The Absurdity of Constitutional Protection of Corporations

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Tue Apr-13-10 08:00 PM
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The Absurdity of Constitutional Protection of Corporations

The proclamation that announced the birth of our country in 1776 spoke eloquently of inalienable rights. The first two paragraphs of our Declaration of Independence read:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

I bolded and italicized the repeated references to humans � that is, natural humans � to emphasize the fact that the rights in question were meant to apply to humans, and to humans only (I believe that the word �men� was meant as a generic term for �human�, though probably some of our Founding Fathers would have disagreed with that). It is important to emphasize that the inalienable rights referred to in our Declaration of Independence were meant to apply only to human beings, because the Constitution that followed in 1789 was meant to breathe life into the principles enunciated in our founding document. That point is made here, specifically with respect to our Bill of Rights:

Our Bill of Rights was the result of tremendous efforts to institutionalize and protect the rights of human beings. It strengthened the premise of our Constitution: that the people are the root of all power and authority for government. This vision has made our Constitution and government a model emulated in many nations.

Yet with the rise of corporate power in the United States, our Constitution has often been perverted to the protection corporate power at the expense of the rights of human citizens of our country. A corporation is a legally created entity that is composed of human beings. In the vast majority of instances, the human beings who compose corporations are much wealthier than the average human citizens of our country. Therefore, when our Constitution is perverted to confer unwarranted protections on corporations at the expense of average citizens, the beneficiaries are the wealthy, at the expense of the poor and the working and middle class.

The number 1 reason why our Constitution should NOT be interpreted to protect corporations

Corporations are artificial creations of government � specifically creations of the legislative branch of government. Our legislators are elected by the people to represent their interests, and they are accountable to the people. Therefore, their decision to create corporations was (and is) based on the need to serve the interests of the people. There can be no other rational justification for the creation of a corporation. The justification cannot be to serve the interests of the corporation, since a corporation is not a sentient being but rather is merely an artificial construct of government. Its only legitimate purpose is to serve human needs. That is the only legitimate purpose for which government creates corporations and confers special privileges and immunities upon them. Corporations exist solely at the pleasure of government � and thereby solely at the pleasure of the governed. (Hope I wasn�t too repetitious, but this point bears repeating).

Yet over time, as corporations grew in wealth and power � largely the result of the privileges and immunities conferred upon them by government � their original purpose has often been transformed from that of serving the public to that of serving themselves. That is, their purpose has often been transformed into serving the interests of the wealthy and powerful individuals who own and run them, at the expense of the public interest. In other words, corporations have often morphed into a kind of Frankenstein�s monster, independent from and uncontrollable by their creators.

I don�t intend to argue to what extent today�s corporations serve the public interest vs. the interests of the wealthy and powerful individuals who own them. Undoubtedly that varies tremendously from one corporation and one situation to the next.

My point is much simpler than that. If the legislators whom we elect to represent our interests believe that the creation or support of a corporation will serve the public�s interest, then they should create it. If they believe that endowing a corporation with special privileges and immunities will further serve the public interest, then they should do that. And if a corporation abuses its privileges to the detriment of the interests of the people it was created to serve, then the legislators should abolish those privileges or simply revoke the corporate charter.

But here is the main point I want to make: Our judiciary has no right to revoke legislation created by our government by pointing to our Constitution and claiming that it protects corporations against the abuses of government. It does not. The inalienable �rights� protected by our Constitution are human rights. Corporations are artificial constructs of government, created for the sole purpose of serving humans. The very concept of an abstract and artificially created entity having inalienable rights is patently absurd, and it is an insult to all sentient beings. Neither our Founding Fathers in their deliberations on our Constitution, nor our Constitution itself says anything whatsoever about the inalienable rights of corporations. The fact that some courts have claimed that corporations are �persons� does not change these facts.

Constitutional rights that are frequently improperly conferred on corporations

Our Constitution is filled with clauses specifically designed to confer rights and protections on our citizens. But there are two parts of it that have been especially susceptible to corporate abuse: our First and Fourteenth amendments.

First Amendment
Our First Amendment, among other things, protects our right to speech by saying that �Congress shall make no law�. abridging free speech�. This clause was most recently abused in the cause of corporate power in Citizens United v. the Federal Elections Commission, when Supreme Court Justice Anthony Kennedy, writing for the majority in a 5-4 decision, said �Political speech of corporations or other associations� cannot �be treated differently under the First Amendment simply because such associations are not �natural persons.� � That is wrong. Our Constitution protects the speech of the individuals who compose a corporation, just like it protects the speech of all other U.S. citizens. But since our government creates corporations and gives them special rights and immunities, it also has the right and duty, as our representatives, to decide what additional privileges they may or may not have as a corporation.

