Posted by: terrapraeta | January 31, 2008

An Ye Harm None…

if growing up means being like you
then i don’t want to
be like you
recycled trash
it’s deja vu
i don’t want to grow up
i don’t want to grow up
you’re grown up,
told what to do
your suit can’t hide the truth
you’re a fool
and i refuse
to be like you
i don’t want to grow up

The Descendants, I Don’t Want To Grow Up

Over the last few days, I have had a meandering discussion with Brian over at Reflections on Playboy that ended with a discussion on Libertarian principles and this comment for him:

I’m still not convinced you understand libertarianism. Libertarian journalist Jesse Walker points out that today’s movement against “corporate personhood” resents the fact:

that corporations enjoy rights to free speech [such as the right to advertise] and to protection from unreasonable search and seizure. In other words, they are not complaining about special privileges. They are complaining about ordinary freedoms. One need not believe that a corporation “is” a person to recognize that it is made up of persons, and that those people should not give up their rights when they associate to form a corporation. If the groups known as “unions,” “churches,” and “political parties” are protected by the Bill of Rights, then so are the groups known as “corporations.” Deny this, and you run into a host of practical problems. (If [activists] really think corporations shouldn’t enjoy the same First Amendment freedoms as the rest of us, what do they think should happen to the corporation that publishes The New York Times?)

So I would like to explore this issue a little further. Starting with what it means when I identify myself with Libertarianism.

I have avoided politics for most of my life: I have found never been a strong believe in democracy itself: feeling that it is noble pursuit, but in reality, rarely living up to those ideals. Despite that, I started to pay a lot of attention to world events after September 11, and after the start of the Afghan War. When Bush started making waves about Iraq, I started to read everything I could get my hands on. I spent the winter of 2001-02 telling anyone that would listen that they were lying – or at least spinning – in order to accomplish some political objective or personal crusade. We invaded anyway, and most people told me I was full of it. A year and some later, when I pointed out what I had been saying all along, everyone (this being mostly my family) conveniently forgot that I had said such things and once again I was full of shit. This primed me to become heavily invested in the lead up to the 2004 Presidential Elections.

That’s not really what I want to talk about, but the important part, for me, was that I discovered that most of my ideas about politics and government and people, actually had a name. Various individuals pointed out to me that I sounded like a Libertarian, so I investigated and discovered that in a lot of ways they were right. That provided me with a short hand explanation of my political ideals that I could throw out rather than starting at the beginning with every discussion. At the same time, I discovered that there was one major disagreement between myself and the main party: the issue of Corporations and Corporate Personhood. In time, I discovered further that some libertarians believe as I do while others stand in stark opposition.

For me, any philosophical (political or otherwise) stance is judged primarily for its consistency with other beliefs. Yes, even in philosophy my primary concern is Systemics. As such, I find it impossible to hold Libertarian ideals while also supporting the legal fiction of Corporate personhood. I thought today I would explain why.

The idea of Corporations has been around for most of civilized history, but I am going to focus on American history. Originally, a corporation would be chartered by the state (in the US, by individual states, not the Federal Government), for a specific purpose, a project of limited duration and high (financial) risk. When the state wanted to enable a public project, like a Dam or Railroad, which entailed significant risk to the investors but also significant public benefit, they would offer a corporate charter that would protect the investors from any liability in excess of their initial contribution. This enabled projects to occur that normally would be seen as too risky to undertake. From wikipedia:

In the United States, government chartering began to fall out of vogue in the mid-1800s. Corporate law at the time was focused on protection of the public interest, and not on the interests of corporate shareholders. Corporate charters were closely regulated by the states. Forming a corporation usually required an act of legislature. Investors generally had to be given an equal say in corporate governance, and corporations were required to comply with the purposes expressed in their charters. Many private firms in the 19th century avoided the corporate model for these reasons (link)

Once a project was completed, the corporation was repealed (or it automatically expired) and the individuals involved moved on to their next project or business. It was an efficient tool applied to a specific type of task, and had little to do with private enterprise aside from encouraging private investment.

In time, however, State Governments discovered that they could offer a more general form of Corporate Structure that would provide increased revenues in the form of increased commercial enterprise as well as direct earnings of fees and annual assessments. In order to accomplish this, Corporate law was gradually changed from the original focus of “protection of public interest” to protection of investors and stockholders from anything that might interfere in the accumulation of profit. This culminated in the 1886 Supreme Court Decision that applied the Equal Protection Clause to Corporations, granting them “Personhood” as defined by the Fourteenth Amendment:

Corporations as legal entities have always been able to perform commercial activities, similar to a person acting as a sole proprietor, such as entering into a contract or owning property. Therefore corporations have always had some limited amount of ‘personhood’, which has allowed corporations to conduct business while shielding individual stockholders from personal financial risk (i.e., protecting personal assets which were not invested in the corporation).

The stronger concept of corporate personhood is often traced to the 1886 U.S. Supreme Court case Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394), which provided some greater degree of protection from arbitrary state action. In their decision, the justices gave no explanation of how an amendment about the rights of former slaves should also apply to corporations.

