I. The Failures of The Constitution and American Democracy: A Brief Synopsis
Although venerated on an almost universal basis by most political factions, the Constitution has failed to protect society from a number of evils. A hard, unflinching look at American life and what this document has deemed permissible proves this seemingly shocking assertion to be true. Such a harsh, even unspeakable assessment rings unquestionably true—despite a propensity to fetishize the Constitution not merely as the supreme law of the United States, but also as an appeal to moral or even ideological authority. While the Supreme Court of the United States has granted the Trump Administration’s certiorari petition on the matter of birthright citizenship derived from the birthright Citizenship Clause in the 14th Amendment, it is very doubtful that either Justice Roberts or Amy Coney Barrett will side with the four core conservative justices on this matter. Presidents have flouted the congressional power to declare war for at least a century, rendering this nation much less a republic and more like a thinly veiled empire. The gravity of such abuse of war powers has now perhaps reached new urgency with the sudden war against Iran, unleashed by Donald Trump without a declaration of war approved by Congress. Nor does the Constitution seem to have a built-in remedy for judicial activism writ large, particularly in a balkanized, fractured country in which achieving a super majority to impeach a judge (or pass a Constitutional Amendment) is impossible.
The Constitution, or how it has been interpreted, has also given way to a new sort of Lochnerism in regards to the First Amendment. Through a wildly expansive interpretation of The First Amendment as well as various legal doctrines such as vagueness and the so-called chilling effect, the Supreme Court has rendered the exemption of obscenity from First Amendment protection all but a dead letter. As a result, the Constitution and jurisprudence that interprets it have failed to protect the American public from the pernicious vice of pornography. Permissiveness and subsequent normalization and even ubiquity of pornography is just one instance among countless harmful effects of the supposed “liberties” granted by the Constitution. Many of the most obviously harmful effects are tied to corporate interests. Indeed, large media conglomerates and international corporations are free to wield seemingly limitless wealth and influence to finance advertising campaigns in the hundreds of millions if not billions of dollars, almost invariably at the cost of the greater good, usually while externalizing the costs of the harms they impose on society and the individual. These and other flaws condemn the Constitution and this form of government as utterly unfit for the purpose of fulfilling the basic social contract that exists between government on one hand and the individual and society on the other. There are other flaws, including interpretations of the First Amendment and other provisions of the Constitution that allow corporations to have free rein to do as they will in respect to commercial advertising, campaign finance contributions, and many other overtly commercial acts under the color of expressive activity.
Most still harbor an intense emotional attachment to the Constitution or insist it is still redeemable, while others lament there is no realistic path to jettisoning both the Constitution and not only this government but this form of government: a democratic republic that grants universal suffrage on citizenship alone, irrespective of merit, ideology, or aptitude. As unlikely as such reforms would be in this political and legal environment, one method to ameliorate some of the many problems and failings of the Constitution would be to abolish the absurd fiction that corporations are people—or, stated more precisely, the carte blanche extension of almost all constitutional rights to corporate entities. As will be demonstrated, the complaint that corporations are wrongly viewed as a person is somewhat simplistic and in some ways a mischaracterization of cases like Citizens United v. FEC. Stated more precisely, the absurd notion that various constitutional and so-called human rights that apply to people should not extend to corporations, some property rights excepted. As Law Professor Adam Winkler explains in We The Corporations, the controversial decision in Citizens United granted corporations the “First Amendment right” to unlimited campaign finance contributions not by the “corporations are people” fallacy, but by piercing the corporate veil for the benefit of its shareholders, a general trend in modern jurisprudence:
While the Supreme Court has on occasion said that corporations are people, the justices have more often relied upon a very different conception of the corporation, one that views it as an association capable of asserting the rights of its members.
