A Discussion Between Ian Trout and UCLA Law Professor Adam Winkler
Adam Winkler: It’s a real honor to be here with you Ian and to see these works of art. It’s not every day you get an e-mail that a book you’ve written has inspired anyone to do anything other than throw it against the wall. Especially that book, which gets a lot of people angry.
My book We the Corporations: How American Businesses Won Their Civil Rights was inspired by a controversial Supreme Court decision in 2010, the Citizens United case. Some of Ian’s works make specific reference to Citizens United. In that case, the Supreme Court held that corporations have the same rights as people under the First Amendment, and that corporations could spend unlimited amounts of money on election ads. A couple years after that, the Supreme Court followed that decision with a decision on the Hobby Lobby case, which said a chain of craft stores had religious liberty and were entitled to an exemption from a law requiring them to cover birth control in employee health plans. And those questions, those cases, sparked a lot of controversy.
Citizens United led to protests on Wall Street and elsewhere, and I wanted to provide a history, a backstory of how we got to this point, of how corporations have the same rights as people. My book is not a polemic, it's not a screed against corporations and against corporate power. It's a history book designed to show that like other people who were left out of the Constitution, people whose stories we often tell like the civil rights movement about African Americans and how they were left out of the original promise of the Constitution and how they fought to gain equal rights. And we talk about women and women’s rights and of course women were left out of that promise of we the people, and the story of their struggle for inclusion is one of the most profound and important ones when we think about the story of America. And I wanted to look at how corporations, although they don't march in the streets saying “corporations are people,” nonetheless, how did they go about winning constitutional protections? And it turns out that the history really goes back very far. I show that some of the earliest Supreme Court cases in the 1800s were cases awarding corporations constitutional protections.
So that was sort of the story of how I was inspired to write the book, and uncover that surprising history. And when I received the email asking if I would be interested in hearing about this art and seeing this art, and maybe doing a talk about the art that Ian has produced here, I was pretty surprised not only that some artist would find some inspiration in my book, but when I looked it up on the web the description begins unlike any description of an art exhibit I've ever been to because it starts, “In a headnote to an 1886 Supreme Court ruling, Chief Justice Morrison Waite expressed”— This doesn't happen in ordinary art. So once I saw that I said, you know I have to meet with Ian, I have to come see the art. There's a connection there that I want to explore.
Ian Trout: Thank you so much for doing this. I’ll begin by saying a little about the show and how Adam’s book fits into it.I started thinking about this show knowing I wanted to make shaped paintings. I had made shaped works in the past, but those were more exclusively related to modernism and to thinking of that as a trope— which is part of what these paintings do as well but I wanted to complicate things a bit more, both visually and conceptually. My past work had considered painting and its relationship to signs and advertising, so I first considered the possibility of just making corporate logos into paintings. I was considering what a painting might have to say about corporations’ use of aesthetics and eventually corporate personhood came to mind as this very abstract concept and that idea presented the possibility of a new visual element— the body parts. That seemed like it could make an interesting series of paintings.
I wanted to better understand what corporate power in America looks like and I thought reading a history of it might expand what the show would be. I had listened to Adam do a couple of interviews where he discussed his book so I started there. The work in the show is quite blunt in its use of the concept— its essentially two visual cues coming out of each word— “corporate” and “person”. But learning the history of it really solidified the show for me. It changed my approach to the subject and that is often what interests me most about making work, that deep dive into something.So with the show really coming out of language, out of that term “corporate personhood”, could you tell us where that concept comes from and how it functions?
AW: Yeah, perfect. So, it is an interesting idea, this idea of corporate personhood. It's obviously a metaphor, not designed to be taken seriously in the literal sense. When the Supreme Court says that corporations are people, you know these are Supreme Court justices, these are very smart people, they're not making a category error. That idea of “personhood” is a metaphor that the law uses to recognize an entity that has its own rights and has its own responsibilities.
In some ways that’s a disturbing idea, but in some ways that's a very natural idea in the sense that if you have a business, say it’s Starbucks: someone slips and falls at the Starbucks. Who can they sue? They can't sue Howard Schultz. He didn't really have anything to do with it. You can't sue the individual investors, some of whom may have just bought the shares that morning and sold them that afternoon. The idea is that you can still sue that entity: Starbucks the corporation. So that idea of personhood was in part designed to create duties for corporations, to find an entity that you can sue.
There’s the BP logo behind us. BP of course was responsible for one of the largest environmental disasters with the Gulf oil spill. Who can you sue to get compensation if you were affected by that? You would sue that corporate entity. So corporate personhood has a role to play traditionally as a metaphor so that ordinary people can hold a corporation responsible.
