RIP Scalia

[raventhief]

This is off-topic, but I was thinking today about the Corporations=people thing, and I wonder if this bolsters the delusions of freemen on the land types, who have this whole “John Doe” is a legal fiction, while “john of the family doe” is the actual person. After all, if a corporation (which is an entity that is not a a human but is treated as such in the eyes of the law, ) is a person, does that mean that a “person” may be a legal fiction itself? That is, if corporations are legally people, does that mean that some people are actually corporations? Is the living, breathing human being different in the eyes of the law than a “person,” which may or not be a corporation? Are there rights that actual human beings have that “people” (including corporate entities) don’t have? Well, yes, the right to vote has been mentioned, as well as being subject to the death penalty. ETA: Even trying to comprehend the FOTL type feels like I am falling down the rabbit hole.

If a felon starts a corporation, can he use the corporation to purchase guns he is legally not allowed to have? After all, the corporate person is the one who purchased the guns, not the felon. If my husband and I start a company, and we are different religions, what religion is the corporation? If a person is hiring a nanny, and doesn’t want to hire a Muslim or a black person, based solely on that, is that allowed legally? How about a corporation doing the same in hiring? I was interviewed by a company once that made it clear that they wanted to hire a Christian, and even specified the church everyone in the company attended. The company was a disaster recovery company, not a religious based organization.

[Trinopus]

@raventhief

. . . If a felon starts a corporation, can he use the corporation to purchase guns he is legally not allowed to have? After all, the corporate person is the one who purchased the guns, not the felon. . . .

There is a concept called “piercing the corporate barrier.” Being incorporated only protects you up to a certain degree, and committing felonies is beyond that degree of protection.

If a financial corporation makes a bad investment and goes bankrupt, the individuals who operate the bank are protected against losing their own houses and retirement accounts. But if the same financial corporation committed large-scale securities fraud, then the individuals aren’t protected, and can be sued for their personal property (and also prosecuted and put in jail.)

The corporate shield didn’t help Bernie Madoff.

[raventhief]

@Trinopus

There is a concept called “piercing the corporate barrier.” Being incorporated only protects you up to a certain degree, and committing felonies is beyond that degree of protection.

If a financial corporation makes a bad investment and goes bankrupt, the individuals who operate the bank are protected against losing their own houses and retirement accounts. But if the same financial corporation committed large-scale securities fraud, then the individuals aren’t protected, and can be sued for their personal property (and also prosecuted and put in jail.)

The corporate shield didn’t help Bernie Madoff.

See, I always thought of incorporating as a legal shield, but “corporations have free speech rights” and “corporations can exercise religion” make it sound much less like a shield, and more like a legal person.

“Corporations are people too, my friend!”

[Bricker]

@raventhief

That is, if corporations are legally people, does that mean that some people are actually corporations?

Yes.

A “natural person,” refers to a living, breathing person. “A person,” can include a corporation.

Is the living, breathing human being different in the eyes of the law than a “person,” which may or not be a corporation?

Yes.

Are there rights that actual human beings have that “people” (including corporate entities) don’t have? Well, yes, the right to vote has been mentioned, as well as being subject to the death penalty. ETA: Even trying to comprehend the FOTL type feels like I am falling down the rabbit hole.

Yes. The Fifth Amendment right against self-incrimination comes to mind. US v. White.

If a felon starts a corporation, can he use the corporation to purchase guns he is legally not allowed to have? After all, the corporate person is the one who purchased the guns, not the felon.

Not really. There is a specific legal person called a “gun trust,” which is primarily intended to allow the purchase and transfer of National Firearms Act items like fully automatic weapons and silencers. A felon could, I suppose, create such a trust and the trust could legally purchase a firearm. However, the law prohibits the felon from possessing a firearm, not merely purchasing one, and “possession,” is both actual and constructive. So the law still prohibits a felon from exercising dominion and control over a firearm, even if a trust owns it.

If my husband and I start a company, and we are different religions, what religion is the corporation?

Who cares?

