When primary purpose at the adoption of it

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When we dive into the subject of corporations and their freedom of speech it is necessary to first understand the nature of such freedom. This issue is dated back in 1791, when the First Amendment was adopted into the Bill of Rights of the United States Constitution. Amendment I: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (“First Amendment”(1)) The First Amendment in its essence protects the right to freedom of religion and freedom of expression from government interference. An important element here is the freedom of speech, which allows individuals to express themselves without government interference or regulation. (“First Amendment”(2)) However, many conflicts were the result of the word ‘individuals’ and the question has been raised whether corporations can be seen as part of these ‘individuals’. During the Dartmouth College case in 1819, Chief Justice John Marshall emphasized that “a corporation is an in artificial being, invisible, intangible, and existing only in contemplation of law.” This view offers jurists the basis to decide that the corporation is entitled to a measure of constitutional protection and that the corporation has private rights although this view also held that state power was not unlimited. (Goodman & Stern, 2017) In the Dartmouth College case, the charter given by the state to the corporation was a contract that the state was bound to respect. The basis for this ruling was a fundamental fact of the corporate form in the context of constitutional law: corporations are formed by real individuals and those individuals have constitutional rights against the state. (Winkler, 2007) This leads us to the Fourteenth Amendment (1868) of which primary purpose at the adoption of it was to protect freed slaves. This Amendment of the U.S. Constitution contains a number of important concepts, most famously state action, privileges and immunities, citizenship, due process, and equal protection. Section 1 guarantees to all ‘persons’ due process of law and equal protection of the laws. However, the Framers of this Amendment did not intend to grant corporations these rights even though corporations were widespread and well known at this time. (Winkler, 2007) Nevertheless, during the Santa Clara County v. Southern Pacific Railroad case in 1886, the Chief Justice Waite made a comment that became the seminal precedent for a doctrine that a corporation is a person for the purposes of the Fourteenth Amendment. Chief Justice Waite said: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny to a any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”  (Kens, 2010) The Supreme Court issued an opinion that would establish corporate personhood: the claim that corporations were intended to fully enjoy the legal status and protections created for human beings, such as hold property, enter contracts, sue and be sued. However, corporate rights never became equivalent to those of individuals. An example of this issue occurred during the early 1900s, when the Congress and the majority of state legislatures adopted laws that completely excluded corporations from contributing money to candidates for public office. (Winkler, 2007) This decision and other cases as examples of the still limited corporate constitutional rights that are not equivalent to the rights enjoyed by natural persons will be discussed to a broader extent in this paper.TheoriesDeciding on whether a corporation can be seen as a person helps us give insights on what its rights and duties are and how we expect to behave. This framework consists of three stages of theories on how corporations are viewed in the United States. The visions moved from perceiving a corporation as artificial and conditional in the early nineteenth century to perceiving it as a natural entity with similar rights as natural individuals in the twentieth century.The first theory dominated American thinking about corporate personhood in the first half of the nineteenth century. It addresses that the corporation is nothing more than a legal construct. Corporations are “the creation of the legislature, owing its existence to state action, rather than to acts of shareholder- incorporators.” (Blumberg, 1990) The corporation is artificial, fictional, and conditional because it cannot come into being unless and until the law sanctions it. Actions allowed to be taken by corporations are to enter into contracts, to hold property, to sue and be sues, and ultimately to carry on business in the corporate name. During this period corporations required a special act of the state legislature to approve their charters on a case by case basis.  (Friedman, 1985) The legislature approvals of corporate charters were seen as special grants or privileges by the sovereign that were typically granted for enterprises that served a public functions and met specific social needs. The result of this public dissatisfaction was legislative bribery, political favoritism, and monopolistic practices and the artificial person theory therefore diminished over time.This second theory of corporate personhood arose during the last half of the nineteenth century and it emphasizes that corporation could not be formed without the action and agreement of human beings. A corporation is a collection of individuals contracting with each other in organizing the corporation that will be utilized for their mutual benefit. (Hessen, 1979) The theory holds that the corporate person has no existence or identity that is separate and apart from the natural persons in the corporation. “The normative implications of the aggregate paradigm are that corporations should be regarded as the product of private initiative and natural market forces, that corporations reflect forms of private property and private contract, and that corporate law should therefore be viewed as private law, not public law.” (Ripken, 2009) Later on, the large corporation appeared to take on its own identity as functioning organization, separate from the individual shareholders and the aggregate theory became a less