The legal status of corporations as fictive persons is well-lampooned in the bumper sticker that reads, “I’ll believe corporations are people when Texas executes one.” As entities with legal status as persons, corporations do not bleed or feel pain except metaphorically, for example, when they hemorrhage cash, perform anemically, or suffer from an economic downturn or shortage of labor. Nevertheless, as fictive persons recognized by law, corporations are building blocks of commerce, government, and religion in the United States, and they have operated as organizing mechanisms in Western society since ancient Roman times. Of course, shielded by legal protection, corporations have done great harm—think of the Royal Africa Company and its role in stimulating the rapid growth of slavery in the Atlantic world in the eighteenth century. Accordingly, in the United States, constitutional amendments and labor and civil rights legislation have been enacted to constrain or outlaw numerous forms of corporate activity deemed unsafe or unfair.
The regulation of corporate activity today is vigorous enough for some Americans to maintain that it goes too far, while others argue that it does not go far enough. As an example of concern about corporate overregulation, in 2012, presidential candidate Mitt Romney promised to lower corporate taxes and diminish the effect of greenhouse gas emissions standards that, in his view, retarded job growth and economic productivity. As an example of the opposite concern that corporate regulation does not go far enough, Senator Elizabeth Warren recently called a bill weakening federal regulation of financial corporations “the worst of government for the rich and powerful.”
Though Americans differ profoundly over the extent to which corporate bodies should be free to govern themselves, these bodies are so essential to the organization of our social world that few people seriously argue that they should not exist, or not enjoy some degree of freedom. Religion has also flourished in the context of this acceptance of corporate membership as basic to the organization of American society; religious organizations are corporate bodies, and many enjoy official status as non-profit, tax-exempt corporate entities. In both religion and commerce, individual freedom coexists with corporate freedom. Moreover, Americans often look to corporate organizations both religious and commercial for their own development as individuals, as well as for social belonging. Much of the freedom Americans enjoy as individuals has evolved in relation to the freedom enjoyed by their corporate organizations, mediated by constraints imposed on those organizations by federal and state governments.
Longstanding custom begins to explain why US corporations enjoy rights as legal persons, including religious freedom. The historical linkage between the rights of corporations and the rights of individuals is a dynamic one, and not merely coincidental. In Western history, individual rights evolved from representative government, which in turn evolved from conceptions of society as a corpus, from conceptions of groups with society as bodies within a body, and from social practices linking membership in corporate entities to representative government and individual liberty. Thus corporate forms of social organization enabled the development of individual rights; individual freedom, as Americans practice and understand it, evolved from laws protecting corporate freedom.
Conceptions of human society as a giant corpus or superhuman body are not unique to Western society, nor have Western conceptions of society as a giant corpus always been Christian—think of the ancient image of the Roman Senate as the stomach of society, necessary to the working of the whole but without virtue otherwise. In medieval Europe, the trope of Christ’s superhuman body provided a conceptual base for social peace and civil law (to the extent they existed), as well as for canon laws governing many forms of individual and group behavior. The Apostle Paul’s image of Christians united as one body through the spirit of charity provided the scriptural base for a concept of peace invoked by religious and civil authorities alike.
While some individuals received privileges through special decree, more often individuals acquired rights as a result of membership in guilds, town governments, and religious and civic organizations of various kinds. All of these entities were corporate-type associations influenced by Christian theory and practice. To a remarkable extent, these associations operated as particular expressions of the body of Christ subject to canon law, common law, and feudal authority, with presumed commitment to the universal body of Christ stretching across time and space. Christians practiced this multi-leveled identification with the body of Christ through public expressions of corporate belonging, penitential discipline, and charitable donation. Through these practices, churches expanded their role as local welfare institutions in medieval Europe, pooling resources from wealthy donors who wanted their sins forgiven — and who, in many cases, wanted to preserve this corporate economy so that benefits they still derived from church lands might be preserved for family offspring.
In the development of British common law, from which much of American law descends, a strong system of parish governance supplemented these forms of corporate Christian organization that were common throughout Europe. English parishes operated with considerable autonomy as religious and governmental corporations, with local churchwardens and vestrymen, and local gentry who represented crown and parliament at home. Parish self-governance, while not absolute, was jealously guarded, as were the rights of freemen within parish corporations.
As outgrowths of British mercantilism in the seventeenth century, American colonies were founded as commercial plantations with corporate-type governance and religious discipline, though differing from one another in the degree of autonomy each colony exercised, and in the form its governance took. As participants in the British Empire across the Atlantic, more than a few colonists exploited their presumed rights of self-government as British citizens. Indeed, American independence from Britain derived from the Whiggish belief that Britain had violated the privileges of self-government that British citizens had a right to enjoy. The liberty that American patriots claimed for themselves and their governments was the long-brewing political analog to the “liberty in Christ” proclaimed by the Apostle Paul, as it developed in the context of British imperialism, British and American identification with a mythical Israel, and robust respect for corporate enterprise. In other words, concepts of liberty rooted in medieval organization and biblical authority evolved in the American revolutionary era in relation to a constellation of forces – forces that included Britain’s perceived violation of American rights to self-government, rhetoric linking the freedom of the American people to the Israelites’ freedom from bondage in Egypt, and corporate strategies of self-governance in various stages of development in American towns, churches, and commercial enterprise.
Corporations of various kinds proliferated after American independence, stimulated by freedom from the draconian economic policies Britain had imposed on her American colonies and by the deregulation of religion in the United States through disestablishment. While slave labor and seizure of Native American lands fueled a rapidly expanding economy, commercial and religious organizations proliferated as state and federal governments endorsed corporate freedom, with considerable enthusiasm, as a natural form of human organization. Holistic claims about America as a Christian nation accompanied these developments, even as civil war broke out over whether or not slavery was compatible with Christianity and should be legally protected. Intervention by the federal government and the military defeat of secessionist slave states settled the legal question of slavery, though de facto servitude remained everywhere.
In the twentieth century, religious organizations touting labor rights and social progress pressured government to impose constraints on corporate behavior, with many blacks and women working through grassroots organizations for legal remedies to curb corporate abuse. With full employment and enormous productivity during World War II, the United States emerged with a military industrial complex more formidable than anything the world had ever seen, with booming growth in religious organizations and full-throated celebrations of American freedom.
While Americans today disagree about whether individual freedom in the United States is jeopardized or too constrained, tight relationships between individual freedom and corporate organization persist, refereed by law and government. These relationships are reciprocal, and not simply a one-way matter of individuals asserting rights over or against corporations. Corporations also provide pathways of individuation and means for individuals to organize. For better or worse, American society has evolved through organizational strategies linking individual initiative to corporate structures.
With this big picture in mind, it is easy to see why corporations have freedom in the United States. Whether we label this freedom “religious” or “political” is almost beside the point. Unless corporations have some significant degree of freedom, individuals operating through corporate organizations might not have it, either. There are certainly other ways of conceiving or seeking human well-being, and America’s corporate way may not last or prove as effective as other ways. It does provide a kind of practical ground that Americans accept even as we aggressively dispute the balance between corporate and individual freedom, and the limits of government oversight.