Exceptionally Gifted: Corporate Exceptionalism and the Expropriation of Human Rights (original) (raw)

2020, Human Rights After Corporate Personhood: An Uneasy Merger

In this article, I address case law, U.S. culture, and gift theory to trace how the idea of corporate personhood has, since the late nineteenth century, developed at the expense of human rights. In prior publications, I argued that corporations, both ontologically and under US stare decisis, should be considered incapable of producing any speech beyond commercial speech. Whatever “personhood” or rights a corporation has are intrinsically delimited by and pertain entirely to the domain of commerce: in other words, a corporation can possess only commercial, not human, personhood. The perverse abnegation of these limitations is all the more ironic given the Court’s recent equation of money with speech in Citizen’s United v. Federal Election Commission which, among other things, fails to differentiate, even in terms of the Court’s own precedents, between free speech and commercial speech. Though now attributed with something resembling human personhood, corporations still cannot act with univocal personal intention or human agency. I argue that as a result of many such anomalies, corporations are increasingly structured to expropriate personal rights while avoiding aggregate liability. I coined the term corpography to connote the limited forms of self-representation – such as advertisements, filings, and corporate histories – that corporations can generate as speech.. I proposed that personhood is a zero-sum game and that the more “personhood” and human rights corporations attain, the less of those traits and rights people retain. In the final necessary inversion – created by the displacement of human personhood and human rights by corporate personhood and corporate rights ¬– corporations don’t just become people; people must become like corporations. In other words, the logic that allows corporations to become persons is inextricable from and predicated on a logic that requires persons to begin to take on the attributes of corporate entities. This process, which I treat as a kind of negation of gift-giving or the potlatch, both documents and further precipitates a redistribution of wealth in a kind of polarizing feedback loop, but the more consequential and less examined aspect of the expansion of corporate personhood pertains to its effects in ontological and epistemological terms. In many ways, the current, ever-increasing wealth gap in the United States is actually a personhood gap. I contrast case law that treats corporations as deserving of some form of public assistance with case law that treats the poor as undeserving, and analyse how these cases implicitly presuppose or develop a theory of human rights. In the United States, private corporations have over a long period commingled incommensurate aspects of the private and the public and become recipients of public rights and gifts in inverse proportion to the way individuals, and especially the poor, have lost access to them or become ineligible for public benefits. I briefly invoke gift theory to address how corporations, in claiming exceptional status in an exceptional nation, pervert notions of public welfare, the common good, and democratic rights. In numerous contexts, Citizens United, and the increasingly pervasive attribution of personhood and rights to corporations, codifies a zero-sum game between corporations and the poor (and ultimately between corporate personhood and personhood itself).