by Leo Coleman
A series of recent, controversial U.S. Supreme Court decisions has addressed, in various ways, the relations which a person might have with a corporation—as owner, employee, consumer, even citizen. There is no single chain of reasoning or doctrine of corporate personhood defined by these cases, and expert observers class them instead by the various constitutional problems they present or the interests their outcomes support (cf., Coyle 2014: 315-316). Still, the big rocks above the waterline in this tide of cases, Citizens United (2010) and Hobby Lobby (2014), do seem to mark a developing constitutional jurisprudence that consistently links corporate forms to rights, both granting constitutional rights to new entities and making even the individual realization of rights dependent on a prior incorporation of identity. As I argue in my reading of Citizens United, the majority decision in that case by Justice Kennedy presents a novel vision of the reality and “identity” of corporate persons. Here, I would like to expand my analysis to take account of the Court’s recent decision in Hobby Lobby and to address some wider philosophical and anthropological concerns raised by the proliferation of entities demanding and exercising rights, often at the expense of individuals and citizens.
Citizens United and Hobby Lobby presented different matters to the Court—about campaign finance and religious accommodations, respectively—and neither majority decision spends much time arguing about the status of corporations. Their personhood is asserted rather than argued. I will try to show that these decisions, in fact, make coherent claims about the substantial identity and representational function of artificial corporate bodies. I will focus on the symbolic work of these decisions (Whitehead 1985)—that is, how they convey ideas about personal agency, roles, and responsibilities and use argumentation and rhetoric to link identity to incorporation in new ways, with effects at once political, ethical, and even ontological. I will return to large issues of symbolism, ethics, and ontology below; however, it should be noted that legal anthropology has a longstanding focus on the two-way relation between formal legal rules and the processes of dispute and resolution by which they become ingredient elements of social life and personhood. By focusing on formal judicial argumentation in Supreme Court decisions, and the wider ontological stakes of notions like “corporate personhood,” I hope to extend and renew these long-term disciplinary interests.
In Citizens United, Justice Kennedy, writing for the conservative majority on the Court, dictated that the government could not put limits on business corporations’ (and trade unions’) spending on politics. Such spending, he said, represented corporations’ protected First Amendment speech, and “the identity of the speaker,” whether corporate or individual, is not a constitutional basis for regulating speech. In Hobby Lobby, the same conservative majority effectively extended the logic of Citizens United—that corporations can claim First Amendment protections—in recognizing a corporate right to religious exercise and allowing for-profit business corporations to invoke religious exemptions to generally-applicable laws and regulations.
The political challenge to Citizens United has turned on the apparent breadth of the power granted to corporations, as opposed to “real” people and their speech. But, as several legal scholars have pointed out, the legal personhood of corporations is a necessary and flexible tool of recognition and regulation that enables widely-different forms of association (Tribe and Matz 2014). It cannot simply be counterpoised against real personhood. Indeed, I write in my article that any politicized distinction between “real” and corporate persons is anticipated and forestalled by Kennedy’s elaboration of “corporate identity” as no basisfor regulating political speech. This corporate identity is first articulated by Kennedy as a formalism—no more than any other should the speech of corporations be regulated—but in the course of the decision corporate identity starts to be treated as something substantial and personal, as the site of a political demand for inclusion. Thus, Kennedy is able to draw, implicitly, on the cultural power and logic of “identity politics”: if the identity—not the artificial, legal status—of a corporation is at stake in its public speech, then the distinctions drawn by previous campaign finance regulations become invidious and even discriminatory attacks on a corporation’s personal rights. In this “substantialization” of corporate personhood as an identity, a relational “structure seems to yield to substance” (Dumont 1980:227).
Turning now to Hobby Lobby, it is worth detailing how Justice Alito, writing for the majority, arrives at the finding that corporations can legitimately claim that their actions are exercises of a religious conscience. His argument proceeds differently from Kennedy’s rhetorical use of “corporate identity” but reaches the same point, attributing substance to the diffuse relations of corporate personhood, and even finding signs of personal intention in corporate actions.