Indeed, largely because of this shift away from discerning the fiction of corporate personhood and looking towards the shareholders behind the corporate veil, Winkler, Pollman, and others argue that retaining corporate personhood is a better strategy to rein in and curtail corporate power. As will be demonstrated, this too is short-sighted, because corporations are not persons, but are merely analogous to persons. A corporate “person,” rather than a corporate entity merely analogous to a person, would still enjoy most constitutional rights. Regardless of how one characterizes this phenomenon, the prospect of abolishing this absurd fiction and the extension of most constitutional rights to corporations is accordingly the focus of this essay.[
II. A Brief History of the Corporation and Corporate Charter
An examination of this absurd, preposterous legal fiction requires a brief summary of the legal history of how this became a seemingly intractable legal precedent, from which there is not even the slightest hint of relief in sight. In American legal history, legal precedent discerning corporations as “persons” originates from a 19th Century case Santa Clara County v. Southern Pacific Railroad Company. Notably, the ruling does not hold corporations to be people. Unfortunately, a misleading and even fraudulent headnote inserted by court reporter J.C. Bancroft Davis stated that the justices agreed corporations qualify as “persons” entitled to 14th Amendment protections. Although not binding precedent, subsequent opinions turned to this headnote to then fabricate this legal precedent by judicial fiat. Beginning with Minneapolis & St. Louis Railway Company v. Beckwith, a misleading and false headnote was transformed into binding, Supreme Court precedent. Although eventually moving away from the absurdity that “corporations are people,” this trend culminated in the wildly unpopular and controversial Citizens United decision which struck down a law limiting campaign contributions from corporate donors. Citizens United is the unfortunate and grotesque culmination of the history of corporate law and Supreme Court jurisprudence, which could succinctly be described as follows. “Corporate lawyers throughout American history” have mimicked the infamous gaffe of Mitt Romney, in which he incredulously insisted to one irate voter that “corporations are people,” and have convinced are courts to effectively do the same. As Winkler is keen to point out, however, there is some discrepancy between this popular outcry and the rationalization used in cases like Citizens United and Hobby Lobby:
Corporate personhood—the idea that a corporation is an entity with rights and obligations separate and distinct from the rights and obligations of its members—is entirely missing from the court’s opinion. The court afforded broad free speech rights to corporations, but not because they were people.
While the oft repeated hue and cry denouncing the absurd idea that “corporations are people” may be somewhat imprecise, it is nonetheless most troubling that the legal profession has “convinced the Supreme Court that ‘[a] corporation is a mere collection of men’ an “association of individuals,” and even, most preposterously, “a ‘democracy . . . [of] shareholders.’” Whether one describes the problem as seeing corporations as “people” or looking past the corporate form to favor its shareholders, corporate interests have persuaded our legal system “that corporations deserve legal rights because those rights ultimately protect the corporations’ real-life constituents.”
Many considerations discredit this legal fiction, and none better than the legal history of the corporate entity itself. The predecessor to the modern corporation was known as a corporate charter. These corporate charters were granted with the express condition that they act in service of the Crown and Country. Indeed, as law professor Elizabeth Pollman sets forth in “ ,” these “Early corporate charters” were defined by provisions for self-governance and purpose,” which “often” if not invariably served “public and private interests.” The corporate charter, the historical predecessor to modern incorporation, was in effect a license by the Crown establishing the conditional existence of a corporate entity as well as defining and limiting its legitimate, permissible corporate functions and activities. Prominent examples include the East India Trading Company in Great Britain, as the Dutch granted such corporate charters with a substantially similar structure as well. Indeed, as Law Nikolas Bowie reveals in “Corporate Personhood Vs. Corporate Statehood,” several of the original colonies were founded as corporate charters:
One of the most unappreciated facts of American history is that most of the colonies that declared independence in 1776 were founded by corporations. Trading corporations such as the Virginia Company of London recruited investors for the first Protestant explorers. The Massachusetts Bay Company and other colonial corporations crossed the Atlantic on the first colonists’ ships. When these corporations disembarked, they then served as the colonies’ first governments. Virginia, Massachusetts, Delaware, New York, Connecticut, Rhode Island, and Georgia all began their histories as colonies governed by, and sometimes for, corporations.
These and other examples are defined by how the corporate charter that established these entities serviced both private and public interests. Indeed, it is of note that in this early history of the corporate charter, “Ecclesiastical, educational, charitable, and municipal corporations were far more common than business corporations for most of corporate history” (Pollman).
While many Americans—particularly those of a left-wing populist bent—turn to the infamous Southern Pacific case for the origin of this absurd legal fiction, Winkler discusses its true origins in the collection of legal treatises titled Commentaries on the Laws of England by William Blackstone. Blackstone defined the corporation as an “artificial person” that enjoys legal rights. These rights were limited to so-called property rights, namely the right to hold property, the right to contract, and the right to participate in the legal process. Indeed, Blackstone identifies both a public and private component to the corporate charter that existed in his time, noting that a sitting monarch cannot grant a charter unless the corporate entity serves some public interest.
