In 1648, the Peace of Westphalia brought an end to decades of widespread warfare between Catholics and Protestants in continental Europe. In a pair of treaties involving 109 parties, a system of International relations was born based on the idea that rulers were allowed to determine the religion of their own state, but that their citizens were not forced to convert to that religion. Out of that flowed the general idea that is the foundation of international law: a sovereign is permitted to determine the order and nature of what happens within their own borders, without undue influence from another sovereign. The set of principles that flowed out of this single idea is referred to as the Westphalian System in the parlance of modern political science.
The idea that Nation-states are sovereign on the territory that they control seems like a fine foundation for an International order. But when we fast-forward several hundred years and examine the impact of new technological and sociological developments we see there are problems emerging from democracy, republics, capitalism, and corporations that challenge the idea of territorial sovereignty and the ideas that flow out of it concerning human and civil rights when they come into conflict with national or sub-national rights.
The nation-state envisioned by the Westphalian System is a monarchy. Furthermore it is a divine-right monarchy, as opposed to a parliamentary or constitutional monarchy. The State is the Crown. And therefore the territory is Royal. And therefore the people who live there are subjects. And subject is just a fancy way of saying royal slave. The Westphalian System therefore is a system where people are slaves to kings based on which dirt they are tethered to by birth or blood.
It gets messy when you replace the king with a democracy. The American Experiment of a Nation-state governed not by a monarch but a government “of the people, by the people, and for the people” is, in the construction of the Westphalian System, a paradox. Is the citizen of a democratic republic a monarch or a subject? If they are a subject, does democracy mean anything at all on the international stage? If they are a monarch, how can any peerage between nation-states exist? Since 1784 and the end of the American Revolution the world has studiously ignored these questions, pretending that the Federal Government of a democracy is a monarch, leaving the status of citizens of that democracy, on the international stage, that of royal slaves.
Which, while lazy, is at least functional, after a fashion. But when we began to equate corporations with people under the law, we put this question of monarch or subject back in play. A corporation is not a person, rather it is a collection of people banding together to diffuse risk. However, this diffusion is neither equitable — all shareholders are not equal, because there is no limit on how many shares an individual may possess — nor is the banding limited to humans — corporations can be shareholders in themselves and other corporations. And as corporations grew, they became multinational, and thus subjects of many monarchs. This makes them unruly. Unruly subjects are bad subjects, and bad subjects are a threat to the monarch. Yet we continue to pretend that corporations are subjects and not monarchs, when, for all intents and purposes they are naturally monarchical — not kings perhaps, but certainly princes.
This creates a situation in the United States where the Federal Government is the de facto Nation-state in the eyes of other Nation-states, the States and the Tribes are sub-states in the eyes of the Federal government, corporations are sub-states masquerading as subjects, and the people of the republic are the Nation-state masquerading as subjects.
When it comes to applying the strong individual rights found in the U.S. Constitution to corporations, this mass-delusion reveals itself as structurally unsound. If I treat a corporation like a person, endowing all the individual rights in the Constitution to it, I end up with a “legal person” that is richer than a small country, that owns or controls territory around the world, and that is driven by the imperative to seek its own growth and gain above all other concerns but also one that, due to its true nature as a sub-state, cannot be killed or incarcerated, cannot be conscripted into exclusive service of any nation, cannot be held to account without holding to account any and all Nation-states that might harbor it and condone it’s actions. It is, in effect and in manner, a super-man. And this super-man is not a man of principles or loyalties, rather it is a legion of capital, seeing the world through a ledger, being tugged and pulled and prodded by its shareholders to produce profit at all costs. It is, in other words, a super-man driven purely by impulse and desire with only that restraint that is useful to achieve its own goals, lacking empathy and morality and sentimentality. It is, in other words, a psychopathic super-man.
And so it is structurally predestined to be because a corporation is a sub-state masquerading as a person. It is this creature loose among us that seeks protections under the First Amendment to express itself without restraint. Government speech is held in check by political consequences that corporations never face, intangible property owned by the State is normally in the public domain, and States and Tribes have strong, structural limits on raising armies and keeping secrets for good reason. How long until this psychopathic super-man also seeks to assert its right to bear arms when raising a private army or its right to protection from self-incrimination when not complying with oversight or investigation?