I am an American citizen. My government, in part created by me, insists that I act within certain norms: that I be a "good citizen." If I fail to do so, I must pay penalties (after due process of law). That's a basic part of the social contract we all agree to as Americans. In fact, it's a necessary part: as part of a society I surrender certain rights to that society (i.e. the right to avenge acts against me by committing acts to that person) in order to create a stable society. I believe that concept is desirable and necessary.
Corporations are created by me. I mean that in the legal/constitutional sense. The government I created/participate in/am a part of has passed laws that allow corporations to exist (see Dean Baker's The Conservative Nanny State). The Supreme Court, long ago, assigned corporations elements of "personhood" in that they are separate legal entities from those who own them. Yes, that is a legal fiction, but has been affirmed over and over.
If I must be a good citizen, why does a corporation not? If I can suffer the death penalty for committing certain crimes, why do corporations not, potentially, live under the threat (again, after due process) of "corporate deaths" if they fail to act as good, responsible citizens? Can it possibly be true that the only punishments possible for these behemoths are fines? Yes, I know that, in theory, corporate heads can be held criminally liable for acts of their companies, but when does that actually happen?
I'm not sure I buy the idea of corporate personhood, but I find it impossible to see any logic in the idea that this fictional legal entity has more legal rights than I do: that it can subvert all other moral realities except the mindless desire to pursue profits, that it can buy itself access (yeah right--just "access") to politicians that actual, breathing people cannot (for instance). I can be arrested for all sorts of "crimes" that corporations regularly commit: extortion, political influence peddling, bribery, to name but a few. But somehow, somewhere, we as a society have decided that corporations, in their pursuit of profit, can ignore them all.
The above paragraphs were written and stored before the BP Gulf disaster. They are even more urgent now, perhaps even prescient.
Glenn Greenwald (subscription required), when writing about the Citizens United case responded to some of his critics who doubted the "corporate personhood" concept by noting that the dissenters (including John Paul Stevens who wrote that dissent) on the Court did not challenge this concept in their opinion, and pretty much left his argument at that. Intimation: the very concept is such settled law that no legal scholar will, any longer, challenge it.
I'm a big fan of Greenwald, but I think he was too parochial here. As a society we need to begin thinking farther "outside the box" (sorry, I hate that cliché). We need to begin, again, more forcefully guarding ourselves against these money-eating monsters in the name of a civil society.
No, I am no socialist. I believe very much in the free enterprise system, as long as it is tempered by a reasonable countervailing attention to individual rights. The old constitutional saw works well here: "your rights end where mine begin." We have swung way too far toward corporate interests and away from individual:
- Isn't Walmart subverting law with many of the strategies it uses to resist unionization in its stores? Where is the enforcement? It accomplishes this only because it knows no one will hold it accountable.
- Is there really any virtue in the "takings doctrine," that suggests any limit on corporate profits from law are due, by the people, back to that corporation for interfering with its ability to make money? (And while we're at it: if we owe corporations money for limiting their profits, do they not also owe us for ruining the place where we live?)
