Legal Commentary

Corporate Rights and Property Rights are Human Rights: Why it?s a Mistake to Conflate a Right with the Means Used to Exercise it

By Ilya Somin

In my last post, I explained why it?s a mistake to deny free speech rights to people organized as corporations on the grounds that corporations aren?t ?real people.? It?s true, of course, that a corporation is not a person. But the people who own and operate it are. ?Corporate speech? is really just speech by people using the corporate form.

The mistake here is one we see in other contexts. Critics often denigrate rights by conflating them with the means used to exercise them. For example, a standard rhetorical attack on property rights is the claim that property rights aren?t really ?human rights.? Property has no rights, it is said. Its true of course that property as such is not entitled to any rights. However, property rights actually belong to the people who own the property, not the physical objects themselves. As the Supreme Court explained in its 1972 decision in Lynch v. Household Financial Corporation:

[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ?personal? right.... In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property.

When I criticize decisions like Kelo v. City of New London, the objection is not that government has violated the rights of land or buildings, but those of the people who own them.

This rhetorical tactic is most often used by liberals and leftists to criticize rights advocated by conservatives and libertarians. However, it?s important to understand that the same ploy can easily be turned on rights favored by the political left. Consider, for instance, the right to use contraceptives upheld by the Supreme Court in Griswold v. Connecticut. Contraceptives, after all, have no rights. They are inanimate physical objects, like any other property. Under the Connecticut law banning their use, women were still free to avoid pregnancy (e.g. ? by abstaining from sex, or by using the rhythm method). They just couldn?t use this particular type of property to do it. It?s easy to see that any such critique of Griswold would be specious. After all, contraceptives are just a means that women use to exercise their rights to reproductive choice, albeit a particularly effective one.

The same point applies to corporate speech and property rights. When corporations ?speak,? they are just a means that individuals use to exercise their rights of free speech ? often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.

Abjuring this common rhetorical tactic doesn?t by itself resolve longstanding debates over the scope and content of human rights. You can still attack property rights or corporate free speech rights on other grounds. But it does help focus the discussion on real issues and reduce rhetorical distractions.

Full post as published by The Volokh Conspiracy on January 21, 2010 (boomark / email).