Today, in “SundayReview” in the NY Times appears an article by Eric L. Lewis. He describes himself “As a corporate litigator who has also spent more than a decade defending Guantánamo detainees, I have been trying to figure out why corporations are worthy of court protection and Muslims held in indefinite detention without trial by the United States at a naval base in Cuba are not.”
An entire decade? He spent an entire decade pondering this? And after all those hours of contemplation this is the distilled wisdom he offers?
Is this what legal scholarship produces in the 21st Century? This is mental masturbation! Students of Law cannot differentiate between POW’s on the one hand and Corporations or Unions on the other in regard to personhood and their inherent rights. Talk about straining at gnats and swallowing camels!
It may be possible to differentiate Hobby Lobby from that of Citizens United. Does incorporation allow exemptions from legal obligations based upon the religious beliefs of the majority of stockholders? Maybe. Maybe not.
Does Freedom of Speech apply to corporate entities? Obviously it does. Clearly a publishing corporation would be immune from government restrictions as to what projects it elects to undertake, or we would lack any free press. So would the Court have to define the amount of business activity a corporation invests in printing and publishing? Would freedom of speech be recognized only for “publishing corporations” with, say greater than 50% of its activity being devoted to printing and publishing? Or 70%, or 80%? Clearly corporations retain Free Speech. Why?
The difference between Citizens United and Hobby Lobby is the difference between specific corporate privileges that would exist in the State of Nature and those that would not. The first and obvious point is that corporations do not exist in the State of Nature. Given that an accepted legitimate authority confers corporate status, the absence of such authority removes any fictional legal status that a group of individuals enjoys.
Thus, in the State of Nature there are only individuals and their voluntary associations, period. Only when society creates concrete government is there delegated authority to define and enforce contract and criminal law and undertake various projects that are presumed to benefit the members of society. Society can create government that lacks the authority to charter corporations, or has the authority to forbid it. In that case the Natural Right of Freedom of Association remains unhampered. Individuals may associate for any reasons and ends, including self-interest.
Here is the difference between Citizens United and Hobby Lobby. In societies whose legitimate governments do not allow the legal fiction of corporate selfhood the natural right of association remains unhindered. Individuals of any association by so joining do not lose any of their inherent rights. Speech is still a natural right. However the tax breaks and other benefits of incorporation are not natural rights that accrue to voluntary associations. In a society lacking legal incorporation (i.e. in the State of Nature) individuals who refuse to pay taxes (that have been legitimately placed upon all citizens) by virtue of their membership in a certain voluntary association are no more or less than tax-evaders.
How the Muslim prisoners in Gitmo figure into questions of individual liberty in the State of Nature vs. that under legitimate government is beyond me. The author is straining at gnats and swallowing camels. (Hmmm, if a pun fits wear it!!!)