On Corporate Personhood:

Daniel Henninger, over on WSJ.com, has some interesting observations on “the scrum inside the [Citizens United] decision between Justices Stevens and Scalia, over the status of corporations in America.” I think he’s on target in suggesting that the decision, and the debate swirling around the issues raised (both in the warring opinions and in the court of public opinion) do reveal a rather profound difference of opinion about the meaning, and status, of corporate persons.

“In the universe inhabited by Justice Stevens and President Obama, corporations—the private sector—are a suspect abstraction, ever tending toward “the worst urges” which have to be “comprehensively regulated.” The saints regulate the sinners. . . .”

On the other hand, in what Henninger calls Scalia’s “crack-back concurrence,” Scalia

. . . ridicules ‘the corporation-hating quotations the dissent has dredged up’ . . . and ends with a conservative belief: ‘To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.'”

It’s clearly (and of course Henninger is hardly the first to suggest it, as he candidly acknowledges) a substantial and possibly critical fault line in our politics and in our law. What are these things we call corporations? How should we think about them? Are they merely creatures created by the State (and subject to whatever conditions the State may wish to impose upon them)? Or are they simply reflections of the natural right (and propensity) of individuals to band together to accomplish some task? Or – horrors! — are they both simultaneously? What then?

I’ve written (somewhat tentatively) about this on the VC before, and I’m starting to think more and more about the question. In part, this is because my good friend and colleague David Johnson is (slowly) persuading me that the question of “corporate personhood” is of the deepest importance for understanding the issues surrounding something closer to the bulls-eye of my interest, viz. the health and future development of the Internet. His argument, very crudely put, is that what make the Net a fundamentally important development in the history of human communication are the possibilities it opens up for collaborative endeavors among large numbers of widely-scattered individuals — it’s ability to foster group-formation on an unprecedented scale. If that’s true — and I think it’s hard to argue that it doesn’t have some grain of truth in it — then the question “what rights and obligations do these newly-formed groups have?” becomes a central question for Internet law.