Corporations are not people and Thomas Hartmann
by Beverly Mann
Thomas Hartmann writes via Truthout:
Most Americans don’t realize that the idea that ‘corporations are people’ and ‘money is speech’ are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.
…
And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.
…
The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate ‘under such Regulations as the Congress shall make.
There are two problems with what Hartmann writes. First of all, there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense. Hartmann, like so many others who are appropriately outraged by Citizens United and earlier corporate-free-speech Supreme Court opinions, clearly intends his comments to apply only to the corporate-free-speech Supreme-Court-created laws, just as the drafters of the proposed constitutional amendment regarding corporate personhood do.
But the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property. Later, that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever. State statutes, which provide for the creation of corporations, and federal statutes do provide for these things, and although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person”, in order to make clear that the statute or regulation does apply to corporations.
So the problem of corporate personhood is that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights. Constitutional rights apply only to persons, so this pronouncement of personhood for corporations in a constitutional sense, rather than just a statutory sense (as in, say, corporations can own property), was a prerequisite to the accordance of First Amendment free-speech rights to corporations. This is a really important distinction.
The distinction gets complicated when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example. But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).
The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money, though, is hardly a right that logically can be said to derive from those shareholders’ First Amendment speech rights, the exercise of which is cannot reasonably be said to be intentionally collective; the specific expenditure is not foreseeable to shareholders, many of whom would be horrified by it. Of course, the Fab Five majority in Citizens United did pretend otherwise. But then, declaring clearly false facts in order to arrive at their result in that case is the very hallmark of that opinion.
But here’s another problem with what Hartmann and others are arguing: This claim of theirs that the courts have no authority to declare render decisions—rules of law—concerning issues of constitutional law is profoundly dangerous. It mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are simply fabricating some new rule of constitutional law.
I love Thom Hartmann. But I think his position here needs some refinement.
Beverly
“The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money, though, is hardly a right that logically can be said to derive from those shareholders’ First Amendment speech rights, the exercise of which is cannot reasonably be said to be intentionally collective; the specific expenditure is not foreseeable to shareholders, many of whom would be horrified by it.”
This is very true. Yet another reason prevailing standards in corporate governance need intensive overhaul.
Well, when I was in law school eons ago, they taught us that judges began as stand-ins for the king, who certainly did make law. The king’s decision on any matter was unappealable and stood together with all past kings’ decisions as the law of the land. So, when the judge(s) decided an issue, they spoke for the king and made law in his place. We adopted the model of English law as ours when we became independent from England.
Therefore, judges do make law every time they decide a case. Their decisions bind parties to a dispute as surely as any law made by a legislature. Congress is full of lawyers who all supposedly learned this in law school. But, it’s a case of the price of admission to Congress being partial amnesia or full lobotomy, depending on the Congress critter.
Alito, Scalia, Thomas, Kennedy and Roberts just make stuff up when they take a notion. Citizens United is an example of made up stuff. We’re stuck until they unmake up this particular piece of stuff. NancyO
You are talking about the entity concept. But an entity is not identical to a person. There is no cororate “personhood” in law, generally, so far as I know, only the entity.
What you are saying is correct only if you conflate entity with person.
I think Hartmann has it right.
There are other flaws in the Citizens United decision: it is based on no legal precident, and it is extreme over-reach.
I don’t think your 4th and 14 ammendment examples require personhood, either, in any sense. A corporation is property, and the property of people (shareholders) is protected against search and siezure, etc.
Re: your second point – isn’t that a debate that goes back to Marbury vs Madison? Hartmann is consistent on this point, not just in the context of Citizens United. If it’s dangerous, it’s dangerous, irrespective of any specific case.
Cheers!
JzB
Nancy, you…
are right. But it is part of the folk religion of the Newnited States of America that we can’t say this outloud. All the Supremes have sworn to Congress that they will not make law, only follow it. This is nonsense, but not dangerous unless the future Justice actually believes it himself. In that case it is insanity of Inquisitional proportions.
