Thursday, July 3, 2014

The "Person" in American History

After the Hobby Lobby case a lot of folks are talking about personhood.  Can a corporation be a person?  I wrote today at Perspectives on History about my concern over how the Supreme Court in this case, and in a lot of previous cases, have treated for-profit corporations as persons.  Several people have contacted me to thank me for the piece.  Others disagree strongly with my take on the case and have let me know!  Over at my Facebook page there is a small conversation/debate going on about the case. In one of the FB comments I tried to clarify my argument in the Perspectives piece.  Here is an edited version of what I wrote there:

It seems to me that the case was rightly decided based on the broad interpretation of the RFRA and the Dictionary Act. The AHA asked me to reflect historically on this case. With that in mind, I still think Madison, Jefferson, Backus, or Williams would find this decision strange. And why wouldn't they? They lived in a very different time. The point, again, is change over time. That is what I was trying, as a historian, to show in Perspecitves, the official blog of the American Historical Association.

Having said that, I will admit that I close the piece by wondering how Christians can so enthusiastically support the definition of a person as a corporation. I am surprised more Christians are not bothered by this decision. I used to teach a course at Messiah College called Created and Called for Community. In that class I tried to get my students to think about what it means to be a person in the sense that we are created in the image of God, have dignity and worth, have the capacity to reason and exist in the context of community and life with others. This is my theological understanding of a person. And just like many Christians are bothered by the way the state defines "marriage," I am bothered by the way the state has tried to define a person.. 

I know not all Christians agree with me, but I think it is important to guard this theological idea of personhood against the kinds of market forces that define a person as little more than a consumer. To me, non-profits serve the public good and thus should be granted religious freedom. For-profit corporations exist to accumulate wealth and garner profits. While I don't deny that a for-profit corporation can also serve the public good and can provide much needed services, most for-profit corporations are not driven by this kind of mission. I still really like Patrick Deneen's take on this in his piece in the American Conservative magazine. (I link to it in my AHA piece. It is a must read.). Deneen's piece shows that may concern here is an inherently conservative one. My thoughts here are also informed by several of the essays in Wilfred McClay's edited volume: Figures in the Carpet: Finding the Human Person in the American Past.

If you want to explore the concept of "the person" more deeply and historically, I highly recommend Figures in the Carpet. Bill McClay has put together a fascinating collection of essays on personhood in American history.  Here is book's jacket description:

What does it mean to be a human person? This volume is a historical inquiry into that foundational, deceptively simple question. Viewing the human person from various perspectives -- law, education, business, media, religion, medicine, community life, gender, art -- sixteen historians of American life explore how our understanding of personhood has changed over time and how that changing understanding has significantly affected our ideas about morality and human rights, our conversations about public policy, and our American culture as a whole.

9 comments:

Tom Van Dyke said...

Having said that, I will admit that I close the piece by wondering how Christians can so enthusiastically support the definition of a person as a corporation. I am surprised more Christians are not bothered by this decision.

The key dynamic here is "closely held"--as in a privately held, in the case of Hobby Lobby, a family-owned business.

The key question is whether, in order to participate in commerce, the world outside our home and church, we must park our religion inside their doors!

http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-the-ruling-and-its-implications-for-religious-freedom/responses/hobby-lobby-a-modest-comment-on-a-prudently-modest-decision

Can business corporations “exercise religion,” and thus have any claim to free exercise rights? Critics often say no (as does Justice Ginsburg); in my experience, they sometimes attain high dudgeon in denouncing the gross ontological error of supposing that a bloodless, soulless legal abstraction can have the capacity to “believe” or to “worship.” The Court’s response to this objection is brief, calm, and commonsensical, avoiding any temptation to go metaphysical. Corporations are legal fictions, the Court acknowledges, but they are fictions “used by human beings to achieve desired ends.” Consequently, protecting the free exercise rights of closely-held corporations “protects the religious liberty of the humans who own and control those companies.”

At another point, the Court quietly observes that denying free exercise protection to corporations owned and managed by religiously-motivated families like the plaintiffs in these cases “would effectively exclude these people from full participation in the economic life of the Nation.” That observation, I am inclined to say, touches on the true underlying philosophical disagreement. Is our vision of the nation one in which people are invited to participate fully in the marketplace (economic, political, maybe even academic) as the people they are, complete with convictions, commitments and consciences? Or do we want to make it a condition of full public participation that people leave these central, constitutive commitments at home (at least if the commitments are “religious”)?


And with all due respect, if historians are going to dabble in constitutional law, or give their theological opinions on what is truly Christian, certain groundrules need to be set down.

