In August 2011, Presidential candidate Mitt Romney visited the Iowa State Fair and was confronted by a heckler who called for an increase in taxes on corporations rather than on people. The candidate famously responded, “Corporations are people, my friend.”
A year before, the United States Supreme Court delivered an opinion in Citizens United v. Federal Election Commission. The decision prohibited the federal government from restricting political expenditures by corporations. Such restrictions, a majority of the Justices determined, would violate First Amendment principles, a ruling which implicitly recognized the personhood of corporate entities.
Last month (March 2014), the Supreme Court heard oral arguments on a pair of cases, based in part on Citizens United, in which for-profit companies seek exemption from the Affordable Care Act. The companies assert religious beliefs as a reason to deny their employees access to insurance coverage for contraception that is required by the health care law. The concept of a corporation as a person with legal entitlements is again central to the issue. A decision is expected before the Court’s summer recess.
Regardless of what one may think of the merits of any particular legal case, these developments illustrate that the assertion of corporate personhood has come to be accepted as a legitimate premise in political and legal discourse. We are now debating the nuances and boundaries of an established idea. What many forget is that the underlying notion that a corporation is a person that could possibly be entitled to free speech and religious entitlements would once have been viewed as radical and unorthodox.
What does corporate personhood have to do with conservation in Alaska?
In 1972, a law school professor named Christopher Stone wrote an article for a law journal. He argued that natural objects, including particular species of plants and animals, as well as whole ecosystems such as forests and oceans, should have legal standing to bring environmental lawsuits in their own name. The article, titled Should Trees have Standing?, has become a classic, republished many times since and enlarged into book form.
Legal standing for trees might seem like a radical idea, and it certainly was in 1972. Professor Stone even conceded that the concept had a “note of the unthinkable” about it. But he also observed that all extensions of legal rights, many of which seem perfectly reasonable and even inevitable in hindsight, are considered unthinkable until they find a voice and come to be accepted as part of the framework of our law.
One of the historical examples he cited for this idea was the evolution of the legal rights of corporate entities -- not just the incremental expansion of those rights as in Citizens United, but their very existence in the first place. “We have become so accustomed to the idea of a corporation having ‘its’ own rights,” he wrote, "and being a ‘person’ and ‘citizen’ for so many statutory and constitutional purposes, that we forget how jarring the notion was to early jurists.” Little could he have imagined back in 1972 that corporations would eventually be referred to as “people” by a Presidential candidate and be granted First Amendment protection by the Supreme Court.
Professor Stone wrote his article for the specific purpose of influencing an important case that was pending before the Supreme Court at the time. I have mentioned the case, Sierra Club v. Morton, in previous posts in this series. The narrow issue was whether the Sierra Club had legal standing, by virtue of its well-established credentials in the conservation community, to sue the Department of the Interior in order to block Walt Disney’s development of the Mineral King valley in California.
With his radical article, Professor Stone propounded an even more controversial principle than the Sierra Club was arguing: not just that the Sierra Club had standing, but further that the very trees, the landscape, of Mineral King should have legal rights and standing to pursue them. If they did, then organizations like the Sierra Club could act in a representative capacity to assert those rights on behalf of the natural objects.
Next post in the Whose Land? series: how the Mineral King case turned out and what its lasting impact has been.