What's happened over the years is that corporate personhood has moved beyond just a tool to separate the entity from the people within it. It has become a basis for extending fundamental rights to corporations. I think when we think of corporate personhood as a way of holding corporations liable, it doesn't seem that problematic to us. I consider the corporation a person for those purposes, so I can sue them, force them to come in to court, and if they're responsible for something they can pay me. But it becomes more controversial when that corporate personhood then has the fundamental rights of people, like freedom of speech, or religious liberty, or the ability to influence our elections. That's when the metaphor seems to go too far and becomes more problematic.
IT: Right, that’s really where it starts to diverge from a reasonable function, when the court begins reading those individual rights for companies into the Constitution.
AW: I think so. And I think that's what my book really shows is that that happens a long time ago. Corporate personhood has become a big controversial issue over the last decade with Citizens United, but the effort of corporations to seek an ever greater share of our constitutional protections has been going on since the earliest days of America, since the early 1800s.
But I'm curious Ian, what about that idea of corporate personhood inspired you, inspired these paintings?
IT: Well, I’ve been using abstract painting as a way to think about abstraction as the ultimate form of subjectivity, this object for pure interpretation. You know you have Jackson Pollock and the internal arena and whatnot so it’s really this romantic notion in art. But I also see this hyper-individualism, especially in this country; it’s kind of elemental to the U.S. And a lot of my work is using that subjectivity in art as an analog for how it gets employed elsewhere in society— especially its effects on politics which obviously have a great influence on our lives. And corporate personhood was really a perfect example of how that subjectivity can be used by people with power to fundamentally alter our world. You know, the act of creation doesn’t always create something benign or beneficial.
The term corporate personhood also conjured abstract elements—- the corporate logos are just shapes and they relate to modernism in a way and then the body is represented with “personhood”— and those two elements, the figure and the trope of an “abstract painting” have been in my work in some form or another for some time.
So the show was really inspired by that literal representation of the term and especially "personhood”, because that is really the concept the court is stretching beyond belief.
AW: Can you talk a little bit about the process you go through to make a painting like this? From the original idea, the inspiration of corporate personhood? How did we get from there to the paintings being here in this space?
IT: My process is really a curatorial one. I spend most of my time collecting images and thinking about how they can go together once they become paintings. I’m thinking about how they work on their own and as a group. I’m considering what the images mean culturally and what kind of meaning they can have as paintings. Because painting is the box I sort of force everything into for better or for worse. It’s a medium specific approach.
And it’s very circuitous. I cast a wide net by gathering images and reading around these topics and slowly, through editing, I hone in on what the paintings are going to be. So I started with a lot of company logos and I had all the stock medical graphics, and I was thinking about how they all looked, how they related to art history and how the companies themselves represented this problem of corporate influence.
The rest of the process is very traditional and formal. I moved from the computer where I made a lot of studies for the work, to the studio where I was working out scale through drawings and and large mockups. Eventually I am painting these things and dealing with those decisions, the most painterly ones, like color. So it’s really a bifurcated process of conceptualizing, gathering and researching then being in the studio making the objects.
AW: How do you feel that corporate power and influence in the arts has shaped your creativity and your opportunities as an artist?
IT: Corporate power? I mean, I’m not totally sure. I think that we live in a corporate world, a world that is largely run by corporations. And we are kind of knowingly or unknowingly influenced by that fact constantly. I mean there are all of these scandals involving psychological manipulation through social media or rising depression rates from being on our phones too much—just the notion of having images flooding us constantly and what that does to our brains. So I think of it more in that way, that we are immersed in a corporate reality, a consumer reality and it affects our politics, our health and our jobs. I kind of take it as a given and a lot of the work that I make is trying to—I guess to kind of embrace it as reality, to find a way of acknowledging it and to find a way of making something that’s interesting and is possibly critical of that reality.
AW: So you view the pieces as critical of the notion of corporate personhood?
IT: I don't know that the pieces themselves are critical— I have a very compartmentalized way of approaching the work. But my impulse to use this subject to make paintings is coming from a critical place. I’m not celebrating it, and I think some work does that, some work does celebrate the corporate world. So I am trying to fold that critical impulse into the painting— into something ambiguous, because so much art is ambiguous and I’m also being critical of that. So the criticism is just my gesture, it’s my interpretation of what these images could mean.
I guess the critical aspect is more direct in the titles. Each title names the corporate logo and the body parts and then there’s a list of campaign contributions that the corporation contributed in last year’s elections. So the titles really present my critique by showing the amount of money in politics coming from corporations. I’m not sure how many people understood what was going on with the titles but that information had a presence in the show. I like different aspects of the exhibition and the art works to pull their own weight, I don’t think everything has to be revealed by the object and I like layering this very concrete information onto this abstract object. It forces the object to have a specific meaning.