Rather than weasel around with the logic as professional legal authorities have to pretend to do, I would suggest a better way of looking at it. some past Justice found that the right to free speech does not extend to the right to shout “Fire!” in a crowded theater. I think at the time he was finding that anti war speeches were not protected under the first amendment. It doesn’t seem to me even as much of a stretch as that to find that “corporate speech” to the point of funding political campaigns is too dangerous to democracy to be allowed.
This won’t solve anything. The corps can get heard without actually buying congressmen, but it might help preserve at least the illusion of honest government.
Meanwhile, corps are created by the government, and there would be nothing wrong with corporate charters being limited by the government to exclude paying for political campaigns.
Certainly the corps could argue that they are acting in the interests of their shareholders, and those shareholders who are horrified by this can always sell their shares. A better deal than those of us get who are horrified that the Congress and the President are acting on behalf of “us.”
As Marshall noted in Dartmouth, they’re created by their charter, and the government has no more power to restrict the activities of a corporation than the individuals that compose it.
Hmmm:
” In 1976 in Buckley v. Valeo, the Supreme Court said that spending money in election campaigns is core political speech under the First Amendment. Subsequently, in First National Bank Boston v. Bellotti, the Supreme Court said that corporations have a First Amendment right to freedom of speech. The question then becomes, does this mean that corporations have a First Amendment right to spend money in election campaigns? The Supreme Court so far, in prior cases, has upheld the ability of the government to limit corporate spending in election campaigns. In Austin v. Michigan Chamber of Commerce in 1990 the Court did this, in McConnell v. Federal Election Commission in 2002, and in upholding McCain-Feingold the Court did this.” Chemerinsky
I am not sure where in the constitution it says that corporations have the same rights as indiviuals beyong the core of individuals making up the corporation.
Tom Miller
your logic escapes me entirely.
if nothing else, the government is sovereign and can do just about whatever it damn pleases. we try to limit government by democracy and a constitution of checks and balances and a bill of rights that has been interpreted … ah… in various ways at various times.
and as i suggested letting a corporation… which is not a person, nor is it “many people” it is a huge power the government must regard as a dangerous rival if it hasn’t already been taken over by it, or them… letting a corporation buy congressmen is no more “protected speech” than letting a human citizen shout fire in a crowded theater.
your friendly southern neighbors thought they had a constitutional right to secede, and i would argue that as a matter of “law” they did. but as a matter of reality not once “the north” decided that they did not. for much the same reason, if government of the people by the people for the people is going to survive it will have to limit the power of corporations, even if that takes a reading of the law you don’t like.
i am not a lawyer, so someone else will have to clear up whether a corporation can create itself “by their charter” without permission of the government. i thought i had heard otherwise.
Nancy your law school professors may have been brilliant lawyers, I wouldn’t know, but their claims about King made law are not well founded in the English Law tradition that underlies Common Law as practiced in the U.S., England and many Commonwealth nations. This is particularly true I’m relation to the role of judges who whatever the claims of certain Kings (who mostly were deposed or forcibly constrained from enforcing their claims) did NOT claim to make law. Indeed under the rather odd legal regimin that ruled those judges into modern times, which was known as the Ancient Constitution, English Law was not just invariable but by definition perfect. Now the current state of law may have drifted from perfection, this just made it the duty of Judges and indeed Kings to PROCLAIM and RESTORE the Ancient Constitution. Now of course there were Statutes from early timesbut even these were normally in the for of restoration and clarification and reconciliation of current practices with entir pre-existing, and of course unwritten Ancient Constitution, itself at least as old as Kimg Alfred the Great.
Now looking back this whole structure is the most fictional of legal fictions but it was still theoretically operative at least as late as Blackstone’s Commentaries, themselves long regarded as being definitive.
Now you can find non-English examples that look more like King or Emperor made law, you have the Code Napolean and the much older Roman Code of Justinian, bit this is not characteristic of English Law. Indeed the first entry the English Statute Book, the Magna Carta extracted from Kimg John and CONFIRMED by his son Henry III, explicitly frames itself as a restoration of the Law as it existed under John’s Brother Richard the Lion-Hearted. Indeed under later convention the last year of Richard”s reign was officially the legal horizon. Which didn’t keep later historians and lawyers from appealing to Anglo-Saxon Witangemots and projecting Parliament back into remote antiquity.