The reason Blackstone described the corporate entity as an “artificial person” is because only persons can hold property, contract, or participate in the legal system. This was not the only reason for this analogy, however. As Winkler explains, “Blackstone analogized the corporation to a person because the individual human being was the paradigmatic legal actor in the minds of lawyers.” But this does not make such entities a person, artificial or otherwise. Particularly in modern times in which science fiction can imagine entities like the T-800 cyborg from The Terminator or replicants from Blade Runner, the phrase “artificial person” is a poor descriptor for what corporate entities are in actuality. This is particularly so given the surprisingly poor choice of words in the assertion that a “corporation is an artificial person” (emphasis added). It is much more accurate to describe corporations and corporate entities as analogous to artificial persons. Few analogies bear close scrutiny, and this analogy is no exception, as will be demonstrated below. Perhaps this is why Chief Justice Marshall described the corporation in Dartmouth College v. Woodward as “an artificial being, invisible, intangible and existing only in contemplation of law:” artificial entity would have been even more accurate.
After the American Revolution and with the advent of the Industrial Revolution, the act of incorporation was granted by act of state legislature. Both the proliferation of corporate entities as well as a countermeasure against quid pro quo corruption (whereby legislatures grant incorporation for bribes and other favors) rendered such method of incorporation both infeasible and undesirable. As Pollman articulates, “The move from special chartering to general incorporation laws was at core a response to a political problem:” namely that state legislatures were manipulating the creation of valuable special privileges to corrupt the political process and economy.” Pollman elaborates further:
For years, corporate critics had raised concerns that corporations counted politicians among their shareholders and could use their connections and economic power to curry favors, block competitors, and entrench political parties. Over time, many citizens grew to see special chartering as a source of anti-democratic corruption Extending the same opportunity to incorporate on standard terms to all parties interested in obtaining a corporate charter solved the problem by eliminating the ability of politicians to distribute special privileges to the favored few.
Winkler elucidates that ending incorporation by legislative act was favored by Andrew Jackson, as a way to address powerful, moneyed interests essentially buying legislative favor and gaining incorporation through corrupt means. Because the “chartering process” was achieved through legislative act rather than a mere administrative one, “Jacksonians argued that wealth was determined by one’s political connections, not hard work and industry.” Conversely, by making general incorporation as an administrative act, theoretically available and open to all, “anyone,” in theory, at least, is free to “form certain types of corporations once a set of legally specified conditions were met, without the need for a special act of the legislature.”
In addition to public policy concerns for corruption, there was also a need to simplify the “process for creating corporations, which was burdensome on early state governments with limited administrative capacity.” These two concerns together led to the proliferation of incorporation statutes that rendered incorporation an administrative rather than legislative act. Through the power of these incorporation statutes, incorporation was presumptively granted by administrative act, provided an application for incorporation met all the criteria set forth in a particular state’s incorporation statute. As Pollmann expounds at length, corporate purpose clauses—which were formerly a defining limiting feature of the corporate charter and incorporation by legislative act—merely became a sort of meaningless recitation. Before the rise of incorporation statutes that rendered incorporation an administrative function, these corporate purpose clauses had been used to denote what conditions were stipulated in exchange for incorporation. It may be infeasible to audit each and every act of incorporation with close scrutiny of these corporate purpose clauses, but such corporate purpose clauses could theoretically be reinvigorated at an administrative level, if only the Supreme Court would cease and desist with the sort of Lochnerism defining Citizens United and other cases.
That the existence of any corporation ultimately derives from state power belies normie-tier, mainstream conservative talking points and other forms of apologism for naked corporate greed and power. Corporate entities, many of them malignant and subversive, do not simply exist the way a person is born into the world. The legal history of the corporation and more importantly its historical predecessor, the corporate charter, reveals that their very existence stems from state power: formerly from the Crown with very stringent conditions, then through legislative act, before that gave way to incorporation through administrative act. But throughout all these iterations of the corporate form in American and before that British history, the corporate form nonetheless stems from state power. As Pollman so astutely avers, “throughout history, the sovereign state has firmly held the reins on the legal statement of corporate purpose by determining it as a matter of special grant or by requiring its articulation in the constitutional document establishing the corporation.”
Accordingly, the corporate form is necessarily a legal fiction that is both created and recognized by the state. And state power can, as it did in the past, constrict corporate activities in the interest of the state (or the Crown) and the public welfare, absent of course conservative strains of judicial activism and overreach. This belies the free-market and libertarian cry that corporate entities should have carte blanche license to do as they will on any number of important topics of the day, from usurious, exploitative interest rates for persons with less than optimal credit, to exorbitant ATM fees that cost pennies to transact, to mass marketing and advertising and various other media products that are foolishly perceived as “speech” by the Supreme Court of the United States at the moment, to BlackRock and other equity buying single family homes in bulk, artificially driving up housing prices.
