Originally adopted after the Civil War to protect the rights of formerly enslaved people, the 14th Amendment has exponentially expanded the protection of civil rights for all Americans over the past years. Constitution, and has been at the center of many of the most famous Supreme Court decisions, including school desegregation Brown v. Board of Education , abortion Roe v. Wade and same-sex marriage Obergefell v.
Under U. So, what is the 14th Amendment again? Ratified in , it was one of three amendments to the U. Constitution designed to grant full citizenship rights to formerly enslaved people. While the 13th and 15th Amendments were relatively limited in scope—the first abolished slavery and the second granted voting rights to black men—the 14th Amendment exponentially expanded the protection of civil rights for all Americans.
What is due process and how does it work? The fundamental principle of due process goes back to the Magna Carta , the 13th century English charter that inspired the framers of the U. Due process ensures that all levels of government operate within the law and provide fair procedures for everyone. The problem with Citizens United is not that corporations have a right to speak, but for whom they speak.
The solution is not to end corporate personhood but to require corporations to act more like citizens. Kent Greenfield is a law professor at Boston College, a former Supreme Court clerk, and an expert in constitutional and corporate law.
Greenfield offers thoughtful and often original views on topics ranging from the degree of First Amendment protection that corporations should receive to the nature of corporate behavior that shareholders and the broader public should come to expect.
Greenfield gets us past the discussion of whether corporations should be regarded as persons and focuses on how they should be treated under the law. The book is provocative, original, and engaging and sure to be essential reading in grappling with the role of corporations in our political system. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter.
Also of Interest More from this Author. The First Branch--Companion Readings. If granting legal recognition to corporations nurtured the spirit of association in Tocqueville's time, it is absolutely indispensable to fostering that same spirit today. One of the well-known benefits of modern incorporation law is the principle of limited liability. The owner of a non-incorporated entity can be held personally liable for the full extent of any damages done in the course of business. A limited-liability company, by contrast, enables owners to limit their exposure to lawsuit insofar as any recovery is limited to the corporation's assets, not the owner's personal assets.
In other words, an individual carpenter might lose his own personal assets if he harms a customer while working. A carpenter incorporated as a limited-liability company causing the same harm might lose his business assets, such as his tools or business truck, but he won't lose his home.
This protection might not have been essential in Tocqueville's time, but it certainly is in ours. It enables a host of innovative, risk-taking behaviors that grease the wheels of the American economy. In today's complex economy, incorporation is a necessary protection for any association that includes more than a few people and that seeks to operate on a considerable scale and for an indefinite period of time. Without it, very few people would be willing to take the legal risks, and America's spirit of association would wither.
The corporation also contributes something more positive to our capacity for association by actually stimulating the desires that lead people to create new institutions within civil society. The American founders understood that many people are drawn into public service by the desire to win recognition. Hamilton spoke of the "love of fame" as the "ruling passion of the noblest minds," and observed that it often leads men to "plan and undertake extensive and arduous enterprises for the public benefit.
A healthy society, then, must find some way to stimulate the ordinary man's more modest ambitions. The love of political fame may nurture great statesmen, but society also needs to foster the more limited yearning for recognition in the private but prominent citizen.
It is, after all, just such citizens who take the lead in forming the institutions of civil society. Their desire for recognition as public benefactors is the lifeblood of the spirit of association. The corporation is well suited to encourage these wholesome ambitions.
Incorporation creates the possibility that an institution can outlast its founding members and therefore holds out the promise of legacy, a kind of worldly immortality. The legal form of the corporation, by contrast, makes possible the prominence of ordinary private citizens.
This can happen on a relatively grand scale, as with Henry Ford or John Harvard; but it can also happen on a more modest scale, as when someone establishes a local business that lasts for generations, or when a local benefactor establishes a local library, museum, or hospital. And of course even those who do not found but merely work for or manage such corporations can feel that they are part of the history of an institution that is itself a part of the history of the larger community and the nation.
Giving legal recognition to corporations, then, is indispensable to a healthy democratic civil society because such recognition democratizes, in a sense, the love of fame and brings its satisfaction, on a limited scale, within the reach of the ordinary citizen. Would all the good work that has been done in America through corporations have been accomplished without them?
It is impossible to say. The left's rejection of corporate personhood in the wake of Hobby Lobby and Citizens United is unsurprising. Nothing else adequately explains the trivial arguments of politicians like Elizabeth Warren: "Corporations are not people.
People have hearts. They have kids. They get jobs. They get sick. They cry. They dance. They live. They love. And they die. Here, conservatism's sympathetic attention to tradition uncovers the sound reasons for creating and preserving corporate personhood. True, corporations are not natural persons, and so Warren is right that, in a very plain way, corporations do not flourish in the same way that individuals do.
Nevertheless, corporations are vital to making the flourishing of individuals possible. Human beings do not flourish in isolation, nor are they born as isolated individuals, as even Senator Warren points out. They are born into communities and develop their individual identities in that context. Their natural sociability demands that throughout their lives they continue to cooperate with others in enterprises of common advantage.
The corporate form facilitates cooperation by providing a stable and legal footing for that cooperation. People are led by their hearts and their love for each other to create charitable institutions. They are led by their desire for jobs to create businesses that provide employment for themselves and their fellow citizens. Legal recognition of corporate rights encourages those admirable strivings by offering the possibility that the organizations to which they give rise can be established on a solid legal foundation.
None of this is to say that there is no difference between natural and artificial persons. Corporations cannot have exactly the same rights as individuals, nor should they. Even as he explained the traditional view that a corporation is a kind of legal person, Hamilton acknowledged that certain kinds of legal rights cannot attach to such a person.
Laws of descent cannot apply to a corporation because it can have no heirs, just as laws of distribution cannot apply to it because it cannot die. Similarly, corporations as artificial persons are subject to certain legal duties, like paying taxes, and exempt from others, like conscription. The traditional view, then, provides the materials by which to make reasonable distinctions between natural and artificial persons and to justify reasonable regulations on corporations.
We must recognize that corporations are an inextricable part of American law and culture. They have contributed immensely to the development of our civil society, and it is impossible to mount a wholesale attack on their status and rights without also undermining the social goods to which corporations contribute.
Whatever abuses might be committed by individual corporations, the legal principle of corporate personhood should be defended against the left's irresponsible rhetoric. Carson Holloway is a visiting fellow in American political thought in the B. Forgot password? Are Corporations People? Previous Article.
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