Like most quick summaries this depiction is both superficial and incomplete, 1300 years of English legal history don’t reduce so neatly. But I can say that Blackstone would be shocked to the point of outrage at the claim that English Judges made law, whether as proxies for the Kimg or not.
Which is not to say that wasn’t the practical effect, it is just that legal innovation had to come clothed in antique armor. I’m fact my last paper in Grad School was called “Why Kill the Lawyers?” in relation to the Peasants Revolt of 1381. My argument wasthat a totally alien theory of landownership, one that totally benefited the then 1%, was imposed on England even as lawyers insisted it had always been that way. And judges went along.
Huh? Corporate Charters since the beginings of such things, which in the West can be traced to gifts of lands via charters to Monastic institutions and grants of tolls and rigts to have Market Fairs, have always been under cover of some authority, whether King, lord or body of statutes and generally had the form of contracts with responsibilities flowing both directions. I think you are confusing two originally quite different concepts: that of the Association and the Corporation with the latter almost always operating according to a Charter GRANTED by some authority. Now in medieval times many corporations and particularly religious ones, operated in a way that moderns would see as autonomous, which is not to say they were granted without conditions.
This is a nice peice of writing
Huh – I suppose this all might be more convincing if the anti-Citizen United folks could cite a Supreme Court ruling that benefited their political side, but they thought unsound. Otherwise it’s just the usual partisan noise. It might be more interesting to discuss the decision in reference to other decisions that established
though, is hardly a right that logically can be said to derive from those shareholders’ First Amendment speech rights, the exercise of which is cannot reasonably be said to be intentionally collective; the specific expenditure is not foreseeable to shareholders, many of whom would be horrified by it.
Should be considered with this:
Seven Supreme Court decisions have held that union dues exacted from dissenting
non-members may not to be used for political and ideological purposes and must be
expeditiously refunded to dissenting non-members according to proper procedural
safeguards…
Where actual union members, some of whom may be “horrified,” receive no such exemption. Of course Citizen United applies to unions as well as corporations. Are you equally offended by that aspect of it.
This post was posted prematurely, before I edited it. I wrote it late last night in response to an email from Dan linking to the Hartmann article. Tomorrow I’ll make a couple of editing changes. (I’m too tired to do it now.) One change will be a clarification that the reason that it matters here that the specific expenditure is not foreseeable to shareholders is that, by its very nature, the First Amendment free-speech right is a right of personal expression—the right to communicate an opinion, an idea, a fact (or claimed fact). So while it may not matter in other contexts that corporate officials take actions that were unforeseeable to shareholders, it very much does matter when the Court’s justification for its new rule of law is the First Amendment’s free-speech right that the corporation supposedly derives from its shareholders’ First Amendment free-speech rights.
In my last post about Citizens Unites, a week or so ago, I noted that the Court claims to rely not just on the speaker’s right to speak but also on the prospective listeners’ supposed right to hear what the corporation has to say. But as I intimated in that post, under standard First Amendment Supreme Court jurisprudence, prospective listeners are entitled to hear what speakers want to tell them. In the case of corporate political speech, or corporate political donations, it is the CEO, not the shareholders, who wants to communicate it.
Corporate personhood is a legal fiction that does conflate entity with person under certain circumstances. It pretends that corporate entities are persons, for particular purposes. For purposes of, say, property ownership, it doesn’t matter whether the law refers to corporations as corporate “persons” or instead just directly grants them, say, the right to own property. Laws originally did the former but now usually just cut out the semantics game and provide for corporations to own property, or whatever. But since only people have constitutional rights, the Court has to pretend that corporations are people if the basis, or a basis, for the ruling is the constitutional right of the corporation (in this case) to free speech. In this case, they said both that corporations have the First Amendment right of access to the media to buy political ads and that prospective listeners have their own First Amendment right to hear that corporate speech.
As for the issue of “judicial review” of the constitutionality of statutes, you’re right that this goes back to Marbury v. Madison, in which the Court ruled that the Supreme Court has the constitutional authority to review the constitutionality of laws. It would be extremely dangerous to remove that authority. Think of the recent law that authorized the president to indefinitely detain Americans, without a warrant or any semblance of due process. Or any number of other laws that clearly were unconstitutional and that the Court struck down.
