In his account of the importance of the spirit of association, Tocqueville anticipates and corrects the kind of thinking characteristic of modern American progressivism. Many of his own contemporaries, Tocqueville noted, thought they saw a simpler and more direct way to remedy the weakness of individuals under democratic conditions: "They judge that as citizens become weaker and more incapable, it is necessary to render the government more skillful and more active in order that society be able to execute what individuals can no longer do.
In the first place, Tocqueville suggested that no government could "ever be in a state to suffice for the innumerable multitude of small undertakings that American citizens execute every day with the aid of an association.
Americans formed not only "commercial and industrial associations," but also "a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small. In the second place, Tocqueville indicated that even if a government could perform all those functions on behalf of the citizenry, it would end up doing more harm than good. In contrast, while reliance on the spirit of voluntary association may not produce results as quickly as a government program, over time it fosters the kind of social energy and skill that, in the end, accomplishes far more than a centrally administered society.
Finally, of course, Tocqueville identifies the danger of tyranny. By assuming more and more responsibility for society's welfare, a government deadens the citizens' spirit of association, thereby turning the citizens more and more into equally helpless, dissociated individuals.
It makes them, in other words, material for tyranny. In the now-vanished feudal past, the social hierarchy acted as a check on tyranny: The power of nobles and an established church prevented the monarch from having his will in all things.
Lacking such traditional and aristocratic intermediary institutions, democracy needs to develop new ones if it is to avoid the kind of tyranny to which it is prone.
Those new institutions are the voluntary, incorporated associations of civil society. Doubters might think that the preceding discussion needlessly conflates the Tocquevillian spirit of association with the legal form of the corporation.
After all, many of the American associations that Tocqueville praised would not have been formally established as corporations at the time.
Therefore, they would say, granting legal rights to corporations is not necessary to the flourishing of the small associations that Tocqueville thought were essential to a healthy democracy.
This rejoinder is imperfect as an account of Tocqueville's America, and it is inadequate as an account of today's America. Although many associations were not formally incorporated, associations taking the corporate form were still incredibly significant in fostering the spirit of association that Tocqueville observed in 19th-century America.
And the country's development since then has rendered the corporation more, not less, necessary to sustaining that spirit. Nevertheless, one could not accurately contend that the corporate form was therefore of only marginal importance in the development of civil society. Take higher education, for example, which in early America was almost entirely provided by private colleges.
Like the aforementioned Dartmouth College, these institutions needed the corporate form to preserve their ability to hold property and to maintain their principles of organization over a period of many generations. A well-educated foreign visitor like Tocqueville could judge Americans to be an enlightened people in part because many Americans had been instructed by colleges that had been incorporated as legal or artificial persons.
If granting legal recognition to corporations nurtured the spirit of association in Tocqueville's time, it is absolutely indispensable to fostering that same spirit today. One of the well-known benefits of modern incorporation law is the principle of limited liability. The owner of a non-incorporated entity can be held personally liable for the full extent of any damages done in the course of business.
A limited-liability company, by contrast, enables owners to limit their exposure to lawsuit insofar as any recovery is limited to the corporation's assets, not the owner's personal assets.
In other words, an individual carpenter might lose his own personal assets if he harms a customer while working. A carpenter incorporated as a limited-liability company causing the same harm might lose his business assets, such as his tools or business truck, but he won't lose his home. This protection might not have been essential in Tocqueville's time, but it certainly is in ours.
It enables a host of innovative, risk-taking behaviors that grease the wheels of the American economy. In today's complex economy, incorporation is a necessary protection for any association that includes more than a few people and that seeks to operate on a considerable scale and for an indefinite period of time.
Without it, very few people would be willing to take the legal risks, and America's spirit of association would wither. The corporation also contributes something more positive to our capacity for association by actually stimulating the desires that lead people to create new institutions within civil society. The American founders understood that many people are drawn into public service by the desire to win recognition.
Hamilton spoke of the "love of fame" as the "ruling passion of the noblest minds," and observed that it often leads men to "plan and undertake extensive and arduous enterprises for the public benefit. A healthy society, then, must find some way to stimulate the ordinary man's more modest ambitions. The love of political fame may nurture great statesmen, but society also needs to foster the more limited yearning for recognition in the private but prominent citizen.
It is, after all, just such citizens who take the lead in forming the institutions of civil society. Their desire for recognition as public benefactors is the lifeblood of the spirit of association. The corporation is well suited to encourage these wholesome ambitions.
Incorporation creates the possibility that an institution can outlast its founding members and therefore holds out the promise of legacy, a kind of worldly immortality. The legal form of the corporation, by contrast, makes possible the prominence of ordinary private citizens. This can happen on a relatively grand scale, as with Henry Ford or John Harvard; but it can also happen on a more modest scale, as when someone establishes a local business that lasts for generations, or when a local benefactor establishes a local library, museum, or hospital.
And of course even those who do not found but merely work for or manage such corporations can feel that they are part of the history of an institution that is itself a part of the history of the larger community and the nation. Giving legal recognition to corporations, then, is indispensable to a healthy democratic civil society because such recognition democratizes, in a sense, the love of fame and brings its satisfaction, on a limited scale, within the reach of the ordinary citizen.
Would all the good work that has been done in America through corporations have been accomplished without them? Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the 14th Amendment. He then left the Senate to become a lawyer. His Gilded Age law practice was going so swimmingly that Conkling turned down a seat on the Supreme Court not once, but twice. Southern Pacific Rail Road that the 14th Amendment is not limited to natural persons.
We are all of opinion that it does. But the damage was done. Later cases uncritically cited the headnote as if it had been part of the case. Constitution, and has been at the center of many of the most famous Supreme Court decisions, including school desegregation Brown v.
Board of Education , abortion Roe v. Wade and same-sex marriage Obergefell v. Under U. So, what is the 14th Amendment again? Ratified in , it was one of three amendments to the U. Constitution designed to grant full citizenship rights to formerly enslaved people.
While the 13th and 15th Amendments were relatively limited in scope—the first abolished slavery and the second granted voting rights to black men—the 14th Amendment exponentially expanded the protection of civil rights for all Americans.
What is due process and how does it work? The answer can be found in a bizarre—even farcical—series of lawsuits more than years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day. In , after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment.
The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. He remains the last person to turn down a Supreme Court seat after winning confirmation.
More than most lawyers, Conkling was seen by the justices as a peer. It was a trust Conkling would betray.
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