III. Count the Ways Corporations Are Not Like People at All.
A brief analysis of this legal fiction does not withstand scrutiny for many other reasons as well. Consider a brief summary listing and cataloging just some of the ways that corporations are unlike people.
Corporations Are Created Through State Power. Both the existence of the corporation and the countless number of corporate entities in existence are created and perpetuated through state power, currently an administrative act by the power of state incorporation statutes. This is a profound, fundamental difference from how individuals are born, live, and die, most particularly how the individual is created through insemination, impregnation, and carrying pregnancy to term.
Corporations Have Potential for Longevity Far in Excess of Any Living Human Being. A related difference stemming from how corporations are created and perpetuated is corporations have life-spans much different than human beings. Corporations can seemingly live on forever, or at the very least live well beyond the life span of humans, which rarely exceeds that of humans.
Fluctuating Life Spans by Various Corporate Acts Not Available to Persons. Corporations can also exist for much shorter periods of time, and these “life spans” can be also ended or curtailed in ways that simply do not apply to the human condition. Corporations can dissolve at will, merge with other entities, or be acquired by stock acquisition. In these and other instances, the corporate entity ceases to be one corporate form. Sometimes this leads to an entirely new corporate entity or “personality” through mergers or acquisitions. Other times one corporate entity will acquire majority stock in another and that acquired corporate entity becomes part of another.
People Are Not Beholden to any Fiduciary Duty to Persons Analogized to Shareholders. The prime directive of the corporation is what is in the best financial interest of the shareholders. Conversely, individuals will often do what is in the best financial interest of the individual or family, but not always. A man may choose to turn down a better paying job because of grueling hours or because he does not like that job. There is also nothing analogous to an individual’s life decision that would be analogous to a shareholder’s lawsuit for breach of fiduciary duty.
Corporations Wield Wealth and Power in Ways Very Few People Can. Corporations typically assert rights through litigation, lobbying, and other initiatives that often cost tens if not hundreds of millions, even billions of dollars. As Winkler persuasively argues, “Ronald McDonald and the Pillsbury Doughboy never marched on Washington or protested down Main Street with signs demanding equal rights for corporations.” To the contrary “[c]orporate rights were won in courts of law, by judicial rulings extending fundamental protections to business, even in the absence of any national consensus in favor of corporate rights.” This is done by retaining corporate law firms as counsel and concerted lobbying efforts—really legalized bribery denoted by thinly veiled euphemism—and other initiatives at cost of hundreds of millions and even billions of dollars. Very few people on the planet have the financial means to pursue their interests in such a manner. Just because Jeff Bezos, George and Soros are able to do as extraordinary outliers does not mean individuals can categorically.
The Legal Fiction That Corporations Are People Cannot Bear on All Points. While the Supreme Court and our judicial system have strained logic and credulity to push this legal fiction as far as possible, there are exceptions that belie this legal fiction for what it is. One example: while corporations are entitled to protection against unreasonable searches and seizures under the 5th Amendment, just as law enforcement must typically procure a warrant (certain exceptions granted), corporate entities do not enjoy a right against self-incrimination afforded actual persons.
Corporations Wield Personal Presence in Multiple Jurisdiction and Often Multiple Nations at Once. Corporations, unlike people, can maintain what would be analogous to primary residences in multiple states and even multiple nations. This is obfuscated by the legal fiction of incorporation under a state’s incorporation statute, but it is absurd to suggest that McDonald’s does not have residence in all 50 states, and sadly all across the world. Even the wealthiest cannot enjoy simultaneous presence in a multitude of jurisdictions. This legal fiction is of course enabled by separate corporate entities for different nations, e.g. McDonald’s Restaurants of Canada Limited, McDonald’s Restaurants Limited in the United Kingdom (GET OUT!), McDonald’s GmBH in Germany (GET OUT!), and so on.
Corporations Cannot Vote. While Hobby Lobby and Citizens United have extended freedom of religion and freedom of speech to corporations, corporations cannot vote.
Corporations Do Not Have a Single Mind. As Nace persuasively argues, a “corporation is a complex entity, not a unified mind.” Indeed, intrinsic fragmentation” of what might loosely be analogized as the mind of the corporation is a core feature of such an entity. Nace explains that “Those who occupy the key leadership position (the professional managers) are not always its owners. He expounds further:
those who are owners (the stockholders) are generally neither in charge nor legally liable; and those who are supposed to be exercising strategic direction on behalf of the owners (the board of directors) are rarely sufficiently informed nor sufficiently empowered to actually fulfill their theoretical function.
