Corporate Persons and the Leviathan of the Contracepted

15 July 2022

Corporate Persons and the Leviathan of the Contracepted

Image Credit: Colin Boyle / Block Club Chicago

As the tenets and principles of corporate personhood gain traction in the rulings of a majority arch-conservative U.S. Supreme Court and in lower courts throughout the nation - exerting increasing power over autonomous living bodies and quashing the regulative independence of administrative agencies - corporate personhood is emerging in the early twenty-first century as the new Leviathan.

In July 2022 I participated in a panel sponsored by the journal Law and Literature devoted to an exceptionally interesting book by Lisa Siraganian, a Professor at Johns Hopkins University who holds a J.D. and a Ph.D. in Comparative Literature. Modernism and the Meaning of Corporate Persons investigates how legal personhood aligns with the impersonal subject of literary modernism. Siraganian brings her professional legal training to bear on the jurisprudential contradictions arising from corporate personhood, itself reliant on abstractions of human will, intention and belief. She shows how such abstractions within the law have been historically manipulated; used to justify slavery, inequality, corporate indifference, limited liability and judicial activism (the latter with obvious relevance to a moment in the US post-Roe v Wade in the throes of judicial extremism).


Modernism and the Meaning of Corporate Persons recounts how the “inferences of intention and meaning” imputed to corporations, allowed them to seize all kinds of powers formerly restricted to persons. It fills in the astonishing backstory of how, in the United States, we arrived at the 2010 Supreme Court decision of Citizens United v. Federal Election Commission that, in successfully arguing that “corporations are people,” helped reclassify money in political campaigns as “free speech.” This also turns out to be a story that helps explain how, as she puts it, “abstracted legal personhood for corporations flourished as stigmatized African American personhood endured. To disguise the power and enhance the rights of the corporate person, its corpus was concealed (“invisible”) and rendered abstract (“intangible”), while African Americans became hyper-marked by experience.” (1) Siraganian further unpacks the historical implosion of this racist legal reasoning, arguing that “the invisible corporate man” eventually became vulnerable to its own logic when “African American plaintiffs counter-intuitively used the logic of the abstract corporate person as a model for equality, undermining racially restrictive covenants and discriminatory organizations, two enduring manifestations of Jim Crow law.” (2) A landmark case of 1908, People’s Pleasure Park C. v. Rohleder – in which African Americans sought to build an amusement park for the amusement of African Americans – forced the court, and I cite Siraganian, “to follow the logic of abstract personhood it had endowed corporations but withheld from African Americans” because if it hadn’t held to a raceless notion of corporate persons, it would have risked exposing itself “to greater financial liability.” (3) (Siraganian is citing an argument made by Richard Brooks in his essay “Incorporating Race,” 2006). (4)


Siraganian’s book also illuminates the extent to which legal definitions of human agency and limited corporate liability shape everything about the world we inhabit, generating the force-fields of current political struggles over dignity, recognition, due process, and bodily autonomy.

As the notion of the corporate entity is stretched and the political reach of corporations extended from the 1890s to the Reagan era, we begin to understand better how nonliving entities came to be vested with the status of human actors. The consequences are significant; conditioning matters of free speech (money as speech), political representation (Citizens United), and the successful appeal to religious liberty by for-profit corporations to trump non-discriminatory best practices (Hobby Lobby). The book also illuminates the extent to which legal definitions of human agency and limited corporate liability shape everything about the world we inhabit, generating the force-fields of current political struggles over dignity, recognition, due process, and bodily autonomy.


