December 23, 2013

Of Persons, Legally Speaking

I've written before about the Supreme Court's Citizens United decision and about how I generally think the Court got it right.  Now, I concede there are legitimate arguments that they didn't and I'm open to the argument that decision had a negative effect on the last election, but that's not really a concern of the First Amendment.  But my biggest pet peeve when I hear people (on the left, mostly) complain about Citizens United is when they insist the Court made some sort of sweeping, never before contemplated, holding about corporations being "people" in some sort of legal sense.

I bring this up because the idea of what constitutes a "person" legally has raised its head in a couple of cases the Court has accepted for review dealing with the Affordable Care Act's contraceptive coverage mandate.  There's some argument that because the Court found a corporation's First Amendment right to free speech was violated in Citizen's United, it will do the same with a corporation's putative Free Exercise rights.  But that's not quite the right question to ask.

Eric Posner dives into this a little bit, bringing in another recent legal case championed by the political left - an attempt to use New York's habeas corpus statute on behalf of chimpanzees being held in captivity.  He makes a couple of important observations.

First, he explains how the concept of non-humans being legal "persons" is not only not a new thing, but essential to the workings of the law:
The law also treats various nonhuman, nonsentient entities as 'persons' for certain legal purposes. Corporations, estates, trusts, partnerships, and government entities are often defined this way. Walmart, Illinois, and the California Pension Fund can sue, for example, without anyone asking if they have a right to abortion. Sometimes, corporations can bring suit (or be sued) because a statute explicitly gives 'persons' that right, and defines 'persons' to include corporations. At other times, the statute does not define 'persons,' but courts interpret the word to include corporations because they believe that is what Congress intended. This transubstantiation of corporations into persons advances some pretty uncontroversial policy goals. If corporations lacked personhood, you couldn’t sue FedEx for crashing a van into your car, or Walmart for selling you a defective space heater that burns down your home, or J.P. Morgan for defrauding you when you get a lemon mortgage. You wouldn’t be able to enter into contracts with a corporation at all. Legislatures and courts have been treating corporations like persons for hundreds of years: There is even a general interpretive rule in the law that when Congress says 'persons,' it means corporations as well, unless the context of the statute provides otherwise.
In other words, we want corporations to be persons sometimes because, if not, they'd exist wholly outside the law.

The other point he makes, which I think is important, is that in cases like the ACA one or the chimp habeas one, the ultimate issue is whether the particular statute it issue was meant to include itself in that group of applications where corporations are persons.

Hobby Lobby’s opponents do not argue that RFRA doesn’t apply to corporations—they can’t, because it is undisputed that the statute applies to nonprofit corporations like the Catholic Church. The argument instead is that Congress did not intend RFRA to apply to for-profit, commercial corporations. Whoever is right, the answer turns on what Congress intended, not the metaphysics of personal identity.
This, I think, is a particularly important part when it comes to any big deal Supreme Court case.  In the media those tend to get boiled down into one or two grand issues, great questions of metaphysics and politics that capture popular attention.  In actuality, it's almost always more technical than that, wrapped up in procedural oddities that make it impossible for the Court to really take such questions on directly.

So, when Mitt Romney famously (and politically tone deafly) said, "corporations are people, my friend," he was neither completely wrong nor right.  Sometimes they are, sometimes they aren't.  And it's been that way for a long long time.

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