By that I mean that what is protected is the exercise of religion. Does the corporation take some action that exercises religion? Are you asking what happens if you and your husband start a corporation and then disagree over what action it should take to exercise its religion?

The answer is: the same thing that happens if you and your husband start a corporation to bake confections and then disagree about whether it should produce cupcakes or cannoli treats. The corporate form includes by-laws and a method for resolution under state law for shareholder fights.

If a person is hiring a nanny, and doesn’t want to hire a Muslim or a black person, based solely on that, is that allowed legally?

So far as I am aware, at least at a federal level, the answer is yes. I welcome correction on this point, as it’s not my area of expertise, but as far as I can recall most federal discrimination laws require an employer with a minimum of five employees.

I cannot give a blanket answer for every state and local ordinance that might exist. I am not aware of any legal bar against this scenario, though. And notice it has to do with the number of employees you have, not on your status as a natural person.

How about a corporation doing the same in hiring? I was interviewed by a company once that made it clear that they wanted to hire a Christian, and even specified the church everyone in the company attended. The company was a disaster recovery company, not a religious based organization.

In general, that would not be legal. There are exceptions for religious organization’s hiring ministerial personnel, but from your description, unless the method of recovering from disaster was prayer-based, the corporation would not be able to restrict hires to a particular faith.

[raventhief]

@Bricker

Yes. The Fifth Amendment right against self-incrimination comes to mind. US v. White.

Thanks Bricker. So there is no way, on plain reading of the Constitution, to know if a "person " is a natural person or a corporation without going through the case law, right? The 5th only refers to people, with no differentiation of the type of people. Yet it doesn’t apply to corporations and other similarly worded amendments do.

[Bricker]

@raventhief

Thanks Bricker. So there is no way, on plain reading of the Constitution, to know if a "person " is a natural person or a corporation without going through the case law, right? The 5th only refers to people, with no differentiation of the type of people. Yet it doesn’t apply to corporations and other similarly worded amendments do.

Er… Yes.

I say “Errrr…” because there are some general guidelines that are applicable, but I agree those guidelines in turn are not spelled out in the Constitution.

The guidelines include the question: can it fairly be said that a particular type of organization has a character that is so wide in membership and activities that it is basically impersonal, or is it fairly described as embodying a single natural person… the idea being that the Fifth Amendment’s historical reach was an individual protection of a natural person.

[elucidator]

Never gave a lot of thought to the religious convictions of corporations like Lockheed, General Dynamics and Halliburton. Their foreign policy views, however, have been…troublesome.

[Really_Not_All_That_Bright]

@raventhief

If a felon starts a corporation, can he use the corporation to purchase guns he is legally not allowed to have?

When you the person and you the corporation become so intertwined that the corporation has no real existence except as a legal fiction, courts can “pierce the corporate veil” to do lots of things. Trinopus alluded to one, which is holding directors, officers or even shareholders criminally culpable for actions of the corporation. Seizing assets is another; if you use your corporation as a tax shelter and commingle corporate and personal funds (say, if Joe pays his personal phone bill, rent and mortgage out of Shyster Joe’s Aluminum Siding Corporation’s money) you may be personally liable for the corporation’s debts.

To me, that’s the problem with Bricker’s argument about the corporation exercising religion: if it is so closely tied to its shareholders that their religion is its religion, then the corporation is a fiction in the same way as Shyster Joe’s Aluminum Siding Corporation.

Fictional corporation = no corporate barrier = personal liability for shareholders.

[Bricker]

@Really_Not_All_That_Bright

To me, that’s the problem with Bricker’s argument about the corporation exercising religion: if it is so closely tied to its shareholders that their religion is its religion, then the corporation is a fiction in the same way as Shyster Joe’s Aluminum Siding Corporation.

Fictional corporation = no corporate barrier = personal liability for shareholders.

Does that problem also arise in the free speech context?

[Really_Not_All_That_Bright]

Not really, because religious freedom jurisprudence somewhat uniquely requires sincere religious belief. There is no analogous requirement in the speech context; speech is protected whether it is sincere, insincere, or even directly opposed to the speaker’s true beliefs.

