Reassessing Corporate Personhood in the Wake of Occupy Wall Street

Abstract

This article is about corporate personhood, discussed on the backdrop of class consciousness and criticisms of capital generated by the recent and continuing Occupy Movements. I am at first concerned with articulating the evolving jurisprudence of corporate personhood as developed in the United States Supreme Court. Combined with this doctrinal approach, I offer a Marxist criticism of corporate personhood jurisprudence that culminates in a discussion of the Occupy Movements’ logic of resistance to corporate domination in United States law and policy. First, I discuss the role Marxist criticism has played in legal discourse and articulate the importance of a Marxist framework for current legal criticism. Second, I focus on several authors, and their texts, which shape the current struggle against corporate personhood and shed light both on the Occupy Movements and the relationship between law and capitalism. Karl Marx is indispensable to this pursuit and I chose to focus on his discussion of law in The Eighteenth Brumaire of Louis Bonaparte, which I read in close comparison to Evegny Pashukanis’s The General Theory of Law and Marxism. Fernand Braudel’s Civilization and Capitalism provides an analysis of capitalism that illuminates the role of capitalist ideology in early proto-capitalist Europe and is one place to find an historical basis both for the evolution of capitalism and the Occupy Movement’s critique. This historical focus is traced through Charles A. Beard’s An Economic Interpretation of the Constitution where he brings the centrality of capital to government to the field of United States history. This historical critique will help the reader understand the concern corporate personhood causes amongst many people. I offer Beard as a more specific theorization of the role of capitalism to the law in the United States. This historical focus, I believe, is also in keeping with Marx’s interest in the historical. Third, I delve into the evolving jurisprudence of corporate personhood, describing the shifting terrain of Supreme Court decisions and the evolution of the corporation as a person from 1819 to the present. I hope that by beginning before Santa Clara, students, scholars, and activists might enrich their understanding of this complex area of law. Lastly, I analyze the Occupy Movement’s position as a critique to corporate personhood specifically and to capitalism in the legal and economic structures of the United States generally. By analyzing this modern movement, I hope a deeper understanding of the corporate person develops. I also analyze the many resolutions passed at the local and state level urging the end of corporate personhood and position these resolutions as indicators of the Occupy Movements’s success engendering at least quasi-legal change. The point is simple: capitalism has been enshrined in the jurisprudence of corporate personhood and through theoretical critique and analysis of modern practical resistance the jurisprudence of corporate personhood may be better understood and, indeed, critiqued.