Huh?? Corporations are creatures of state charter; therefore the government can’t restrict what rights they have?? What is this—the Frankenstein theory of corporate law? Don’t be ridiculous.
Citizens United is just an example of collectivism run amok.
collectivism??
T:
Here:
“In 1976 in Buckley v. Valeo, the Supreme Court said that spending money in election campaigns is core political speech under the First Amendment. Subsequently, in First National Bank Boston v. Bellotti, the Supreme Court said that corporations have a First Amendment right to freedom of speech. The question then becomes, does this mean that corporations have a First Amendment right to spend money in election campaigns? The Supreme Court so far, in prior cases, has upheld the ability of the government to limit corporate spending in election campaigns. In Austin v. Michigan Chamber of Commerce in 1990 the Court did this, in McConnell v. Federal Election Commission in 2002, and in upholding McCain-Feingold the Court did this.”
Beverly
i think your theory would fail… the corporation right to free speech in terms of paying for an advertisement would be subject to the same objections you pose for objecting to their right to fund campaigns ..
i think both “rights” pose problems for democracy, but you are not going to get them prohibited from paying for advertising.
i know the court, any court, will seize on any reason it can sell, but i think your (our) better bet is the fire in the crowded theater argument. it’s been used before.
i understand that i don’t know “the law.” so take this as free advice from a friend. it may help… or it may miss the point entirely.
Bruce
speaking as Nancy’s lawyer.. your scholarship is greatly appreciated and i wish you would tell us more, but i think Nancy’s law professors were talking about the “practical” operation of law, and not the theological conceit that the kings were only carrying out god’s law or the unwritten constitution.
i’d have added to nancy’s comment that the judges knew that they were making law… the same way the king was making law… but they were constrained by the need to make law that would suit the convenience of the king.
the U.S. Supreme Court is not quite so constrained.
I agree, cursed. And, of course, Bruce is right because he is talking about his particular specialty in English constitutional history and law.
Nevertheless, if there is only one King, and he says that his word is law because he upholds the Ancient Constitution, and he has all the guys in the steel suits with long swords on his side, you do what he tells you to do. Which, is what I and most students of government would call “the law.”
Thus, the law that condemns you to hang for heresy may well come from the Ancient Constitution. But the definition of heresy depended on who was the King and the King’s man brings you the bad news. Remember “cujus regio eijus religio?” In short, the law as it pertains to your heretical self is made by and imposed by the King and his men. Bruce observes “…[but this] is not to say that wasn’t the practical effect, it is just that legal innovation had to come clothed in antique armor.” Uh, huh. As I said, the Ancient Constitution was a fine thing and was whatever the King said it was. 😉 NancyO
T:
When Union members think their Union has acted in violation of the federal law ruling Union activities (5 USC 71, ff. as amended and as modified by federal court decisions) they can go to the National Labor Relations Board and file an unfair labor practices complaint. So, that’s the remedy. All you have to do is find a labor lawyer to take your case on spec. And, there you have it. NancyO
Beverley I don’t know if you are familiar with my favorite historian Frederic W. Maitland who along with writing almost all of what is known as Pollack and Maitland, ‘History of English Law: down to the reign of Edward II’ (Pollack even in his lifetime only claiming credit for most of the Anglo-Saxon Law chapter) also in 1901 wrote an article in The Law Quarterly Review (v. 17) called ‘The Corporation Sole’ often referred to as ‘The Crown as Corporation’. But the scope of the article goes far beyond that, and as Maitland was both a premier historian esp in regards to English land law and a brilliant and engaging writer (you can make legal history scholarly AND accessible AND witty? Who knew?) I would encourage you and everyone to read it. And it is readily available full text on-line.
Also it bears strongly on Nancy’s discussion of King made law. Because oddly enough in latter Medieval Europe the ‘King’ was often conceived by the lawyers as having two Bodies in one Person.
Anyway anything of Maitland is worth reading. For example his ‘Forms of Action At Common Law’ which by all rights should bore even legal historians to tears is a fascinating and informative read with ramifications far beyond the technical ins and outs of Possession, Ownership and Conveyancing
Shoot, long comment erased by an inadvertent Google search.
