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Wednesday, February 24, 2016

"Human" rights and the corporate person

by John MacBeath Watkins

There is a peculiar conflict in the way society regards corporations. It appears they have the inalienable rights of a person, but they can be owned like an object.

In the Citizens United case, the U.S. Supreme Court ruled that corporations have a right of free speech, expressed in money. Yet we keep hearing that publicly traded corporations are owned by the shareholders.

The inalienable (that is, not sellable) rights referred to in the Declaration of Independence belong to people because, according to John Locke's Second Treatise of Government, people are born owning themselves, and cannot be owned by another.

After all, if I sell a chair, it cannot care who sits in it, or even if it is broken up for firewood. But as long as I remain in my body, I will care how I am used. That is why slavery is incompatible with our ideals of freedom.

But a corporation can be bought and sold, merged or dissolved, without feeling a thing. It may be a person in that it can make contracts and own property, but is it, itself, property? Many corporations belong to one person, existing as a tax category that saves the owner money compared with operating as a sole proprietor. Those can, without question, be bought and sold.

The situation with publicly traded corporations is a little more ambiguous. Shareholders do not own a corporation in the way a partner could own part of a business. They own, in theory, a share of any dividend the company distributes, and the sum of all shares is market capitalization, not ownership per se. The traditional theory of corporations was that the corporation was a person, its board functioned as sort of its brain, and management as its nervous system.

But in the 1970s, a group of economists (the most notable being Milton Friedman) began to argue that shareholders own a corporation, and if the corporation fails to maximize shareholder value, this is an example of the old owner/agent problem, and the agent (the board and management) are operating the corporation in their own interests rather than in the interest of the owners.

Legally, this is hogwash. The argument is usually supported by reference to Dodge v. Ford Motor Co., a 1919 case about what was then a closely held corporation rather than a publicly traded one, which is at odds with a body of subsequent case law.

But the fact is, that's how public corporations are managed these days. It may not be law, but it is custom. And the fact that public corporations can be taken private and then bought and sold makes it clear that we do not extend to them inalienable rights. They are not conscious beings, so they cannot care how they are used, so this makes a great deal of sense.

Yet we have this anomalous case, Citizens United, in which the highest court has ruled that they do have the inalienable right of free speech. This is, after all, a human right.

"Human rights" is a concept developed from the same idea of natural law that was the basis for the Declaration of Independence. The term came into use mainly after World War II and the disaster of the Holocaust. The Universal Declaration of Human Rights was passed by the U.N. General Assembly in 1948.

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...
— 1st sentence of the Preamble to the Universal Declaration of Human Rights
Compare this to the language of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
— United States Declaration of Independence, 1776
We do not give corporations the rights of life or liberty, and current practice is that they pursue, not happiness, which they in any case cannot feel, but shareholder value. Do we consider them to be members of the human family? I think not.

I don't mind people getting together to lobby, or issue statements, but Citizens United applies to corporations that were not formed for this purpose. For example, some shareholders are quite upset that ExxonMobile spent its money trying to conceal what it knew about climate change and convince policy makers that it was all a hoax. The mendacity of the corporation was not the reason they bought shares and became associated with its statements.

Citizens United is not about human rights. It is about inhuman rights.

Tuesday, February 16, 2016

Conspiracy theories, Antonin Scalia, and myth

by John MacBeath Watkins

An overweight, 79-year-old man dies in his sleep. Nothing unusual about that, except that he was Antonin Scalia, a conservative Supreme Court justice who was instrumental in remaking federal law and overturning numerous precedents.

Soon, people begin claiming he was murdered. Some were the usual suspects, such as Alex Jones, a radio personality who traffics in conspiracy theories, who claimed Scalia might have been killed by the Illuminati (a secretive group founded in Bavaria in the 1770s and generally considered to have ceased to exist by 1790.) Jones also claimed that there was a plot to eliminate the Bill of Rights and constitution, that there is a "foreign offshore coup" in America, so his claim that the Illuminati are still in business and killing people is perhaps unsurprising.

A day later, Feb. 15, presidential candidate Donald Trump went on Michael Savage's radio show and hopped on the conspiracy bandwagon, taking seriously the question of whether Scalia was murdered and claiming that the jurist had been found with a pillow on his face, a claim that was based on an eyewitness who had said the pillow was on Scalia's head, but not on his face.

These sorts of conspiracy theories have been common since the assassination of John F. Kennedy. Figures ranging from Lyndon Johnson to Fidel Castro have been blamed for Kennedy's death, and yes, there are people who theorize that the Illuminati killed JFK.

Why do these conspiracy theories arise?

My theory is that when we are faced with momentous occurrences, the banal, realistic explanation fails to give us a sense of control. It is so lacking in any sort of plan or teleology, that such an important person should die at a critical time, after all. Surely there must be an explanation that fits a pattern of meaning, rather than this being a random death of a man who was merely mortal.

We are, after all, creatures who make meaning and see patterns in the universe. It is comforting to think that someone is in control, or even that there are competing forces of good and evil vying for control, rather than to think that old men do die, and seldom choose the time or place.

Justice Scalia lived a good life and a significant one. That will be a comfort for those who loved him, but it is not enough for those who see the world changing and want to hold someone responsible.

We understand our world by telling stories about it. We must decide what makes a satisfactory story. Disciplines from physics to history have developed standards for what is a convincing story, but not everyone buys into the expertise of these specialists.

What makes a satisfying story for some people is one with an element of magic to it, a story with a majesty that feels compatible with the importance of events.

We are not so far from the days of myth and omen, and we still have a yearning to know what really happened, as opposed to the bald narrative of a death certificate. For some groups of people, conspiracy theories are myths that weave the world into something they can understand and accept.

They are too far from faith to accept that it is the will of God, to far from academic disciplines to believe in the standards of truth a judge or a historian would accept. They think, oh, he died just then, what a coincidence, which is a statement I would sincerely accept, but they mean it to be ironic, because they want to be wised up, to know the things others do not.

Wake up sheeple! they cry, and present their lovely fantasy to a world that, for the most part, won't accept it.

But they know, they know. The world cannot be the ordinary place where a death has no meaning, and is completely unplanned. It is a significant death, so there must be a web of meaning around it other than the obvious.

And every proof that they are wrong is part of the cover-up, confirming their belief in the narrative they've chosen, because why would there be such a concerted effort to deny it if there were not secret, subterranean forces at work in a wold of ghostly shadow empires?

I picture our ancestors watching a volcano destroy a nearby island, and inventing causes with a majesty to match the explosion of a mountain. We aren't new at myth making, we know it and we love it.

And still, when a significant event occurs, we invent a myth to explain it.