[Volokh] Eugene Volokh: Corporations, Personhood, Metaphors, and Legal Fictions:

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Posted by Eugene Volokh:
Corporations, Personhood, Metaphors, and Legal Fictions:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253648474


   One follow-up thought about corporations and constitutional rights; I
   [1]argue that corporations should generally possess free speech rights
   and various other constitutional rights, but not because corporations
   are "persons" and therefore should have the right that persons have.
   The corporation-as-person is a valuable legal fiction, and it's built
   on the same sort of metaphor we often use with regard to groups (e.g.,
   "the Catholic Church teaches," "the ACLU argues," and the like). But
   we shouldn't fall into the trap of actually [2]believing that our
   legal fictions and our metaphors are real.

   Thus, I argue that corporations should generally have First Amendment
   rights, Takings Clause rights, and the like because those protections
   protect the rights of individuals. If you take a corporation's
   property without compensation, you're taking its owners' property. If
   you ban corporations from speaking about the corporate income tax,
   you're interfering with the rights of corporate owners and managers to
   speak through the group -- just as a ban on partnerships', nonprofit
   ideological associations', and churches' speech interferes with the
   rights of people who speak through those groups.

   But it doesn't follow that the Cruel and Unusual Punishment Clause has
   any meaning as to corporations, which I don't think can be punished in
   a way that we would see as "cruel" (unless someone persuades me that
   the Unusual Punishments component has some meaning as to
   corporations). Neither does it follow that the Self-Incrimination
   Clause has any direct meaning as to corporations, which can't actually
   be witnesses. Likewise, it doesn't follow that we should have the same
   heightened constitutional protections for actions aimed at dissolving
   corporations as we do in death penalty cases, on the grounds that the
   action is a "death penalty" to the corporation; that too would be
   excessive reliance on a metaphor that isn't helpful here (corporate
   dissolution as actual death). Similarly, restrictions on corporate
   ownership of firearms should be constitutional or not depending on
   your views about whether the individual right to bear arms includes
   the right to associate with others in certain ways to do so -- they
   shouldn't turn on the neat but unsound syllogism that a corporation is
   a person, persons have the right to bear arms, and corporations
   therefore have the right to bear arms.

References

   1. http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253637850
   2. http://www.volokh.com/posts/1169074858.shtml