Balkinization  

Sunday, January 29, 2012

More on Corporations as Slaves

JB

Following my previous post on why for-profit corporations cannot be persons for purposes of the Thirteenth Amendment, Sandy Levinson reminded me of another important fact. Not only can people buy and sell for-profit corporations like slaves, but they can also liquidate them. In the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life. On the other hand, people who were not owners (or in the position of an owner, as Mann was in the case) could be sued for injuring or killing a slave.

In the same way, the owners of a for-profit corporation can liquidate or dissolve the corporation whenever it is convenient (subject always, of course, to various the regulatory requirements of state corporate law). Like slavemasters, they have the power of life or death over their corporations. On the other hand, the owners can sue other people who attempt to injure the corporation, and of course, the owners can take various steps to avoid hostile takeovers.

All of which suggests an interesting perspective on the First Amendment rights of for-profit corporations. Traditionally, slaves in the antebellum South lacked independent rights of their own, although their masters had rights against third parties who harmed them. That is, in most cases, legal protection of slaves was actually the protection of the property rights of their masters. Ordinarily slaves would not have had free speech rights of any kind; indeed, they would have been incompetent to testify in court.

If for-profit corporations have free speech rights, it is not because corporations are persons. It is because it makes sense to give the people that control them (who are not necessarily their owners) the power to use the corporate form to amplify their voices. Conversely, to the extent that it makes sense to limit the speech of for-profit corporations, it is not because constitutional rights of corporations are violated; it is because the rights of the people who control the corporations should not extend so far.



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