What Is The Basis For Corporate Personhood?

Melissa Block interviews John Witt, professor of law and history at Yale Law School, about the history of corporate rights as people. He says the case of Santa Clara v. Southern Pacific helped define the personhood of corporations in terms of the Fourteenth Amendment.

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MELISSA BLOCK, HOST:

Among the demands of Occupy Wall Street protesters is this: an end to corporate personhood. That demand has been spelled out on protesters' signs, like one that reads, "I'll believe corporations are people when Texas executes one."

Corporate personhood has underpinnings in legal doctrine. And to find out more about that, we've turned to Professor John Witt, who teaches law and history at Yale Law School. Professor Witt, welcome to the program.

JOHN WITT: Thanks so much for having me.

BLOCK: And when we talk about corporate personhood or corporate personality in the law, what do we mean? How are corporations treated as people or persons?

WITT: Well, the law has treated corporations as what some lawyers call metaphysical persons. That is, they're persons for some purposes, and they're not persons for others.

BLOCK: What sorts of purposes, then, would apply here?

WITT: Well, for example, a corporation can be prosecuted for a crime, which is something that usually only persons can be prosecuted for. But on the other hand, corporations get rights. They get rights to contract. They can't marry or run for office or vote, but they can speak - things like that.

BLOCK: The legal doctrine, as I understand it, goes back to a Supreme Court case from the late 19th century, Santa Clara County v. Southern Pacific Railroad. What was that case about, essentially?

WITT: So this is a case where the Occupy Wall Street protesters have distorted the details, but they really have it right in spirit. That was a case in which the Southern Pacific Railroad was protesting taxes that had been placed on it by California and by counties in California. And in that case, the chief justice of the United States Supreme Court, Morrison Waite, stood up in January of 1886 and said what pretty much everybody in the courthouse thought, which was that corporations were persons for the purposes of the 14th Amendment.

BLOCK: The 14th Amendment dating from right after the Civil War; the Equal Protection Clause is what we're talking about.

WITT: Yeah, the Equal Protection Clause applies to all persons. It provides that all persons have a right to equal protection under the laws. And that question wasn't controversial at the time. What mattered, really, was what happened later.

BLOCK: Meaning what, exactly?

WITT: What the court started to do around the turn of the 20th century and into the 20th century was to begin to force legislatures at the state level and the federal Congress to treat metaphysical persons - that is to say, corporations - the same as natural persons for purposes of contracting and rights to property.

BLOCK: And more recently in this century, we do see the term corporate personhood also applied to the landmark Citizens United case - the Supreme Court lifting restrictions on corporate spending for political campaigns. Was that case also argued on these same grounds of corporate personhood?

WITT: Well, for the Citizens United case, corporate personhood wasn't required for purposes of the majority's decision to strike down the regulations on campaign spending. Corporate personhood was invoked by the four dissenters in Citizens United. What the dissenters said was that the differences - which are very real, of course - between natural persons and metaphysical persons, or corporations, might be a good reason to distinguish between natural persons and corporations for purposes of regulating speech.

BLOCK: Well, Professor Witt, I wonder what you think when protesters and Occupy Wall Street talk about ending corporate personhood. What would that mean from a legal point of view?

WITT: I don't think we'd want to end corporate personhood in the sense that ordinary people - including people in the Occupy Wall Street movement - may want to get together and form groups, which should have respect of the legal process. What we might want to do - and this is what the Occupy Wall Street folks have right - is recognize the different characteristic features of large groups invested with powerful amounts of capital in our political process.

What Waite was attentive to in 1886, in the Santa Clara County case, was that corporations didn't have to be treated the same as natural persons. They were metaphysical persons. And that fact was something that the law could take into account.

BLOCK: I've been talking with Professor John Witt. He teaches law and history at Yale Law School. Professor Witt, thanks so much.

WITT: Thank you.

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