AW: Yeah, that’s fascinating. You know I think about this, my wife as you know works at LACMA, and I think the relationships that corporations have with art is very complicated. A lot of museums sort of depend in some ways on at least some corporate sponsorship of exhibits and things like that. Corporations often buy art. They're often one of the big purchasers of art. Often when we’re driving around my wife will point out some piece of sculpture or something that you might not see otherwise if it weren't for a big corporation deciding to buy the big piece of art and put it right in front of its building or right in the lobby of its building. So in some ways they are creating space for art, creating the opportunity for artists to actually profit off of their art. But it's a far more complicated story than just the one-way street of corporations being good for art. It's much more complicated than that.
IT: Yeah that’s for sure, as I think their involvement in so many aspects is. I don't know, like I said in regards to your question about opportunities, it just seems like such an entrenched reality that corporations have a hand in so many aspects of our lives and I can’t untangle that. I can’t see beyond that reality. It feels too monumental and I don’t have enough experience in that world—of art institutions— to have much of an opinion. I don’t see a corporation’s agenda in its support of the arts in the same way that I do in politics. I am generally against this kind of corporate charity, it seems like there are other models not based around relying on private financing— but in terms of our current system it makes sense. It’s about who has the money to support these things.
That actually brings me to one of my questions for you. How have individuals or communities been successful at pushing back on corporate power?
AW: Yeah, well it’s a good question. Maybe not very successful, and that's sort of part of the story I told in the book. There's a reason why corporations seek out these constitutional protections. It's not so they can become part of “We the people.” It's so that they can fight off business regulation. The primary reason we regulate business is to protect the public, protect investors, or protect consumers— communities who might have to live in the polluted space that BP has given us. And corporations want to fight against those laws because they want autonomy, and they want to be able to do whatever they want so they can pursue profit. So part of the reason why corporations seek out constitutional rights is to fight back against individuals or communities that seek to combat corporate power.
IT: And they usually win.
AW: Yes, the corporations usually win. I didn't say it was a hopeful story.
You know my book is sort of bookended. It begins with the first colony in America. We often think of the first colony as the Pilgrims up in Plymouth Rock. They were religious dissenters who were seeking to evade the crown and somehow sort of really reflect that American vision of liberty fighting against the tyranny of the crown. And they had the Thanksgiving story and whatnot. But that's not the first permanent English colony in the New World. The first colony was in Jamestown, Virginia, and it was named after King James. It was not designed to protest against the crown, it was actually a business corporation, a trading company, one of the first stock corporations in England that was coming to what became the United States to exploit the resources.
And when it arrives— the Virginia Company of London, that was the name of the corporation that founded that first colony— most of the people who lived there were either employees or investors in the company. So when that company comes to America, its prospects are very dim, it's a very harsh environment in Jamestown. The story of the first Jamestown colony would be a great movie because it's so dramatic. 70% of the people who come here in the first 10 years die of starvation or illnesses that came from bad water or whatnot. And at that moment the corporation is just one little outpost in this vast expanse of America, and it seems almost like there's no chance that it can survive.
But it does survive, and the other bookend is the story of another little town in New Mexico about 10 years ago that thought to legislate a ban on fracking, which is this process where you get underground water, and it's increasingly seen as this environmental disaster as a process. And this little town in New Mexico tries to take on the big corporations that are involved in the fracking, and they lose spectacularly. Like there's no chance to fight off this corporation. The town's budget is less than $2 million dollars a year, and they are fighting against big companies like British Petroleum and others that have billions of dollars. Who's going to win that battle?
And so the book begins with the corporation as this little outpost that has no chance of surviving in the world and the book ends with the corporations having gotten so powerful, so comprehensive, and so ever-present that this little town in New Mexico can't even fight to stop the corporation from controlling their lives. And it’s really a story about how, the story of America is not just one of democracy and increasing rights and inclusion. It’s also a story of the growth of corporations, and corporate power and corporate profit. Such that you go from the Pilgrims to this little town in New Mexico where individuals have no chance.
IT: And that's the part in the book where the corporate charters become kind of a model for the Constitution, right?
AW: Right. And this gets back to the complexity of the story. Think about the complexity of corporate money in the arts. It has good sides it has bad sides, it’s complex. And it’s the same thing when we think about corporations and democracy. It's one thing to say corporations are all bad and that they're just pathological profit-seeking enterprises, but the story about their role in America is a little bit more complicated. Like I said, that first colony was a corporate enterprise. We might not have the United States if it weren't for that corporation.
