Because the ontological differences between human beings and corporations are so significant, it is uncomfortable to place business organizations, labor unions, and other non- human entities in the same category with human beings under the classification of “person.” Likewise, I am not necessarily comfortable with the concept of “corporate personhood,” and it might be productive to do away with the word “person” in reference to the corporation. We need
a new vocabulary to account for business organizations along with a new or revised set of laws capable of appropriately regulating the unique attributes that constitute the corporate form. This approach to the corporation should begin with the basic premise that corporations are primarily business organizations designed to achieve a profit. That fundamental premise should be the lens through which we view, talk about, and regulate the corporation. The “corporation as a business organization” should be more salient – legally, socially, economically, and culturally – than “the corporation as a person.” Conceptual, and especially legal, space between the idea of “person” and “corporation” should be encouraged until someday the gulf is so wide that the thought of their ontological conflation seems ridiculous.
Creating conceptual distance between people and corporations is admittedly more difficult than it might initially seem. This is because although corporations are not people, ontologically speaking, they are comprised of human beings who perform various individual job functions that allow the corporation to function as a single entity, as a person does. Nevertheless, corporations are not people in the traditional sense of the word. No matter how many rights intended for natural persons that the corporation is given, the corporation will never be a real person in the same way that a human being is. The corporation will always be just a cover for the body of men as Chief Justice Marshall stated in the Dartmouth ruling so long ago.462
If doing away with the concept of corporate personhood altogether is impossible or too distant of a possibility, other options should continue to be explored. In the Dartmouth ruling, for example, corporate personhood rights existed, but they were stringently regulated by the state, and the scope of appropriate corporate activity was more clearly defined. Now granted,
Santa Clara occurred precisely because corporate owners and lawyers found Dartmouth far too
462
restrictive. But perhaps there is a yet-to-be-explored middle-ground between the strictures of
Dartmouth and the sweeping freedoms of Santa Clara that could help to achieve a more appropriate balance of power between humans and corporations. Perhaps there are ways to improve the way we legally define and regulate corporate personhood. Limiting the scope of corporate personhood might provide one way to limit the scope of corporate power.
Limiting the scope and rights of corporate personhood is important because corporate personhood is the foundation of the trinity. Corporate personhood was the catalyst for the
unfurling of corporate rights that functioned to transform the business organization into the most powerful of all persons. The corporate voice and speech rights function to augment the power of personhood. However, if they were limited, then the power associated with corporate personhood would also be limited.
Although some corporate leaders tend to resist limitations and regulations, I propose that the constraints could be rather reasonable. For example, we do not have to do away with the corporate voice, but is there anything wrong with requiring its communications to be true or at the very least not intentionally misleading? Similarly, we do not have to do away with corporate free speech rights, or perhaps more appropriately put, we do not have to eliminate the
corporation’s ability to disseminate its views to the public. But it seems reasonable to regulate the speech of corporations substantially differently than the speech of human beings, i.e., American citizens. Corporations often have important information to share that the public can use in its decision-making processes. As business organizations, however, do corporations really need First Amendment rights to corporate political expression giving them the ability to directly play an influential role in democratic electoral processes? And if leaders of a corporation are able
to express themselves politically as individual citizens, then why is it also necessary for their corporation, as a separate legal entity, to have its own political voice?
Addressing each of the components of the trinity of corporate power and defining reasonable constraints will provide a path toward limiting not only that particular aspect of corporate power, but also corporate power more broadly. In the same way that a correlation may exist between the expansion of corporate rights and the constraint of human agency, I believe there is likely a correlation between limiting corporate power and enabling human agency in ways that enhance the human experience. In my view, it comes down to achieving an appropriate level of balance in society.