The historian could [and should, IMO] simply start and finish with the reply that Madison, et al., would have been appalled at the idea that there's a "right" to free contraception, or that the government should force anyone to supply it in violation of the religious conscience.

Jimmy Dick said...

Why would Madison be appalled over contraception? What evidence is there that would lead to that line of thinking on the part of Madison? Why would he reject the free part? Taking care of the poor was a duty of the state in his time if we are looking at the Constitution time period.
Why would supplying it be a violation of the religious conscience? The Second Great Awakening was after the Constitution was created.

You are trying to place Madison on one side when you have no evidence to support your opinion, Tom.

Tom Van Dyke said...

Blogger Jimmy Dick said...
Why would Madison be appalled over contraception?


James Madison wouldn't. Although not a Holy Roller himself, he would be appalled at his government ever forcing its citizens to violate their religious consciences.

Especially unnecessarily. Free contraception can easily be achieved by other means than bullying Hobby Lobby. That is the point.

The historian could [and should, IMO] simply start and finish with the reply that Madison, et al., would have been appalled at the idea that there's a "right" to free contraception, or that the government should force anyone to supply it in violation of the religious conscience.

Jimmy Dick said...

Madison was a man who believed in federal mandates. He supported some and didn't support others, but saying he would not support the ACA is ridiculous. In fact, Madison might very well have supported the ACA because health care was pretty bad in his day. Would he have supported the nonsense that a corporation is a person? I do not think so.
He might have been appalled at people like Hobby Lobby using religion as an excuse to force their views on their employees.

He also would have noted the hypocrisy of Hobby Lobby and others who support them over this issue. Of course we are talking about a man who supported the right to own slaves and believed in the legal discrimination against blacks and others on the margins of America. That is why using Madison and the Founders on modern positions is a bit difficult. They lived in a totally different world than we do. "The Past is a foreign Country."

Tom Van Dyke said...

Free contraception can easily be achieved by other means than bullying Hobby Lobby. That is the point.

In fact, that was the court's ruling under the Religious Freedom Restoration Act of 1993.

For the leftists on the court--and in some comments boxes--the present is a foreign country too. Principles are for suckers--there is only progress, and the power of the state.

Jimmy Dick said...

Following the law is not bullying Hobby Lobby. Forcing your employees to follow your religious beliefs is bullying your employees.

I'm not too worried about this. As America continues to shift to the left over time this ruling will be brought before the court and changed.

Tom Van Dyke said...

You might get away with all this.

But you might not.

Get ready for an even bigger threat to Obamacare
Obamacare

Obamacare's next hurdle: A fundamental challenge to the Affordable Care Act is about to be decided by the U.S. Court of Appeals for the D.C. Circuit. (Daniel Zender / For The Times)
JONATHAN TURLEY

http://www.latimes.com/opinion/op-ed/la-oe-0701-turley-obamacare-subsidy-halbig-20140701-story.html


Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn't establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn't establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.

Op-Ed
The broad reach of the narrow Hobby Lobby ruling
The broad reach of the narrow Hobby Lobby ruling
Erwin Chemerinsky
The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute's language does limit subsidies to residents of places with exchanges "established by the state," that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.

But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.

cComments
The Hobby Lobby case was only important symbolically of the overstretch and interference in business and personal lives of American citizens. By contrast, the Halbigg case has the potential pull out one of the props which has been supporting the entire rickety structure of Obamacare -- while...
DIRTLAWYER1
AT 8:19 AM JULY 01, 2014
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In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that "this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address." In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that "an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms." And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments.

Jimmy Dick said...

The solution is obvious. When the Democrats win in 2016 which they will and in the process regain control of the House, they will continue to pass more legislation that reinforces the ACA. I wouldn't be so happy about the Hobby Lobby ruling if I were you. That was meant to be very narrow and apply only to a specific situation.

In general, lower courts split on a lot of the ACA issues, but the trend is to support it. Also, you have supplied an article by a man who is a stanch opponent of the ACA. You left out something crucial. I'll let this article explain it. http://talkingpointsmemo.com/dc/halbig-obamacare-ruling-looms-dc-circuit

Basically, if the first three judges rule against the ACA, there is yet another ace in the hole for Obama to use. I'm not sure the Supreme Court is going to want to hear much more on the ACA. They may do like they are doing with gun control issues and not accept the cases. We will find out of course as time passes.

Tom Van Dyke said...

I'm not happy about any of it. Obama didn't have to do this. Free contraception was possible by other mechanisms. The aggression on religious belief was brutish.

This was not good government.