And one of the surprising things that I found in writing and researching my book was how much those early corporations—all the early colonies were formed by corporations—was how those corporations influenced democracy. The first representative assembly in America was in Jamestown, and any history book that talks about democracy talks about this as the origin story of democratic self-governance. But the Jamestown assembly was not designed for democracy, it was designed by the corporation as a method of trying to encourage more people to come to the colony. Because they thought, you know, it's really deadly here, everyone's dying, and if we tell people in England, where you didn't have any say over your government, “Come here and you can have say over what you do. You can control your own lives more if you come here.” It wasn't an exercise in equal participation, it was an idea of, this is an investment, and this is a marketing ploy, if you will, to get people to come here.
And indeed one of the great questions is why do we have a written constitution? England didn't have a written constitution. They still don’t have a written constitution.
So why do we have this written constitution? It came from corporate charters. These colonies had charters that were granted by the crown and they said that this is what you as a corporation can do, and this is how you will be organized, and that became the framework for government, such that by the time that we have the American Revolution all of the colonies used these corporate charters—what they started to call constitutions—the documents that organize the governments. They said who have rights and who didn't have rights, the same way that a corporation today has to decide who has the right to vote at the shareholder meeting. Not just anyone can vote–only people who are under the charter of the corporation are recognized. That happens to be mostly anyone with voting shares, but again that comes from that corporate charter. So the very Constitution that we hold so dear in America itself has roots in the corporate form.
IT: Yeah that was one of the most indelible stories from the book, that the corporation is America in a lot of ways. I mean it’s really been there all along.
I wanted to go back to your question about corporations sponsoring the arts. It actually made me think about some recent ad campaigns I’ve seen. I think it's Honda that has the people in blue shirts and they go around giving people money, or paying people’s bills. Or I think it’s Domino's who is filling potholes in certain areas. I think you text them that there's a pothole in your neighborhood and they'll have someone come and fill it—I have no idea what it has to do with pizza, but there's something about this notion of corporations kind of filling the gaps left by government and institutions that seems perverse to me. It isn’t the arts but it is in line with that idea of corporate charity and it makes me question why there is even the opportunity for these kinds of stunts, they seem to represent a kind of failure of the state.
I was actually just reading about the artist Gary Hume writing a letter to the National Portrait Gallery because BP sponsors a big award every year with them and he was criticizing the arts for laundering the image of a fossil fuel company— a company that is literally destroying the planet with their product. And then there’s the whole Sackler thing, the OxyContin issue and the people protesting that. These are a bit more obvious concerns with companies whose products are causing harm in society and people being upset by their involvement in cultural institutions and I don't have an answer for another way, maybe public financing? But these are maybe more extreme examples of people’s discomfort with corporate involvement. I guess it depends on what corporation it is and what they sell.
AW: Right. And we're seeing more and more of that I think. You know there's a lot of people who protested Citizens United. And there's a lot of reasons to protest Citizens United. At the same time, more and more people want to be customers and employees of businesses that share their values, and we want our corporations to be involved in politics sometimes, right? We’re happy that corporations are taking a stand against North Carolina when it tries to adopt a transgender bathroom bill requiring people to use the bathroom of their birth gender. And when they stop because corporations say we're going to take our business elsewhere, a lot of people say “Well, yeah! You go!” Just over the past week, Walmart has made a lot of news by taking a stand against open carry firearms, and that they’re going to limit ammunition sales. This is not a move that’s obviously designed just for profit, right? It may ultimately be profitable, but it's not just for profit. It's also about Walmart expressing some values that they think their customers want, or that their shareholders want, or that the society wants, and it’s kind of complicated in that we increasingly seem to want corporations to be our political voice.
IT: Well because they’ll do something while Congress will not.
AW: Right, and I know gun safety reform advocates are really focused on trying to convince corporations to take a stronger stand against guns because government won’t do it.
IT: Yeah, it’s a bit upside down.
I’m curious how subjectivity and bias are accounted for in the interpretation of law?
AW: Well that's the thing—interpreting the vague ambiguities of the Constitution is always a subjective endeavor, right? The constitution talks about freedom of speech, or due process of law, or equal protection of laws, but it doesn’t tell us anything more than that. So if you want to answer the questions about whether burning an American flag is freedom of speech, or whether restricting how much you can spend contributing to a candidate—is that a protected form of speech? There’s no answers in the text of the Constitution, it relies on interpretation. You have to try to construct a meaning, and that’s inherently a subjective process.
