Why Personhood Matters

Abstract

One of the most controversial aspects of Citizens United is the Court's treatment of corporate personhood. Many members of the public feel that the Court held that corporations are "just like people" and they feel this wrong. Yet many scholars argue that the concern for corporate personhood is misplaced. This article argues that corporate personhood is indeed an important part of the rhetorical strategy to suggest that making distinctions between corporations and persons, or between different types of corporations, is discriminatory and ought to be forbidden on that ground. Moreover, this rhetorical strategy allows the Court to elide more substantive justifications for the extension of fundamental rights to ordinary business corporations. The justifications that have been offered -- corporate rights are merely a "pass through" to recognize the rights of the people who make up the corporation or corporate speech is protected for its value to the public -- are demonstrably inadequate. I argue that focusing on personhood suggests that not all corporations are equally good candidates to receive fundamental rights protection and because words have a powerful influence on our thinking, the personhood metaphor lends superficial credence to the notion that distinctions between types of corporate speakers is somehow invidious or that distinctions between commercial and non-commercial speech are discriminatory. Because this argument casts a constitutional shadow on a great deal of our regulatory law it seems worth exposing its weak foundation.

Keywords: First Amendment, corporations, corporate personhood, Hobby Lobby, Citizens United