Since then, Corporate Law has evolved to the point that it is mandated that corporate officers do everything in their power to maximize profits to their shareholders. Implicitly, this includes breaking the law, abusing employee rights, damaging the environment and many other morally questionable actions, so long as the cost of these actions is less than the cost of morally preferable activity. Currently, in the US, fines and penalties for illegal corporate actions are almost universally less expensive that their legal counterparts. For example, the cost of cleaning up after a mining operation may run into the millions of dollars, while the penalty for failing to do so runs into the hundreds of thousands. For a CEO, he is legally required to ignore the environmental regulations — and while there may be no legal ramification if he chooses to abide by those regulations, it is certainly the case that he will likely lose his position if he does so.

Now the question arises, what does this have to do with Libertarianism? There are two fundamental types of Libertarianism:

Some libertarians such as Robert Nozick and Murray Rothbard view the rights to life, liberty, and property as natural rights, i.e., worthy of protection as an end in themselves. Their view of natural rights is derived, directly or indirectly, from the writings of Thomas Hobbes and John Locke. Ayn Rand, another powerful influence on libertarianism, despite rejecting the label, also viewed these rights as based on natural law.

Other libertarians such as Milton Friedman, Ludwig von Mises, and Friedrich Hayek justified these rights on pragmatic or consequentialist, as well as moral grounds. They argued that libertarianism was consistent with economic efficiency, and thus the most effective means of promoting or enhancing social welfare. They may also justify some initiation of force in some situations, such as in emergency situations. Some libertarians such as Jan Narveson take the contractarian point of view that rights are a sort of agreement rational people would make before interacting.(link)

At the core of both arguments is the belief that the natural push-pull between individuals each pursuing their own best interest will best facilitate a balanced society. The only role of the government is to prevent, or punish, actions by individuals that infringe on the rights of other individuals. This contains within it a strong sense of personal responsibility for ones own actions in that the only time an ‘authority’ may infringe upon your rights is when you have first failed in your responsibility to society and hurt another. Thus, it is always your own choice to abandon your own liberty by pursuing an action that can invoke governmental or societal response.

So back to Corporations: understanding that ‘corporations’ is not synonymous with business, Libertarianism requires each individual to be responsible for their own actions whereas corporate personhood makes it impossible for individuals to be held responsible for their choices and actions so long as they are acting under the corporate shield and corporate law punishes those that choose responsibility over financial gain. So how can a system based upon responsibility simultaneously create an environment where personal responsibility is completely disabled?

Beyond this, there are a couple of other areas where I am fundamentally at odds with Libertarian principles. The big one: I do not believe in property rights: physical or intellectual. I have seen nothing in the world to support the notion that humans amongst all animals have a right to land ownership. From objects, I believe in ownership by use as you find amongst many primitive and simple horticultural societies. Intellectual property rights, in my opinion, hamper innovation far more that they support it: the Industrial Revolution could not have occurred without the free exchange of ideas and innovations. (While many may think that the Industrial Revolution was a bad idea, it is still the model of dynamic human innovation.)

I do not suggest that Property Rights be revoked, certainly not by governments – such organizations have even less right to property than individuals – and I recognize that modern society is dependent upon the existing structures of property ownership. However, on a philosophical level I can find no support for the initial supposition.

Likewise, as I mentioned above, I have a far different view of ‘self-interest’ as compared to many libertarians. I believe that a functional, sustainable society must incorporate the ‘long view’: such as the Native American concept of ‘to the seventh generation’. For example, I may find it in my best interest right now to eat a couple pounds of chocolate: however, I know that this will not be in the best interest of either my health or my figure. In the same way, building interdependent, vital communities can make it equally obvious to each of us, as individuals, that our future health and well being is dependent upon the well being of the community as a whole.



  1. I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you.

    Matt Hanson

  2. Hey Thanks Matt… hope to hear more from you.


  3. Hey now!

    I was just checking my links on Technorati, and I saw that you linked to me. Glad to see your posting again!

    I hope all is going well!


  4. Nice Posting guys

  5. I would very much love to read a posting on who your presidential candidate is at the current moment and why if you wouldn’t mind posting such information. This is not my typical read but was VERY good. I liked it a lot and certainly will be returning in the future.

  6. Hi Matt, nice posting, good job

  7. Nice Post

  8. “corporate personhood” (CP) was the last thing that prevented me from embracing the libertarian point of view. now that CP is no longer accepted by the libertarians, count me as a supporter.


  9. As the author of Reflections on Playboy, I’ll just point out that my complete side of the story is here (scroll down to the comment exchange between Terrapraeta and me).

  10. You have a good blog, why stop writing?

  11. […] the Creed" of Libertaria.. On Making Unions a Productive Social Force «  naked capitalism An Ye Harm None… « Eros   Philia   Agape BlogLines | BlogLines | Making Blogs Easy at BlogLines Responsibility and charity « Pileus […]

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