform.  (To be sure, there will always be die-hard reformers who, oddly enough, insist on living in the present.)  It's all very well to argue that corporations are persons or not persons.  But the longer one examines these issues, the clearer it is that these debates have all aired before, and that the stronger the position you push on one side, the likelier it is that the pendulum will eventually swing back in a fairly short period of time -- say 50 or a hundred years.  As usual, Ecclesiastes has us all dead to rights: there is nothing new under the sun, and all is vanity.  Too much of this realization and you will cease being fun at parties.

This seems like a bit of a frolic and detour, but there's a point here.  Of course there is something to be said for being deeply engaged in the issues of your time; you don't go to norm enterpreneurs for a sense of historical perspective.  But if you would like to understand these issues rather than merely influencing them, you would do well to abandon today's newspapers and go digging in the basement of your law library.  For those who have been interested in these issues in the context of church autonomy and Hosanna-Tabor, or corporate personhood and Citizens United, I strongly recommend that they look up books like this one or this one or this one.  They won't tell you much about whether the Supreme Court was right or wrong in either of those cases, but they will tell you a good deal about the subterranean foundations of the arguments in those cases, and remind how you thoroughly the foundation has been left neglected: by most scholars, virtually all "norm enterpreneurs," and all of the judges.  It's a shame that more people writing about these issues, certainly including the judges, have not so much as heard of the Wee Free Church of Scotland.

Posted by Paul Horwitz on January 21, 2012 at 10:24 AM in Paul Horwitz | Permalink


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I have what seems to me to be a novel legal theory regarding corporate personhood. In the few hours of reading I have applied to the subject I can find no testing of corporate personhood against the 13th amendment.
The 13 amendment outlaws slavery and indentured servitude so you could paraphrase it as "their shall be no market in people" or in a math sense "people cannot equal property". Therefor it is axiomatic that property cannot be people.
Corporations are definitely property. State and federal governments can create them. They do not create themselves. If they are people then the state can create people and this is untenable to the natural human rights the U.S.A. was founded upon.
I see no need for corporations to have a special person status. All the details regarding legal entity issues can be dealt with through legislation to insure that property rights are maintained.
All that I read regarding the case law regarding corporate personhood legal theory seems overwrought with complex contradictions.
Some attorney needs to invoke the 13th amendment in a case regarding corporate personhood so the theory can be ruled unconstitutional!

Posted by: Ed McMorrow | Feb 19, 2012 7:34:58 PM

It's a pleasure to receive a comment like this; thanks. To my mind, there is a kind of oddity in the life-cycle of the scholar, and the selection criteria of law schools in hiring, in that we often emphasize novelty and originality in hiring and at the pre-tenure stage, but in the long run novelty seems to me a goal that can only sustain those who ultimately do not really appreciate and dig into the richness of their subject. As for the potential downer effect of the sense that this has all happened before, I hope to write a little more on the ways in which this is not entirely true, one of the most important of which is the addition of techne: of a variety of new and developing skills, methods, and insights that may help us understand these eternal debates better, and how they apply to present conditions. But another way of finding solace in the enterprise given its eternally recurring nature, for me at least, is over time to become more interested in historical and meta-aspects of our work. One can become more focused not on solving problems, but on thinking about the reasons why certain problems recur and the ways in which they subtly modify over time. (i.e., Laski wanted to use his work on sovereignty to show that the state now occupied the suffocating role once occupied by the church in society, and to use this not primarily for the cause of church freedom but of trade unionism. Today, the same ideas might be used to focus on churches once again. And so on.) It also becomes fun to consider the history of the profession as well. I love Tushnet's piece on the Harvard Law Review Forewords and recommend it to you. I also, these days, have found the life of Mark DeWolfe Howe fascinating. Anyway, take heart; there are many more ways than one to find sustenance in one's calling even as one's sense of it fills out and one is no longer satisfied with novelty or reform alone. Best wishes.

Posted by: Paul Horwitz | Jan 22, 2012 12:15:26 PM

This was the perfect post for me to see this morning, so thank you. I write on public law issues and have found myself going further and further back and just last night kind of spiraling down the "it's all cyclical, nothing is new" vortex. Lucky for me, I was not at a dinner party last night. But, as a relatively new scholar, seeing your post this morning revitalizes me to get back to the historical work on public law. So thanks.

Posted by: anon | Jan 22, 2012 10:33:35 AM

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