In the history of late medieval and early modern European history there were few Kings who successfully pressed claims of the Louis XIV ‘L’Etat, C’est Moi’ type. And those who were most successful often had their successor or successor but one being deposed or beheaded. That is James I of England was succeeded by the soon to be headless Charles I, and Louis XIV ultimately got his payback in the form of hapless headless Loius XVI and Marie Antoinette.
While the theory of Supremacy was certainly promulgated and even accepted in theory, it rarely lasted in practice and never more so in cases where Kings tried to claim monopolies over legislation and state use of force. Almost inevitably Lords and/or Parliaments struck back, in the next generation if necessary.
As to ‘cuius regio, eius religio’ this really didn’t become operative until the Post Reformation 16th and 17th century Wars of Religion and their aftermaths, and in many cases the ‘regio’ wasn’t a King and the ‘religio’ a public obligation as to observance and tithing.
Nor was heresy determined in the ‘regio’ ‘s court and certainly not in pre-Reformation times. The conventions of the time held that Clerics should not shed blood, meaning that actual executions were carried out by State actors, but mostly the Church held tight control over trials for heresy. Now witch burning in early Stuart times in Britain and America may have been an exception, certainly James I of England was a fanatic that way (it even leaked over in to the translation of what we know as the King Jame’s Version of the Bible)’ but it is a stretch to identify witchcraft with heresy per se.
So color me unconvinced that society at large thought of Law as King Made at any period or that Judges secretly or otherwise imagined themselves proxies in that process. Now you can find King’s who sought to place themselves out of the paradigm of law making with consent of the Lords or People (depending) and probably examples of judges who went along, but I would need some evidence based convincing before accepting this was the default.
Bruce
i wonder. there is practical and there is practical. sure the lords could get themselves motivated for a regime change. but i think it was to everyone’s advantage to pretend it was the king’s law, and the king’s law was god’s law. even the church found out the practical consequences of going against the king. Thomas a Becket being a famous example. and of course good king henry viii decided to make it perfectly clear who was boss.
again, i don’t challenge your scholarship. but the accumulated wisdom of hollywood movies teaches me that the king made the law, and the judges worked for and at the convenience of the king… and/or no doubt the nobles depending on the power realities of the time. which is what i think Nancy’s point was all about.
TStockman
i think you might not quite realize the extent that politics and law are all “just partisan noise.”
of course they are. and that’s why it is necessary to gather the political will to shape the law so that the corporations don’t arrive at a position of power from which it will be impossible to dislodge them for a thousand years.
i don’t see the unions posing that kind of threat at present or in the near future. if they were, i’d agree with you that we need to oppose them. but as it is, i think i’d worry a lot about a “law” that seeks to make corporations effective above the reach of “politics” while taking away from unions the right to collect dues and work for “political” causes that protect the workers… even the ones too dumb to know that’s what their dues are for.
i mean it must be hell to work for a union that got you a five day week, health care and retirement benefits, and a middle class wage, and have to shell out a few bucks a month for political action that Rush tells you is a communist conspiracy.
thanks Bruce. i’ll look for it. i had a brief brush with law school, and the theory they are peddling seems to me to agree with Nancy’s take.
the idea that it’s ALL rationalization to suit the Powers… king or whoever… is my own contribution to legal theory.
The theory of corporations was invented eight hundred years ago. The theory was first invented in church law, and then much later extended to business law. And it was invented for very practical reasons. The pope needed money. He would call a council and ask for money. The abbots would say they had to check with their monks first. After decades of this, a smart pope finally said you represent the monastery as a corporation, you represent all the monks taken together, not each of the individual monks. So you have the authority of an attorney to bind the entire monastery. In effect, when they elect you, they give you full powers, they give you a signed blank check.
And so was born representative democracy. Something neither the Greeks nor the Romans had ever thought of. (I don’t know where the bizarre idea came from that there were democracies in ancient Greece.)
The system worked very well for the next eight hundred years. It went wrong with the fragmentation of stock ownership from the late 19th century. With most mega corporation. the stockholders have no power over what the management does. It was one thing back in 1150 to ask 20 or 30 monks to give their abbot a signed blank check. It is another thing when there are millions of shares split between many thousands of owners. The top management rules, usually with a docile board of directors.