The corporate entity is thus defined by the “absence of any discernable mind or conscience.” Such a a void, utterly unrecognizable in human beings except the worst sociopaths, in turn renders “the theories of corporate rights that rely on the qualities of individuals meaningless.” Indeed, they are but a mockery.
These and other considerations reveal the proposition that corporations are people—or, piercing the corporate veil to see who is beyond the corporation to extend constitutional rights to these corporations—to be utterly preposterous, even if it is currently the law of the land due to dictate by the United States Supreme Court.
IV. On the Extension of Constitutional Rights to Corporations and the First Amendment Right to Multi-Billion Dollar Advertising Schemes and Other Pernicious Expressive Activity.
These and other differences implore the need to distinguish corporate entities from people, both as a practical matter and in any sensible legal system. Indeed, this fundamental distinction would, were it possible, reveal a way to redeem the Constitution to at least some appreciable degree while still addressing at least some of the evils that modern jurisprudence and the current form of government have allowed to proliferate in American society. This particularly pertains to how freedom of speech under the First Amendment has been extended to pornography, commercial advertising, and other marginally expressive activities that do not pertain to the “exposition of ideas” contemplated in Chaplinsky v New Hampshire. Such permissiveness runs the gamut, from the dead letter of obscenity law, to utterances that condone or excuse animal cruelty and gratuitous killing of animals, to a myriad of harmful and predatory business practices that are far more destructive when they exist on an economy of scale than by individual actors.
A number of considerations have persuaded this author that freedom of speech may not be such a universal good as high school civics class implores. If the populist right ever achieves and consolidates power to do so, a number of evils should be censored, provided such censorship is done judiciously and intelligently. Why, for example, should utterances condoning or excusing animal cruelty or gratuitous killing of animals ever be tolerated? Stevens v United States struck down laws prohibiting dog-fighting videos, and ostensibly would also strike down laws prohibiting photos or videos of cats or animals being tortured and killed, provided they do not contain the additional element of sexual-sadism that defines so-called crush videos. This admonition does not merely apply to videos and photos of such acts created and disseminated to satisfy sick sadistic urges, although such media should be especially subject to censorship and banning, achieved through the abject brutality of strongarm, jackboot, and other implements of state violence and terror as the implementation of such policy. This is especially apparent—and urgent—given the propensity for such materials to give persons a certain taste for such deplorable acts once exposed and desensitized to them. Consider further that even expressions that are otherwise “high value” forms of expression on such grim matters that contend with the exposition of ideas should not be tolerated either. This includes an otherwise coherent or lucid essay expounding on the professed advantages or attributes of gratuitous torture or killing of animals, to the extent such an essay or other work could ever be composed. Society should not tolerate zoosadists or cat haters in particular blathering about how and why they enjoy hurting and killing animals. As the right of race, blood, and soil is a first principle—a moral and ideological principle from which there can be no compromise—the same consideration applies to content that advocates for The Great Replacement, encourages race-mixing, and so on. While such contentions—particularly as they relate to positive depictions of inter-racial couples and families—are undoubtedly controversial and even unpopular to many readers, the discernment that intolerance simply stems from ideological and moral conviction dispels such civics class platitudes that have been inculcated in the masses for generations.
Somewhat less controversially, the same rationale applies to advertising and other commercial, corporate media that pushes race-mixing, hyper-promiscuity, and other undesirable behavior. Accordingly, a distinction between corporate commercial speech one hand versus speech and writing by individual persons advocating for multiracialism on the other hand could allow for a compromise between two seemingly incompatible, competing considerations: honoring and respecting robust free speech values versus addressing the promotion of miscegenation, multiracialism, and other undesirable things in a meaningful way on the other. The seemingly inexhaustible fusillade of emotive advertising and other media products that sell miscegenation have little to do with the “exposition of ideas” that is at the heart of First Amendment freedoms. As William Rehnquist notes in his dissent in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, no advertising material does. Advertising campaigns simply do not “relate to public decision-making as to political, social, and other public issues.” Rather, they pertain to such mundane and utterly commercial matters such as “the decision of a particular individual as to whether to purchase one or another kind of shampoo.” The questionable status of commercial “speech” currently protected by The First Amendment is particularly relevant to issues and concerns embraced by the populist, ethno-nationalist, reactionary-right. Few examples promoting race-mixing are tantamount to a cogent, lucid argument—an exposition of ideas—on why race-mixing is a net benefit, or why white European peoples should be bred out of existence vis-à-vis a slow-burn genocide and erasure through mongrelization. Even a more cerebral rebuttal to works such as “Against Miscegenation” which articulates reasons, contentions, and arguments on why race-mixing should not only be tolerated but celebrated and even encouraged should be censored on grounds of first principles. But to the extent such works actually contend with the exposition of ideas, they are fundamentally different than the unending advertising blitz of mixed-race couples and late Hollywood and Netflix schlock that constantly presents race-mixing with the subtlety and nuance of a jackhammer. They are also different because of the inherently corporate nature of such advertising campaigns and media product.