[Bricker]

@Really_Not_All_That_Bright

Not really, because religious freedom jurisprudence somewhat uniquely requires sincere religious belief. There is no analogous requirement in the speech context; speech is protected whether it is sincere, insincere, or even directly opposed to the speaker’s true beliefs.

While I grant the possibility of RFRA claims resting on insincere beliefs, the seminal case doesn’t suffer that flaw – in other words, so far as I am aware, the sincerity of the Hobby Lobby owners’ belief was never genuinely doubted.

So your concern rests on sincerity alone? How does that tie into the “so closely related, it’s fiction” comment above? How would that play when discussing the corporation The Roman Catholic Diocese of Arlington?

[Really_Not_All_That_Bright]

@Bricker

So your concern rests on sincerity alone? How does that tie into the “so closely related, it’s fiction” comment above? How would that play when discussing the corporation The Roman Catholic Diocese of Arlington?

My concern in the context of this argument rests on sincerity, yes. The RCDA might well have the same problem. And yes, that might well put all religious/charitable corporations at risk. But that’s not my problem; this is the sort of non-result-based analysis that is supposed to have been Scalia’s hallmark.

[Bricker]

@Really_Not_All_That_Bright

My concern in the context of this argument rests on sincerity, yes. The RCDA might well have the same problem. And yes, that might well put all religious/charitable corporations at risk. But that’s not my problem; this is the sort of non-result-based analysis that is supposed to have been Scalia’s hallmark.

Ok, so let’s tackle sincerity. You agree that the RFRA incorporated the same sincerity tests and deference that was in place for pre-Employment Division?

[Really_Not_All_That_Bright]

I don’t see any reason to believe that it didn’t.

[Bricker]

@Really_Not_All_That_Bright

I don’t see any reason to believe that it didn’t.

In the specific case of Hobby Lobby, do you have any reason to question the sincerity of the religious beliefs of the underlying natural persons involved?

[Really_Not_All_That_Bright]

Not at all. I think you may have missed the point though.

[Hamlet]

@Bricker

In the specific case of Hobby Lobby, do you have any reason to question the sincerity of the religious beliefs of the underlying natural persons involved?

You mean like, up until they decided to attack the ACA, their plan covered Plan B and Ella? Or how they invested money into companies that create the very medication they’re now objecting to? Stuff like that?

[Really_Not_All_That_Bright]

Even if Hobby Lobby itself was not a perfect plaintiff, we can presumably all agree that there was such a company somewhere out there so I don’t think (at least for discussions of the legal principles involved) sincerity really needs to be debated.

[Hamlet]

@Really_Not_All_That_Bright

Even if Hobby Lobby itself was not a perfect plaintiff, we can presumably all agree that there was such a company somewhere out there so I don’t think (at least for discussions of the legal principles involved) sincerity really needs to be debated.

But that’s the can of worms that gets opened when you pretend for-profit corporations can have their religious beliefs violated.

I mean, you’re right that no matter the hypocrisy or the oddly convenientness of their religious belief, or the tenuousness of claiming signing a form saying you object to a law because of your religious beliefs is itself a violation of your religious belief, courts are likely going to defer to the stated claims of the plaintiffs.

[Measure_for_Measure]

@elucidator

As a polite legal fiction, intended to simplify certain legal procedures. As a legal dogma, a leap of corporate faith, that flies in the face of ordinary common sense? Maybe not so much. But I will cede your point, indeed, it stands as legal and Constitutional. Being crazier than a duck on acid has no bearing on the matter.

Yes it does. 1 U.S. Code § 1: “the words “insane” and “insane person” shall include every idiot, insane person, and person non compos mentis;”
Carry on.

In other news, Scalia apparently passed on while among fellow members of an Austrian Secret Society that dates from the 1600s: “the International Order of St. Hubertus.” (Not to be confused with the International Order of St. Hubris, which meets just down the road.)

Cite: https://www.washingtonpost.com/world/national-security/justice-scalia-spent-his-last-hours-with-members-of-this-secretive-society-of-elite-hunters/2016/02/24/1d77af38-db20-11e5-891a-4ed04f4213e8_story.html