I'll link only to my most recent critique of corporate personhood from which the interested reader can progress to the many other items I've posted on this topic. (I had no idea when I first commented on the rights of corporations in 2009 that I was onto something really BIG.)
In any event, colleague Haskell Murray sent me to a post by Professor Stephen Bainbridge here in which he discusses a proposed amendment to the Montana constitution that would seek to deny to corporations all attributes of personhood (read the official text here). Talk about throwing the baby out with the bathwater!
I think Bainbridge misunderstands the nature of corporate existence and the grounds for corporate rights. (Not that he cares what I think; he's one of the two or three leading scholars of corporate law in America.) Brainbridge believes that corporations are grounded in a "nexus of contracts," which, if true, makes me wonder why the corporation is a shield against claims of involuntary creditors like tort claimants. (For a related discussion, see The Missing Piece of the Puzzle: Perspectives on the Wage Priority in Bankruptcy (abstract here).) He also seems wedded to Enlightenment natural rights theory rather than the older and typically Catholic natural law approach to justice, which is a bit puzzling given his conversion to Catholicism a little over a decade ago (see Bainbridge's early comments on Catholic Social Thought here).
In any event, I fully agree that a selective legal de-legitimization of human associations like the corporation (note that Montana's amendment would not effect unions) is little more than political grandstanding. Human associations with legal rights like the corporation preceded the modern nation state. Corporations first came into prominence in the Middle Ages and only gradually came under royal and then parliamentary control.
As with so much of human activity, the modern nation state has inexorably arrogated to itself the power to create the corporate form of association. Coupled with sole legitimate access to coercive force and centralization of judicial power, state legislative control of the corporate form raises legitimate concerns about where a constitutional amendment like Montana's might take us.
One need not be a libertarian to perceive the threat that withdrawal of legal existence to one form of associational life might lead to further such steps in the future. Churches, anyone?
As I noted in the link to my blog earlier in this post, the conclusion that human associations are jural entities with rights does not entail that they have all the rights of individuals. In other words, one can disagree with Citizens United and not follow the path toward a selective elimination of the rights of associations with which some disagree politically.
In any event, colleague Haskell Murray sent me to a post by Professor Stephen Bainbridge here in which he discusses a proposed amendment to the Montana constitution that would seek to deny to corporations all attributes of personhood (read the official text here). Talk about throwing the baby out with the bathwater!
I think Bainbridge misunderstands the nature of corporate existence and the grounds for corporate rights. (Not that he cares what I think; he's one of the two or three leading scholars of corporate law in America.) Brainbridge believes that corporations are grounded in a "nexus of contracts," which, if true, makes me wonder why the corporation is a shield against claims of involuntary creditors like tort claimants. (For a related discussion, see The Missing Piece of the Puzzle: Perspectives on the Wage Priority in Bankruptcy (abstract here).) He also seems wedded to Enlightenment natural rights theory rather than the older and typically Catholic natural law approach to justice, which is a bit puzzling given his conversion to Catholicism a little over a decade ago (see Bainbridge's early comments on Catholic Social Thought here).
In any event, I fully agree that a selective legal de-legitimization of human associations like the corporation (note that Montana's amendment would not effect unions) is little more than political grandstanding. Human associations with legal rights like the corporation preceded the modern nation state. Corporations first came into prominence in the Middle Ages and only gradually came under royal and then parliamentary control.
As with so much of human activity, the modern nation state has inexorably arrogated to itself the power to create the corporate form of association. Coupled with sole legitimate access to coercive force and centralization of judicial power, state legislative control of the corporate form raises legitimate concerns about where a constitutional amendment like Montana's might take us.
One need not be a libertarian to perceive the threat that withdrawal of legal existence to one form of associational life might lead to further such steps in the future. Churches, anyone?
As I noted in the link to my blog earlier in this post, the conclusion that human associations are jural entities with rights does not entail that they have all the rights of individuals. In other words, one can disagree with Citizens United and not follow the path toward a selective elimination of the rights of associations with which some disagree politically.
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