In addition to the propensity for corporate entities to promulgate harmful speech that perhaps should not be tolerated from either an individual or a corporate entity, other considerations demonstrate the necessity for this distinction. Just as the fiduciary duty binding corporate executives to maximize profits for shareholders compels corporate entities to litigate any number of matters beyond the scale possible for any individual, the same profit motive compels such corporate entities to engage in advertising on a similar scale that is similarly unthinkable for individuals, except perhaps a handful of powerful (and sinister) members of the billionaire class. Multi-billion-dollar advertising campaigns seldom relate to the exposition of ideas, but often resort to emotive, non sensical advertising tactics designed to sell product, often for very irrational reasons. Consider any number of typical advertising campaigns for bad American beer. Few if any ever expound on the particular advantages in taste and flavor or brewing method of Bud Light—how could they, when that beer is so objectively awful? Rather such advertisements typically associate a product with alluring, scantily clad women, or perhaps silly but somewhat amusing jokes about “The Real Men of Genius,” or the gimmick of a dog wearing sunglasses who is adored by hot bikini babes. The advertisements do not even argue, in any sensible, intelligent way, that drinking Bud Light or this-or-that Ami Spülwasser will increase the likelihood of its patrons being able to land women like that. Nor are they driven by the same considerations that lead an individual or group of individuals to endorse a product or service due to high satisfaction or favor. Rather, such advertising campaigns create an irrational, subconscious association in the viewer’s mind between Pisswater brand beer and hot bikini babes. Such advertising campaigns do not even amount to a “tale told by an idiot, signifying nothing,” because they can hardly be considered a tale at all. They certainly do not rise to the level of “the exposition of ideas” that was once—and correctly—envisaged as the threshold for First Amendment protection.
Moreover, and just as importantly, conflating corporate speech—particularly commercial speech—with “high value” speech most deserving of First Amendment protection overlooks a fundamental truth about “the structure of American society [that] limits the opportunity to communicate in the public arena to those with sufficient resources.” As Ted Nace further explains, “corporations use their financial resources to drown out other points of view.” This pertains to political agendas that maximize their bottom-line, but it also pertains to an extraordinary incentive to saturate daily life with commercial advertising to peddle their wares. The failure to constrain such corporate activity has created a society in which “corporations can dominate the airing of issues” and whereby we are all beholden “to the control of media by a limited number of large corporations. . ..”
As improbable as such reforms are under the Constitution, how it has been interpreted, and this particular form of government, advertising should not be protected under the First Amendment at all. Apart from the improbability of jettisoning both the Constitution and this form of government, many still regard free speech as a high social value, including endorsement of products and services in commerce. “Depersoning” corporate entities could provide an excellent means of compromise, whereby deluded individuals could still write essays or produce video essays and presentations on the supposed advantages of race-mixing and other evils, while still allowing for a means to address the hypnotic effect of mass media advertising and entertainment product. Such an “unpersoning” of the corporation would also render it easier to ameliorate other pernicious evils inflicted by corporate entities, such as private equity firms buying residential real estate and farmland at a wholesale level, as BlackRock and other insidious but powerful concerns have been doing.
V. Distinguishing Different Types of Corporate Forms Based on Purpose, Size, Wealth and Power
One issue central to this problem of corporate entities is that there is currently little distinction between corporate entities based on purpose (non-profit versus for profit) and size. Winkler notes a certain irony that a case involving the NAACP was used by for-profit corporations to gain the same constitutional rights. Whatever political disagreements readers may rightly have with the NAACP or its members, such not-for-profit organizations serve an entirely different purpose than General Motors or Coca-Cola or Con-Agra. This is illustrated by American Renaissance as a not-for-profit corporate entity. Both corporate and constitutional law should recognize such fundamental differences. It is an entirely different proposition for entities like American Renaissance, the NAACP or a consumer rights advocacy group to exercise first amendment rights than it is for some multinational corporation to purvey fast food slop that any minimal food regulatory authority would ban outright, or for Draft Kings or Fan Duel to buy blitz advertising campaign during sportsball broadcasts.