satisfactory description of the corporate person.The natural entity theory became the popular way of describing a corporate person at the twentieth century. In this view the corporation’s existence is not only independent of the individual members but also of the state that legally recognizes its form. (Brown, 1905) Even if a corporation’s membership of individuals or the goal of these individuals change over time, its existence and identity remain the same as the corporation is an independent entity. (Blau & Scott, 1962) The corporation is seen as an undeniably real and non-imaginary person and it has the individual rights necessary to challenge state and federal regulations. However, the natural person theory supports two contrasting visions of the corporation: (1) if the corporation is viewed as a real and natural entity, the corporation should be entitled to the same rights and privileges that are afforded to natural persons; and (2) if the corporation is a real person in society, it should have the same sorts of moral and social responsibilities that individuals have. (Nesteruk & Risser, 1993) In the first vision corporations should be viewed as private institutions, rather than public ones, while in the second vision a public law of corporations is supported. (Ripken, 2009)Corporate Personhood: abolish or not?No!Corporate rights protect owners from liability. A legal personality was given to corporations with the purpose of conducting business while shielding individual stockholders from personal liability. Corporations need the protection to avoid facing challenging barriers to market entry and survival, which narrows the scope of competition in the market.Corporate personhood enables multinational corporations. Corporate personhood shields owners from legal responsibility and with fewer restraints, corporations are able to grow and become global. Corporations have a right to defend their interests, as so they can enter into contracts and lawsuits. This right is essential in order for corporations to survive. (Smith, 2009) Corporate interests rarely conflict with individuals interests. This argument goes hand in hand with the aggregate person theory: the members of a corporation are bound together in the corporation. These members are unlikely to get into conflict with the collectivity.Corporate personhood gives businesses a voice. Businesses all over the United States are able to fight back with political donations to support politicians who strongly believe in capitalism and free-market policies.  (Washington, 2010)Yes!Corporations have no moral consciences like human beings. This argument can be reflected on the theory of the artificial person: corporations are just legal creations that exist to maximize profit. A human being has a moral conscience that corporations are missing. The absence of this conscience can have dangerous consequences and therefore corporations should not be given the same rights as human beings. (Clements, 2012)Corporate rights wrongly give individuals double rights. One can argue that a corporation’s interests are already covered by all individuals who hold an interest in a corporation. It would therefore be unnecessary to give constitutional rights to corporations.Corporate personhood diminishes rights of citizens. As corporations are granted constitutional rights it results in corporations setting the agenda in the Congress and courts. Some can argue that this should be done by the people, thus corporate personhood suppresses the voice of citizens and undermines trust in the government. (Stites, 2003) Corporate personhood can generate too much power of corporations, as corporations will vote for legislation that suits only them.Tiers of Scrutiny In order to review whether or not the government violated the Constitution, Justices of the Supreme Court created three tests depending on the law and the Constitutional provision involved: strict scrutiny, intermediate scrutiny, and rational basis. Two factors are considered when judging a law or governmental activity: what is the purpose of the law and how closely is the law related to that purpose. Strict scrutiny means that the government is put to the most difficult test; the usual presumption of constitutionality is reversed and scrutinized laws need to fulfill both the necessity (end) and fit (means) prongs of review to stand. (Greenblatt, 2009) The Court required that a law serves a compelling purpose and needs to be narrowly tailored to achieve its result. (Siegel, 2006) Although the burden of intermediate scrutiny is significantly less than that of strict scrutiny, the government must put forth an important purpose. Also, the government must prove that the law at least bears a substantial relation between that lawand that purpose. (Greenblatt, 2009) The rational basis test is the easiest for the government. The challenging person must proof that the government does not have a legitimate interest in the law, nor must there be a relational link between that interest and the challenged law. (Snider, 2014)Two-Level TheoryThe degree of constitutional scrutiny bared by the regulation will primarily depend on whether the speech it targets is found to be of either high or low value. High-value speech includes press, religious speech and political speech. Content-based regulations of high-value speech will survive constitutional scrutiny only if they can be shown to be narrowly tailored to a compelling governmental purpose, which must be challenged under the strict scrutiny test. In general, this form of expression is entitled to a greater degree of constitutional protection. (Lakier, 2015) Categorized under low value speech are, for example, commercial advertising, libel, obscene and profane speech and fighting words. Regulations that target low-value speech, in contrast, must satisfy a much less demanding standard of review more closely to the rational basis. In the eighteenth- and nineteenth century this form of speech is initially entitled to less or no constitutional protection. However, this allowed the government to remove ideas it dislikes

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