Unlike Citizens United, the legal issue in Hobby Lobby is not directly a matter of constitutional interpretation, but rather turns on a statute enacted in the 1990s to protect religious liberties. Importantly, the issues that spurred this legislation involved religious practices that also implicated minority identities: in the deep background of the Religious Freedom Restoration Act (RFRA) are Native Americans seeking to use prohibited drugs in religious practices. As is made clear by Ginsburg’s review of legislative history in her dissent in Hobby Lobby, Congress explicitly widened the definition of religious observance to encompass individual performances of identity, no matter their basis in dogma or doctrine, but it did not seek to create new “entities” entitled to claim religious exemptions to government regulation (573 US , opinion of Ginsburg: 10).
To apply these statutory protections of identity and expression to corporations, then—and in particular to the two family companies whose religious objections to the contraception-coverage mandate in the Affordable Care Act (ACA) were at issue in Hobby Lobby—Alito deploys, at first, a well-known conservative literalism and formalism. Turning to the Dictionary Act, which defines terms of art for the purposes of statutory construal, he finds that since RFRA refers only to the religious exercise of “persons,” and corporations are persons under the Dictionary Act, there can be no distinction being made in the statute itself. In terms of the particular injury at stake in these cases, he asks why, moreover, since not-for-profit corporations, churches, religious orders, and other groups were granted exemptions to the ACA’s contraception mandate—in accordance with RFRA—should this recognition of a valid religious exemption not apply as well to for-profit corporations. Such literalism and formalism is, in itself, a common and unsurprising bit of judicial interpretation, though we should not ignore just how local it remains, as a hermeneutic, rooted in specifically American cultural epistemologies, themselves with religious bases (Crapanzano 2000).
Apart from this literalism, however, Alito also needs to provide evidence that a business corporation and its owners share a religious identity. The basis of the claim for a “religious exercise” exemption from the ACA, in this case, is that the use of certain forms of contraception by any of Hobby Lobby’s over 8,000 employees, if the contraception were paid for by insurance provided by the company, would offend the religious conscience of the owners. This involves Alito in a search for evidence that will allow him to extend to at least some for-profit corporations the same kind of judicial analysis that allows churches and non-profit corporations to claim “religious” exemptions, on the grounds that there is no separation between the religious beliefs and actions of members or officers and those of the incorporated body.
Justice Alito cites an array of textual evidence to show that the corporate form is, indeed, a site of religious exercise and that the owners have a conscientious concern for the actions of their corporate employees—resolutions by the boards of directors, advocacy advertisements paid for by corporate funds, and statements of religious conviction from the owners are cited in support of this contention (573 US , pp. 11-14). Moreover, he interprets the companies’ business activities and other actions—rules setting business hours, other hiring practices, and charitable donations—as corporate expressions of religious conviction (not even mentioning, let alone entertaining, less selfless motivations for these corporate actions, which might be connected to the demands of public relations or to tax-minimizing strategies, for instance). This last analytic move is distinct from the literalism of “person” in that it explicitly seeks to find the religious conscience of the owners ingredient throughout—and affected by—the widely dispersed actions of the corporation, its employees, and officers. This represents, I think, a significant extension and application of the very same, yet shadowy and unformulated, judicial conception of “corporate identity” which gives Citizens United its particular cultural force.
The fact that Alito is making an argument, not just reviewing the settled evidence, is clear if we turn to the lower-court record. A judge in the Federal District Court who ruled on one of the two cases at issue in Hobby Lobby, reviewing the same evidence that Alito relies upon, noted that although the owners of a family company might well, in their capacity as board members, make resolutions of the principles that guide their business activities, the articles of incorporation of this for-profit corporation are “silent as to any religious purpose or belief” (917 F Supp 2d 394, ED Pa.: 403). Further, as the Harvard Law Review pointed out in a note on the case as it made its way through the appeals courts, the reasoning that puts the corporate form at the service of its owners and managers as a venue for religious expression elides important and well-established distinctions in corporate law between the actions and “intentions” of the corporation and those of its officers.