A similar distinction is to be made based on size of a corporate entity and its proximity to its owner, and whether it is closely held by an individual or family. Burwell v. Hobby Lobby Stores held that the Green family could not be compelled to pay for health insurance that covered abortion, as it would violate the religious rights of the Greens. But as Winkler points out, this effectively removes any distinction between the Green Family on one hand and Hobby Lobby as a corporate entity—an artificial “person”—on the other:
Instead of treating the corporation as an independent legal entity, with rights separate from those of its members—as the Taney court did in the mid-1800s—the Supreme Court once again collapsed the distinction. Hobby Lobby was the Greens, and the Greens were Hobby Lobby.
Many readers of this publication may sympathize with the Greens, either out of a concern for promoting natalist policies or out of simple religious conviction. But what if a corporation was closely held by a Jewish or Muslim family? Should Jewish owned corporations be allowed to not be open on Saturdays, even if they purvey essential victuals that should be made available for sale on Saturdays? What if a large but closely held corporation owned by a Jewish or Muslim entity refused to serve meals at the company cafeteria using poultry and beef that is not slaughtered according to Kosher or Halal law?
This problem becomes more salient in regards to Jack Phillips and his small business Masterpiece Bake Shop, L.L.C. and the ongoing saga by which state authorities in the Colorado state government and LGTBQ-Yuck activists continue to hound him. Both Jack Phillips and Masterpiece Bake Shop have been sued to try and compel both Phillips and his small business to make and offer for sale custom-made bake goods and confectionaries that celebrate gay marriage or so-called gender transition. This malicious body of litigation and various complaints to state anti-discrimination agencies of course involves a piercing of the corporate veil, but suppose these pernicious entities only sued Masterpiece Bake Shop as a corporate entity? Such a scenario reveals how small corporations like this are of an entirely different order and type than Hobby Lobby, and certainly different from large, multinational corporations that offer stock for sale on various stock exchanges to the masses. Compelling an entity like Masterpiece Bakeshop—and by extension Jack Phillips who works on the premises every day—is fundamentally different than compelling a national—indeed, international–chain like Paris Baguette to do so. A key, fundamental reform in both corporate and constitutional law must be to discern such obvious differences. Because the corporate form arises from state power, as has been shown, this could be achieved by creating new, novel corporate entities that are defined by these important distinctions.
It should of course be disclaimed that the actual problem with the Jack Phillips saga is that the laws in question are bad to begin with. Gay marriage is a pariah, although not for reasons stemming from religious conviction as many suppose, but for secular reasons, including the grave mistake of normalizing homosexuality and rendering it mainstream. This of course defines deviancy down. Neither individual, closely held corporation, nor multinational conglomerate should be compelled to bake a “gender transition” cake, or even a so-called gay wedding cake. To the contrary, consider the blithe assertion that such expressions should be banned for the same reason society should not allow someone to create a cake, t-shirt, or other product encouraging someone to commit suicide, or that a person running a pro suicide hotline as mimicked in Boyd Rice’s hilarious but dark “Hatesville Suicide” hotline should not be allowed in earnest. On the other hand, given that some persons are so wretched, so irredeemable, perhaps such a blanket proscription against advocating for suicide ideation for the worst among us goes too far. A far better example would be a hotline or other venture that encourages people to do illicit drugs, or commit violent crime, or any number of other unmitigated social ills.
The same considerations apply to all the civil rights legislation that arose from the so-called civil rights era, much of which abnegates several important constitutional rights, as they had been understood before this watershed moment. To the extent blacks are still citizens and a parting of the ways a la Liberia seems fantastical, at least for the foreseeable future, obliging national chains to serve the public regardless of race according to a common carrier rationale is a fundamentally different proposition than compelling small businesses closely held by an individual or family to take in guests or customers they do not want wish to do business with.
Finally, a legal system and method of incorporation that recognizes and discerns such important distinctions could address a specific problem bound up in the language of the First Amendment: the prohibition against government against that “abridge[s]. . . the freedom of the press. . ..” The press does of course refer to the body of journalists, writers, and others who write or speak on matters discerned as “high value speech,” that directly pertain to the “exposition of ideas” that was originally contemplated by The First Amendment, as articulated in Chaplinsky. However, most such persons are employed by newspapers, media concerns, and other outlets that are, quite obviously, corporate entities. Creating a special designation for such entities could recognize the First Amendment rights of these corporate entities, or more importantly the persons are employed by and make such corporate actors. Such legal reforms would of course need to also implement safeguards against the oligopoly of mass media that plagues modern society and that Oswald Mosley and others warned against. This combined with a common, everyday understanding of “speech” and “press”—which necessarily excludes the expenditure of funds, an utterly commercial action, would do much to solve many of the problems that modern American jurisprudence has afflicted society with.
