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Writing About Nonpersons

Professor Garrett’s article on the constitutional standing of corporations employs the heuristic of “effective” litigation to unpack the lack of symmetry between organizations and individuals when personal rights are concerned. Hobby Lobby marks an apotheosis of the recent doctrinal push for corporate persons to become simply persons. The corporate structure has now become a vehicle for associations to actualize their broader instrumental ambitions. Justice Alito, writing for the majority, suggests 501(c)(3) organizations might choose to incorporate so as to make political statements. His opinion recognizes an identity of spiritual orientation between the plaintiff company’s management cadre and its 13,000 member workforce. Gone is the Kierkegaardian archetype of the existential pilgrim, or the Joycean expression of the epiphany. The deeply interior feeling of religious expression has given way to a judicial calculus crafted in aggregate impersonal language, of a tendency to a mean statistic. So long as an association can articulate an injury that is “germane to the organization’s purpose” (an asymptotic test) then it may stand in court. But should this analytic extend to corporations? In Hobby Lobby, the winning brief reduces the “independent” choices of less evangelical employees to outlier data points. This writing away of company employees should not have legs. However, animals often do have legs—so a related question, who should stand in court for animals? Themselves?

Garrett correctly derides this group–individual equation for personal constitutional rights as bad logic and bad policy. I also agree with Professor Garrett’s instinct to divorce the magic language of personhood from standing, and to instead employ a consequentialist inquiry where standing flows from the constitutional right, rather than the legal status of the concerned party. However, I have two responses to Professor Garrett. What does “effective litigation” mean? And, are there prudential concerns that should quiet his call for constitutional rules of recognition to be “drawn broadly and evenhandedly” to build doctrinal coherence? I argue in this Response that the legal writing analytic of core theory provides a proxy for this heuristic of effective litigation, but that recognition of the analogue debate of “animals as 14th Amendment persons” might destroy the already fractured architecture of standing doctrine.