Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.
It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,
Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.
Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.
I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.
Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?
I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.
(Article spotted via Larry Solum.)