VI. Looking Forward and Back: Some Final Considerations
Much of the debacle—the systemic failure—surrounding corporate rights invalidates and repudiates many assumptions bound up in American exceptionalism and the repeated assertion that our system works well. Just as the framers could never have envisioned the hypnotic power of modern mass media and social media, nor could they have imagined large, multinational corporations as they exist in the modern world. Stated bluntly, the framers “simply never considered whether the Constitution applied to corporations.” Indeed, Nace describes the intent of framers thusly:
The history of the East India Company, the Boston Tea Party, and the Constitutional Convention all reveal absolutely no desire on behalf of the framers of the American system to afford any rights whatsoever to corporations. Indeed, they indicate the opposite: a bias toward restraining corporations. Not only are such behemoths fundamentally different than the corporate charter that had existed at the time of the Revolution and before, but, as Winkler reveals, “the paucity of business corporations at the time” the Constitution was drafted and ratified “would give little cause to consider the matter.”
The framers however did have concerns about concentrations of wealth and power. Jefferson condemned “the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” Madison warned that “the indefinite accumulation of property” is “an evil which ought to be guarded against.” For that reason, “power of all corporations ought to be limited in this respect.” These and other concerns belie the absurd, simplistic naïveté of libertarian ideology which doggedly persists in its willful ignorance of basic concepts like leverage, market share, and the hypnotic power of mass media and sophisticated advertising campaigns. Crucially, these important concerns have been left completely unaddressed by the Constitution and this form of government.
The Constitution of course was drafted and ratified before the Industrial Revolution, to say nothing of the advent and proliferation of modern mass media. The federalist system endorsed by the Jeffersonian model was predicated on a “largely decentralized, agrarian society” that simply does not apply to modern society. With the advent of the Industrial Revolution, society—without strong federal power at the national power, was unable to contend with “the rise of huge, national corporations like the railroads and the trusts that were beyond the power of any one state to control.” Among many other considerations, this observation implores why strong, centralized power is necessary. And while many are rightly apprehensive and fearful of the Democrat party—or its comparable parties on the Continent—wielding such power, this simply implores the necessity of removing them from political power, forever, and jettisoning liberal democracy both as a form of government and as an ideology.
Such problems are further compounded by how there is simply no mechanism in either the Constitution, our legal system, or the legal professions that stewards this system of government and that has interpreted and defined the Constitution. Rehnquist’s dissent in Virgina Pharmacy was over 50 years ago. The legal and political saga surrounding Roe v. Wade and its eventual overturning in Dobbs v Jackson Women’s Health Center demonstrates how exceedingly difficult it is to overturn Supreme Court precedent, even for a legal decision with such poor legal reasoning as Roe. There is simply no method within the Constitution to claw back the supposed constitutional rights of large, multinational corporations to peddle their wares on modern mass media, from pharmaceutical products with unsettling side effects, to saturation of promotions of sports gambling products across televised sporting events, to commercials peddling reverse mortgage and other predatory ripoffs. There certainly is not a method within the system to redeem itself from the mad folly of The Civil Rights era or the multiracial experiment it has embraced as official government policy. Even though there is no practical method embedded within the Constitution that bears promise of ameliorating these and other critical failures and shortcomings, an understanding of the legal history of the corporation and its predecessor, the corporate charter, is fundamental to understanding how the Constitution and our legal system have failed. If those who regard the Constitution with the esteem and reverence it is typically afforded can somehow find a solution to these and other problems within the legal system and government in place, it would be the benediction of the ages. Nonetheless, these critical failures must eventually be addressed and ameliorated, one way or another.
PLEASE NOTE: A “Works Cited” page is available here.
Other articles and essays by Richard Parker are available at his publication, The Raven’s Call: A Reactionary Perspective, found at theravenscall.substack.com. Please consider subscribing on a free or paid basis, and to like and share as warranted. Readers can also find him on twitter, under the handle @astheravencalls.
For American readers what I am about to write about the mother country may sound unbelievable, but, incredibly, it is true. In 2024, a young signpost maker and father of one called Sam Melia was jailed for putting perfectly legal stickers on lamp posts.