Alito explicitly rejects such distinctions between the corporation and its principals, as if there were no other interests, no other personal agencies, active within a large business (op. cit., p. 18-19). In these two cases, the Court’s conservative majority has thus achieved, if only rhetorically, a powerful marriage between, on the one hand, identity as it has come to be understood in American culture—a truly personal level of agency, beliefs, and conscience—and, on the other, the agency-expanding and -distributing instruments and powers of incorporation. As Justice Ginsberg says in her vigorous dissent in Hobby Lobby, the Court introduces notable novelties into the constitutional treatment of persons: the Court has relegated to the status of mere object and instrument all the other persons—“third parties”—who work in and contribute their labor and agency to the corporate form without sharing in its new identity, and have “expand[ed] the class of entities qualified to mount religious accommodation claims” (op. cit.: 8, 10).
I do not suggest that any of this is strategic. Justice Kennedy no more sought to use identity politics to justify expansions of rights to corporations than Justice Ginsburg, in the passage just quoted from her dissent in Hobby Lobby, consciously evokes the contemporary philosophical turn to “entities” beyond the human as a source of critical power. But, these fruitful and inadvertent echoes of social-theoretical conceptions of personhood and identity help us listen for the wider social consequences, and ethical relevance, and of these judicial arguments. As I discuss in my article, A. N. Whitehead, in the 1920s, and C. Wright Mills, in the 1950s, both identified corporations as taking on a new importance in American society as sites for the formation and “becoming” of individual men and women as gendered and political beings. Both Whitehead and Mills sought to understand emergent distributions of personhood and social power in an era in which corporations were accorded great respect in the law and in culture. With Hobby Lobby, the Court’s conservative majority has moved even further toward a radically substantial, even vital, view of corporate agency, licensing an extension of corporate conscience in and through the bodies and actions of myriad others.
My use of Whitehead in my article was guided by his explicit references to American business corporations and corporate power in the 1920s and ’30s. I sought only to deploy his philosophical concerns in order to historicize my own critique. I did not explore how his broader philosophical metaphysics might relate to this judicial logic. Now, however, the developing jurisprudence of corporate identity seems to cut uncannily close to Whitehead’s processual ontology, particularly in Alito’s extension of personal agency and conscience through objects and into other humans. Whitehead demolishes conventional oppositions and boundaries between subjects and objects, speaking instead of “occasions” on which a subject (human or non-human) takes shape in relation to objects and events. On Whitehead’s “occasions,” human subjectivity is itself realized in ontic relation with other things, affects, and processes, each with their own subjectivity. Set alongside Alito’s flattening refusal of distinctions, in which he makes subjective intention totally equivalent to corporate action, Whitehead’s philosophy seems to offer no distance from which the flow of transactions and transformations could be critically evaluated, certainly no common-sense hierarchy of persons-as-value to ground an ethical challenge.
However, in a short, provocative engagement with Whitehead, Judith Butler distills from his processual ontology an ethic—no doubt tinctured by her own reading of subjectivity and its objects and objections—which is relevant to this occasion.
Butler examines precisely the question of the relevance of Whitehead’s metaphysics to ethical criticism. How to make ethical use, Butler asks, of Whitehead’s thoughts on becoming and process, since they appear to diminish the distinction between human and non-human, between life and matter, between subject and object, and with that to radically condition any ethical possibility of taking responsibility for life (whether human or not)? Returning to key formulations of Whitehead’s metaphysic of actual occasions, Butler finds that “only in the context of [its] relevance to a humanly structured world” does a thing ingress into subjective occasions and does a subject become within its objects (Butler 2012: 5-7, emphasis added).