I would have no objection to Citizens United if we could come up a system that gives the stockholders a voice. Perhaps we could require that the CEO can’t spend money on politics without first taking a vote and winning the approval of a majority of the shareholders voting on the mater. With stocks owned by mutual funds, the mutual fund director cold poll the shareholders and ask them whether they want him to vote for or against allowing each of the corporation (in which the fund holds shares) to advertise.
I suspect most stockholders wouldn’t bother voting in most cases. However, if the top management acted in an outrageous manner, those harmed no doubt could persuade the stockholders to stop the management spending money on ads. The recent case involving Planned Parenthood proves that.
Of course corporation aren’t persons. But they were invented eight hundred yeas ago because they are absolutely needed to allow speedy decisions without first consulting the entire group. We have screwed up the system by allowing the CEO to make decisions without first consulting the stockholders.
Jan very interesting history but I believe the problem is not solved by consultations with stockholders on what politicians to support. The interests of a corporation often conflict with those of the owners (even if there is one owner) because owners as people have many interests beyond the corporation’s interests and these other interests more often than not outweigh the corporation’s interests.
Imagine you and I own a business and hire a CEO to run it. Suppose a certain political candidate, if properly supported and victorious, would arrange for government projects that will make the business more profitable. The candidate, however, takes social positions that violate every religious, moral, and ethical bone in your body (not mine!), and also plans to end government spending that is critical to another, huge investment of mine (not yours). The opposing candidate offers nothing for our business but is highly acceptable to us on the other issues. Which candidate should the CEO support with company funds? I say supporting ANY candidate is inappropriate.
Jan
be glad to learn more history from you. but your logic doesn’t convince me. if the need is for CEO’s to make speedy decisions, consulting the stockholders is going to defeat that.
If the stockholders don’t like what the CEO does, they are free to sell their stock. Don’t get me wrong, I think Citizens United is dangerous for the country, but the “logic” that the shareholders “don’t really have a voice” is not compelling.
Look
suppose your corp has a vote and 51% of shareholders want to bribe a congressman. What happens to the rights of the other 49%? American democracy at least is built on the idea of protecting the rights of the minority.
And not at all irrelevant at least in part the Civil War was based on the idea that the “governments” of the Southern states did not have the right to take their citizens out of the Union, and the 14th amendment confirms that idea… 90% of South Carolinians cannot decide to lynch the other 10%.
The corporation is a huge power, enough to rival the power of the government, a serious enough threat to democracy that it’s power must be limited by those checks and balances.
Then, suppose that Corp A whose shareholders vote unanimously to bribe a congressman. With the money and organization that a corp can bring to an election, their power is enormous enough to swamp the delicate balance of ordinary people voting and contributing to their favorite causes.
And suppose that Corp A with very few shareholders but lots more money than corp B with very many shareholders supports candidate X and B supports candidate Y, does the unanimous consent of the few shareholders overweigh in a democracy the unanimous consent of the many shareholders of the other corp? should it?
And the big one: the whole point of a democracy is to balance the power of “the rich” against the power of “the not rich, or the many.” This really is central. It is and always has been the whole point of democracy. It turns out you need both “the rich” and “the many” to run a decent country.
Once you decide that “money is speech” you have changed from democracy to oligarchy or plutocracy.
And those are the critical issues. Assuring that each stockholder has his say does not address those issues.
Neither, as far as I can see, does all the legal weaseling i have seen so far trying to prove that one reading of the law or another is “obviously” correct.
coberly: “If the stockholders don’t like what the CEO does, they are free to sell their stock.”
That gets things backwards, doesn’t it? They should be free to fire the CEO. The owners are responsible for policy. Selling one’s stock avoids that responsibility.
Min
they could fire the CEO if they held a majority of stock. if they are just minor shareholders and they don’t like corp policy, they can sell their stock.
it’s not me who has things backwards.
NancyO,
And the stockholders can sell there stock and leave the company – far easier than a union member who is forced to contribute his funds to a party that doesn’t represent his views.
And the obvious case of the Supreme Court making laws out of thin air was Roe v Wade. The Supremes have done so before and will in the future. If you don’t like citizens united just get congress to repeal it by passing a law specifically undoing the decision.
