The Democratic Anatomy of Corporate Constitutional Rights

• In Event: Poster Session: Constitutional Law and Jurisprudence; Federalism and Intergovernmental Relations & Science, Technology and Environmental Politics
  In Poster Session: Poster Session: Constitutional Law and Jurisprudence

Abstract

Recent political theory ascribes corporate rights using ontological analogies. Pointing out corporations’ internal governing hierarchies, Landemore & Ferreras (2016) explicitly analogize the firm to the state, while Ciepley (2013) dubs it a “franchise government” and Anderson (2017) calls attention to its state-like dominating characteristics. Meanwhile, literature addressing workplace democracy (e.g., Pateman 1970) would hold the corporation to the same democratic desiderata demanded of the state in order to vindicate teleological conceptions of human autonomy, transition away from capitalism, and protect workers from alienation. (Greenberg, 1986; Rothschild & Whitt, 1986) None, however, confront head-on the rights of those who control contemporary corporations. As Singer (2018) points out, because corporations help fulfill private economic freedoms, analogies equating them to the state must be treated gingerly. Indeed, political theory addressing collective rights (e.g., Benhabib, 2002; Kukathas, 2007; Levy, 2014; Margalit & Raz, 1990; Muniz-Fraticelli, 2014) suggests that corporations, as collectivities of individual rights-holders, have a right to claim rights against the state. Nevertheless, ascribing liberal group rights to business corporations facilitates intersubjective domination that theories of distributive justice can only imperfectly address. My paper intervenes in each of these debates by changing the level of analysis. Rather than classifying the corporation as state or collective citizen and analyzing them accordingly, it answers the questions of corporate rights and workplace democracy by returning to the question of legitimate lawmaking. In constitutional liberal democracies, legal rights are not edifices that protect natural rights as “trumps,” nor the positivistic outcome of the volonté générale, but instead the political instantiation of the principle of equal human worth. Therefore, in the context of group rights like corporate rights, legal rights must vindicate the principle of equal individual freedom. Given market imperfections, this principle cannot be realized unless corporate constituents first have a voice in corporate governance. This research therefore (1) presents an original justification for workplace democracy while (2) solving the problem of corporate ontological classification by finding in law the connection between the state and individual. Furthermore, its focus on law suggests a new approach for scholarship that increasingly engages the normative connections between state and market (E.g., Eich 2018; Tooze 2018; Fraser 2015; Arrighi 1994)

Author

• Katharine Jackson, University of Virginia