Reading Siraganian’s book in the immediate wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health which struck down Roe v. Wade on June 24, 2022, I could not but be struck by the affinity between the “anyone” status of the “modernist” protagonist and the “any person” predicate of fetal personhood, invoked in Dobbs to justify the assignment of rights-bearing status to the “pre” or “unborn.” Dobbs brings out the common rationale – the literal raison d’étre or reason of being underwriting legally entitled entities detached from embodied subjectivities – that ties conservative-movement models of corporate personhood to those of fetal personhood. In Dobbs we read: “In the 1880s, this Court reckoned corporations ‘person[s] under the Equal Protection and Due Process Clauses. The rationale – a canon of interpretation first expounded by Chief Justice Marshall and central to originalism today – itself blocks any analytic path to excluding the unborn. Indeed, the originalist case for including the unborn is much stronger than for corporations.” (5) As Lisa Needham retorts in “A Brief Guide to Fetal Personhood,” this argument is “as damning an indictment of the Supreme Court’s corporations law jurisprudence as it is of originalism.” (6)



Image credit: received

I can now well imagine an added chapter to Lisa Siraganian’s book that would parse the finer points of “corporate personhood” in relation to prenatal humans (whose “quickening” from fleshy mass to anima or human soul, as the Constitution puts it, posed problems of anachronistic science that the Dobbs Court originalists were at pains to override). In Dobbs, both corporate persons and the unborn come across as existential hypotheticals (not without parallel to Alexius Meinong’s “beingless objects” based on the concept of Sosein, “so-being,” which designates categories of unreal beings existing in metaphysical worlds other than actual). (7) These “So-beings” are granted enormous sway over living individuals, especially pregnant individuals. We now must contend with the sci-fi-like question of how far the reach of zombie personhood will eventually extend. If the Thomas concurring opinion is any indication, the corporate personhood of the unborn will stop at nothing short of according full rights-bearing status to foreclosed persons – which is to say, to the contracepted, those hindered from ever making it to conception (as well as those who are “contragested,” a term coined by the abortion pill inventor Émile Baulieu to designate egg-fertilization blockers). (8) The spectral weirdness of legions of pre-existent conditional subjects pressing in on the lives of living people is already palpable. But it could be glimpsed at the creepy conclusion of Emile Zola’s novel Fécondité (1899), a natalist tract dressed up as fiction, in which Zola conjures an invisible army of the unborn who will be brought to term by women responding to the call to populate French settler-colonies in Africa (this colonialist, pro-life Zola is little known to people who heroize him for his courageous stand in the Dreyfus Affair).


As the tenets and principles of corporate personhood gain traction in the rulings of a majority arch-conservative U.S. Supreme Court and in lower courts throughout the nation - exerting increasing power over autonomous living bodies and quashing the regulative independence of administrative agencies - corporate personhood is emerging in the early twenty-first century as the new Leviathan.


 

NOTES


1. Lisa Siraganian, Modernism and the Meaning of Corporate Persons (Oxford: Oxford University Press, 2021), p. 191. Further references to this work will appear in the text abbreviated S.


2. Siraganian, Modernism and the Meaning of Corporate Persons, p. 195.


3. Siraganian, Modernism and the Meaning of Corporate Persons, p.197.


4. Siraganian, Modernism and the Meaning of Corporate Persons, p.196.


5. Brief of Amici Curiae, No. 19-1392 Dobbs v. Jackson Women’s Health https://www.supremecourt.gov/DocketPDF/19/19-1392/185196/20210729093557582_210169a%20Amicus%20Brief%20for%20efiling%207%2029%2021.pdf (pp. 3-4)


6. Lisa Needham, “A Brief Guide to Fetal Personhood,” https://ballsandstrikes.org/law-politics/fetal-personhood-explainer/ Accessed 7/8/2022.


7. Alexius Meinong, “The Theory of Objects.”[“Uber Gegenstandstheorie,” 1904] see, Realism and the Background of Phenomenology, ed. Roderick M. Chisholm (Glencoe, IL: Free Press, 1960). 76-117.


8. Lauren Collins, “The Complicated Life of the Abortion Pill,” The New Yorker 7/5/2022. https://www.newyorker.com/science/annals-of-medicine/emile-baulieu-the-complicated-life-of-the-abortion-pill

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