It's not an objective one, and I think one of the biggest dilemmas that constitutionalism faces in America today is that there's been a big push to try to say that constitutional interpretation is objective. Like this was Justice Scalia's big effort, right? That the way to do constitutional interpretation is originalism—let’s look at the original understanding of the Constitution when it was adopted and that's an objective way of doing things. It eliminates subjectivity. We’re not going to have a judge imposing his or her values on the text. But it’s a mirage. There's no way that you can find that objectively.
The search for history and defined historical meaning is itself a subjective process and you can’t help but filter things through your own lenses. And Justice Scalia was a good example of that. There’s plenty of cases where, including his vote in Citizens United, there’s no evidence, there's nothing in the historical record to show us that the framers thought that corporations would have constitutional rights in the first place, and in the second that they would have a constitutional right to spend as much money as they want influencing elections. That's not how elections were run back then. So how do you get there? You can only get there with subjectivity. So I think this kind of push for originalism is kind of a pernicious way to pretend that we can be objective in what is inherently a subjective process. I think maybe a better solution would be to admit the subjectivity, be transparent about it, allow people to criticize it, and be open to changing your mind.
IT: Where does originalism come in? Is it immediately used like a mask to hide their biases?
AW: I think so. I mean it is really a mask, it’s used as a defense: “Well, it’s not me. Don't blame me. I'm just the vessel.” But it really takes what is an inherently subjective process and tries to pretend that it’s objective. And I don't think that benefits anybody, especially because the people who believe it’s objective really just believe everyone else is making it up and they’re not self-critical about how they make it for themselves.
IT: Are law students taught to observe or mediate their own biases— their own subjectivity?
AW: Yeah, I think it's a large part of what we do in law school is teach people how to manipulate language. Sometimes we think “Oh you’re playing a lawyer’s game,” you know semantics or whatnot. But that's part of what we're teaching. These are tools to use. You don't need a lawyer to tell you you can't drive 65 miles per hour in a 55 mile per hour zone. Where you need a lawyer maybe is to tell you whether how you’re driving counts as reckless driving— something where there is no objective measure in advance. It's very context-sensitive. Driving 55 miles an hour may be reckless driving in a space where that speed limit endangers people. Or if you're doing 55 miles an hour right through a red light. There’s ways in which the terms of the law are about recognizing that there is inherent subjectivity and we want to teach our students how you can use that subjectivity in the way that maybe an artist uses materials: to create something that wasn't previously created before. And sometimes that can be problematic, but I think it’s really essential to understanding how the law works.
IT: Well, I have one more question for you. We were talking about that piece over there, the kind of Frankenstein’s monster— can you tell us why you think Citizens United became a stand-in for this idea of corporations being people? I mean they are practically synonymous to a lot of the public, so much so that people use the terms interchangeably at times.
AW: I think Citizens United became that stand-in because what the court said was that corporations could spend unlimited amounts of money to influence elections. You know, I think when corporate personhood meant the corporation has property rights, that you can sue BP in a court of law without having to go after the individual shareholders, who might change at a moment’s notice. I think when that was the notion of a corporate person, it wasn’t that controversial. I mean I don't think it's controversial that Coca-Cola would own its recipe, and would own its bottling plants, and would be able to profit from them. I don't think Americans really had a big objection to the idea of corporate personhood when that's what it meant.
But Citizens United changed that. Citizens United said no, corporate personhood means more than that. And it means that corporations have the same rights as you and me and they can spend unlimited amounts of money to shape your democracy. I think for many Americans, that's just viscerally wrong. Even though they know corporations are going to influence our democracy anyway, right? We know that corporations exert power and influence over what we do. Generally, we get our news from corporations, right? We check Google News or the New York Times. Those are corporations and they’re influencing democracy. But the idea that they can so overtly use their financial resources to basically take over democracy; to finance campaigns to make elected officials even more beholden to corporations than they already were. I think it made a lot of people very uncomfortable.
And it was that very fact that everyone was so uncomfortable that made me want to analyze it a little bit more. And it just so happened that almost 15 years before Citizens United, I had been exploring some of these ideas about corporate personhood. Some of these stories that come up in the book were stories that almost no one in constitutional law circles really talked about, but I found them fascinating. So, when Citizens United happened part of me was like, “Oh, I know that stuff. I’ve got a book to write about that.” I knew some stories that would be worth telling that hadn’t otherwise been told.
And indeed that Frankenstein’s monster metaphor is one that I think accurately captures what we’re worried about: that we create this being—and we create it for good purposes—but because of its internal operation and the way that it’s created, it comes back to haunt us, and it takes over to exert its power over us rather than us controlling it. So the corporation has long been analogized to that Frankenstein’s monster. Citizens United seems to have only made that considerably worse.