I see this as further erosion of the MSM (big 3 networks specifically) ability to be the gatekeepers of speech. The solution to speech you don’t like is more speech. Not bans on speech which the left is so fond of.
Islam will change
Min,
coberly has it exactly right. The stockholders are free to fire the executive sweep at any time on a whim. Or if the stockholders are a minority they are free to sell their stocks and leave.
It works really well…
Islam will change
buff
what’s wrong here is that you are defending the “right” of corporations to control elections with money, while you seem to think that the “right to privacy” is “thin air.”
i won’t argue the “words” because words are not what’s important.
but you have to give some thought to the consequences of living in a country where money has “too much” power. and living in a country where “the government” is excessively worried about what a woman does with her own body.
i may have missed a turn, but i think the msm are the speech organs of the corporations. what the current debate is about is “funding elections”… that is, buying a congress of your choosing.
oh… for your thinking pleasure: a corporation is an instrument for making money. a union is an association to protect workers. the union member who accepts the protection of the union has no more, and no less, right to “his dues” than you have a right to “your” taxes.
you couldn’t run a country where the citizens were allowed as individuals to refuse to pay taxes for the laws, and wars, they didn’t like, and you can’t run a union on the basis of having to get unanimous consent for every decision made by the elected leaders.
buff
thanks, but you and min should read the longer comment i made. i think it gets to the real heart of the problem.
Jan while Ithink you mean well nothing in the history of Western Monasticism supports your underlying thesis of a pre existing democratic monastery to which the abbot was responsible. The only time the ‘Brothers’ under the Benedictine Rule, which was the source of what we know as conventional Western Monasticism, had any kind of democratic voice was upon electing a new Abbot on death of the old Abbot. In between the Abbot (literally ‘Father’) had absolute authority over his Sons, the Monks or Brothers. Which is not to say that the Abbot had no Superior. In theory and the reality which they knew the actual ‘living’ owner of the monastic property was the Saint in whose name it was formed. And property charters and deeds reflected that. The monastic corporation was a device to allow a transitory group of monks along with their temporary absolute ruler the abbot to make decisions on behalf of what the ultimate fiduciary the Founder or Saint or in some cases the Founder Saint.
In this respect monasticism and church corporations are centuries older than the times when the Popes started exerting real authority over them in the way of taxation (which wasn’t taxation as we know it until late in our period.
Firing the CEO has first priority, selling the stock has last priority. That’s the right order. Other actions come between.
i suppose the union member who objects to his unions politics is as free to quit his job and work in a non union shop as is the shareholder free to sell his shares…
i think that once we get beyond the verbal noises we call “logic” and look hard at the realities we may want to find a way to protect both workers and democracy itself… without going too far and subjecting all property, and personal privacy, to the demands of “government” by which we mean “us” at best. and mostly something else a whole lot worse.
min
think. unless you have the money-majority you are not going to fire the CEO. i really did try to address this above. selling your stock also has real world bad problems.
i am trying to get people to realize the important problem is NOT “free speech” or in what sense a corporation is a legal “person.” or god help me the utterly foolish idea that you (or I) have a god given right that none of “your” money is ever used for a purpose you wouldn’t approve of if you hadn’t given it to someone else for other reasons.
min
your idea is dangerously close to endorsing the idea that money is speech. this is not only dangerous to democracy, it is dangerous to what an older person than i am might have called your soul.
you, and buff, both rest your “rights” on the idea that “i paid for it.”
I think what Bruce is describing is the case from around 1642 and onward. Alfred imposed law. William imposed law (to disenfranchise those who held land upon his arrival). With the emergence of parliamentary power, an “ancient constitution” was devised, but prior to that, law was much more in the hands of the king.
The point that Bruce raises about the origins of US legal theory is probably correct – the founding fathers never lived under a king like Alfred, or like Hammurabi – but that doesn’t make Nancy’s law lecturers wrong. The assertion of parliamentary perogatives was a huge change in the theory of government, the locus of power, and all that jazz. Things were different after parliament began to exercise greater authority.