For Butler there is a simultaneously ethical and epistemic moment that emerges within Whitehead’s processual ontology—“the epistemological capacity to apprehend a life is partially dependent on that life being produced according to norms that qualify it as a life, or indeed, as part of life”—norms that impose distinctions, but also obligations. This ethical distinction that marks the relevance of an occasion depends upon the apprehension, the sensing, of the precariousness of shared life. The life at stake need not be human or even animal, but it must be marked by precariousness, which makes it singular. “One life bears upon another, [and thus] a certain relevance provides the conditions under which any of us appear as subjects or any objects emerge within the horizon of experience. . . . We could not be and could not know outside this conditioning ‘relevance’—the fact that bodies matter, that lives matter, even when we claim they do not” (Butler 2012: 16-17, emphasis added). Butler thus reserves some purchase, amidst the proliferating entities of processual ontology, for ethical distinctions on the basis of shared life and the responsibility to mourn its loss.
As principles for interpretation, even legal interpretation, the delimited “horizon of experience” of a subjective becoming and the ethical “relevance of the occasion,” then, impel upon us a primary recognition of life as precarious—as subject to foreclosures both symbolic and real, and liable to be mourned.
It is hardly original and perhaps not even argumentatively useful to note that, as creatures of the law, corporations lack the human attributes of conscience, belief, and ordinary mortality. However, it is perhaps fruitful to note that the agency they possess only emerges within a humanly structured world and that we know this because of our apprehension that the life they contain—human and collective—is precarious, and singular. This precariousness makes, or marks, their ethical boundary. Thus, any demand that corporations should be measured by a standard of democratic and human relevance is not a limitation on their ontological freedom of becoming, but is rather a stipulation of their, and our, prior relationality and dependence. Moreover, the selves who are ingredient in the occasion of a corporate becoming are always going to be plural. This ethics demands that we be able to count at least to three, to mark plural distinctions and differences, and to recognize the mutual limitations these pluralities impose.
These thoughts about personhood, process, and relevance, with their ontological and anthropological dimensions, provide the core arguments that I would set against Citizens United and Hobby Lobby. The instant problem with these decisions is neither the legal formalism they both deploy nor the fictiveness of the persons they protect; rather, neither Kennedy’s squishy notion of “corporate identity” nor Alito’s extension of corporate conscience can admit enough entities into the occasions on which subjects claim rights and make relations. Moreover, they give us no tools for apprehending the internal limitation to which all forms of life are subject. The ontological expansion and ethical distinction that this anthropological challenge demands will likely remain foreign to the law; however, it is a service of anthropological and philosophical argument with the law to allow us to articulate both the ontological plurality and the boundaries of personhood. Finally, this plurality and these boundaries are what make personhood an ethical concept, one relevant to these judicial decisions.
Butler, Judith. 2012. On this Occasion. In Butler on Whitehead: On the Occasion. Roland Faber, Michael Halewood, and Deena Lin, eds. Pp. 3-17. Lanham, MD: Lexington Books.
Coyle, Marcia. 2014. The Roberts Court: The Struggle for the Constitution, Expanded Ed. New York: Simon and Schuster.
Crapanzano, Vincent. 2000 Serving the Word: Literalism in America from the Pulpit to the Bench. New York: New Press.
Dumont, Louis. 1980 Homo Hierarchicus: The Caste System and its Implications, Rev. Ed. Chicago: University of Chicago Press.
Harvard Law Review. 2014. Recent Cases: Hobby Lobby Stores, Inc., vs. Sibelius. Harvard Law Review 127(3): 1025-1032.
Tribe, Laurence, and Jonathan Matz. 2014. Uncertain Justice: The Roberts Court and the Constitution. New York: Henry Holt.
Whitehead, A. N. 1985 . Symbolism: Its Meaning and Effect. New York: Fordham University Press.
Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 
Citizens United v. Federal Election Commission 558 U.S. 310 
Conestoga Wood Specialities v. Sebelius 917 F Supp 2d 394 [ED Pa., 2013]
Coleman, Leo. The Relevance of Personhood in Citizens United and Hobby Lobby. PoLAR: Political and Legal Anthropology Review Online, 27 October 2014, https://polarjournal.org/2014/10/27/the-relevance-of-personhood-in-citizens-united-and-hobby-lobby