Shareholders cannot sell their share ahead of a political act to which they object. It is too late for a remedy unless they have a remedy such as the one Nancy describes. Pretending that selling stocks after the fact represents a remedy seems very much like a pat “markets fix everything” sort of answer. A shareholders has already been made an unwilling participant in a polical act before knowing that the act has taken place. That’s whay an additional remedy is needed, so that the shareholder can raise hell about having his or her money used for political purposes of which he or she does not approve.
This, by the way, is an “agency” problem. Agency problems are pretty well studied, and it is pretty well understood that shrugging and taking what the stock market will give you after your “agent” has already buggered you in no way addresses the problem. The fact that it is political rights rather than cash doesn’t really change that.
Min’s point, as he made it, was perfectly correct. Coberly modified Min’s point by narrowing it from a general statement about stockholders to a case in which the objection comes from a minortiy. The point about minority views is fine by itself (though not all that relevant to Min’s point), but to then declare Min “wrong” because Coberly modified Min’s statement is, well, wrong. Really, the urge to make the other guy wrong in order to win a point is a bad, bad urge. Clear thinking lies in some other direction.
kharris
i think your objection is at least partly correct. but over the long run a corp that offends its shareholders more than their profits make it up to them may lose shareholders… some.
but in the meanwhile the “agency” problem you refer to is the same as the agency problem of a citizen in a democracy. if i don’t agree with my country’s policies i still have to pay taxes.
and, if you will forgive me, i think you are still subtly equating money with rights, and that is a danger of the same kind as treating corporate “speech” as a matter of “free speech.” there are realities that run deeper than the mere verbal formulas.
kharris
perhaps you would point us in the direction of clear thinking. i am suffering from the illusion that it is I who have penetrated the veil here.
the point about minority views was not “relevant” to Min’s point, it pointed out the error of Min’s point.
one of the errors.
“clarity” does not mean “agrees with me,” except of course in the eye of the beholder.
Not at all true as regards either Alfred or William.
Alfred explicitly COMPILED and RECONCILED laws drawn from three previous Saxon Law Codes and appended some specific codes drawn ultimately from Mosaic Law. Now there is a sense where this kind do codification is to “impose” law, but that is far from saying that the laws were made by the King. Restoration doesnot equate to invention, at least not according to the framing at the time.
Same with William the Conqueror. At all points he maintained he was the lawful heir of Edward and that he was only restoring the Laws of the Confessor. Indeed, quite apart from this applying to the law codes, it is pretty explicit in the structure of Domesday Book which constantly contrasts current practice to “T.R.E.” or ‘tempus Regis Edwardi’? The idea that William simply claimed all lands by right of Conquest and simply redistributed them to his Norman Vassals was in the cold light of the historical evidence an invention of later, systemizing Medieval lawyers. And truth be told once you get beyond the Anglo-Saxon nationalist bias of early historians William had a damn good case, one spelled out in the Bayeaux Tapestry (the initial portion of which makes up the banner of my moribund but still existing BruceWeb.blogspot.com). Indeed as late as the compilation of Domesdayin 1086, 20 years after the Comquest, lands were still in the hands of those Saxon land holders who had not participated in the series of revolts against William. Which under English law then and later formally led to forfeiture of lands and goods to the King. Now as history turned out there were relatively few Saxon or even Norman Lords who hadn’t participated in revolts and so had their lands forfeited and subsequently regranted on feudal tenures, to the point that most of Englsh land holdings ultimately did originate in such grants, but you will search in vain for contemporaneous claims by the Conqueror of what was in later centuries ascribed to “right of conquest”
By the way I came to Early English law via the near contemporaneous Welsh Laws of Hywel Dda (Howell the Great) plus some study of even older Irish Law Tracts. Bit whether you examine Irish, Welsh, or English sources before AD 1000 you will find the commonality of an existing body of law being confirmed with at most innovation limited to accommodation of Christian institutions and personnel into a code that was in origen pagan. Now there were attempts to regularized monetary penalties for various crimes against various classes but what you don’t find is some creation of a new criminal or civil code. Instead the adjustments were in the nature of smoothing and reconciling earlier codes.
In any event the Ancient Constitution as a CONCEPT, if perhaps not as a label for predates the English Civil Wars of the 17th century.