Since previous judicial decisions have claimed that money is a type of speech, conferring First Amendment protection of speech upon corporations is especially dangerous. Justice Stevens, writing in dissent in Citizens United, neatly summed up some of the dangers:

�Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.� The Court�s decision, he added, undermines the integrity of our democratic institutions and �will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process.� �

�Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. . . . Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.� Later, he added, witheringly: �Under the majority�s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.�

Fourteenth Amendment
There is no question that our Fourteenth Amendment was passed by Congress primarily to protect the rights of our former slaves. It begins:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Clearly this paragraph, commonly referred to as the �equal protection clause� of the Fourteenth Amendment, applies to persons born or naturalized� It also refers to �citizens�. But judicial activists turned logic upside down to use the clause to protect corporations by claiming that they are �persons�. The claim that corporations are �persons� is absurd enough, and is unsupported by any logic or understanding of the English language. To make that claim from a paragraph that clearly is meant to apply to �born or naturalized� persons and to �citizens� is even worse. And to use those absurdities to claim Constitutional protection for an artificial entity created by government is beyond absurdity.

Yet, since corporations were handed corporate personhood by our courts they have used the 14th Amendment to great advantage:

From that point on, the 14th Amendment, enacted to protect rights of freed slaves, was used routinely to grant corporations constitutional "personhood." Justices have since struck down hundreds of local, state and federal laws enacted to protect people from corporate harm based on this illegitimate premise. Armed with these "rights," corporations increased control over resources, jobs, commerce, politicians, even judges and the law.

By comparison, the 14th Amendment was rarely used to protect our former slaves. An analysis of 14th Amendment cases from 1886 to 1912, described in an article titled �The Hijacking of the Fourteenth Amendment�, found that only �two cases restrained or annulled State action involving Negroes, and 39 cases restrained or annulled State action against corporations.�

So how did corporations gain personhood (along with the myriad Constitutional protections they implied)?

In the early history of our country corporations were not considered to be protected by our Constitution. Thomas Jefferson said in 1816, �I hope we shall� crush in its birth the aristocracy of our moneyed corporations.� An article titled, �Our Hidden History of Corporations in the United States� notes:

For 100 years after the American Revolution, legislators maintained tight control of the corporate chartering process. Because of widespread public opposition, early legislators granted very few corporate charters, and only after debate. Citizens governed corporations by detailing operating conditions not just in charters but also in state constitutions and state laws. Incorporated businesses were prohibited from taking any action that legislators did not specifically allow.

In 1855 the U.S. Supreme Court made clear, in Dodge v. Woolsey, that corporations have no special rights or privileges, and that they are subservient to the American people:

That the people of the States should have released their powers over the artificial bodies (i.e. corporations) which originate under the legislation of their representatives� is not to be assumed. Such a surrender was not essential to any policy of the Union, nor required� Such an abandonment could have served no other interest than that of the corporations, or individuals who might profit by the legislative acts themselves. Combinations of classes in society, united by the bond of a corporate spirit, for the accumulation of power, influence, or wealth� unquestionably desire limitations upon the sovereignty of the people� But the framers of the constitution were imbued with no desire to call into existence such combinations�

In 1877, in Munn v. Illinois, the U.S. Supreme Court ruled that the 14th Amendment cannot be used to protect corporations.

But in 1886, in an unofficial opinion by U.S. Supreme Court Chief Justice Morrison R. Waite, before any oral arguments took place in the case of Santa Clara County v. Southern Pacific Railroad Company, and without any explanation whatsoever, Waite simply announced:

The court does not wish to hear argument on the question whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

The case was decided on other grounds. Yet this offhand statement � which cannot possibly constitute an official opinion of the court, which is always preceded by extensive research and debate � has since been considered the law of the land. And then:

A couple of years later, in the case Minneapolis & St. Louis Railroad v. Beckwith (1889), the Court cited the Santa Clara case as the precedent for corporations having due process and equal protection under the Fourteenth Amendment. With that, corporations became legal persons in the United States, and gained the ability to challenge in federal court regulatory actions at the state level.

Consequences

Thus the power of corporations against individuals was greatly increased, by allowing them the protections given to human beings under our Constitution, even though corporations are simultaneously showered with various powers that actual persons don�t have and exempted from many of the responsibilities and obligations that actual persons have.

David Korten puts this in perspective in his book, �When Corporations Rule the World�:

Thus corporations finally claimed the full rights enjoyed by individual citizens while being exempted from many of the responsibilities and liabilities of citizenship. Furthermore, in being guaranteed the same right to free speech as individual citizens, they achieved, in the words of Paul Hawken, "precisely what the Bill of Rights was intended to prevent: domination of public thought and discourse." The subsequent claim by corporations that they have the same right as any individual to influence the government in their own interest pits the individual citizen against the vast financial and communications resources of the corporation and mocks the constitutional intent that all citizens have an equal voice in the political debates surrounding important issues.

In summary: 1) The idea that the authors of our Constitution meant the inalienable rights that it describes to apply to abstract non-human entities created by government is absurd on the face of it; 2) There is nothing in our Constitution to suggest that corporations have �rights� not conferred on them through the general legislative process; 3) For the first century of our history there was no hint that anyone thought that our Constitution protected corporations by conferring inalienable rights upon them; 4) Corporate personhood was established in 1886 by an informal and unexplained remark by the Chief Justice of the Supreme Court, with no effort to justify it in the case that it was supposedly attached to, and; 5) That remark has been used ever since to justify the Constitutionally protected expansion of corporate power.

The organization �ReclaimDemocracy.org � Restoring Citizen Authority Over Corporations�, sums up the problem that we now face:

We believe that corporations are not persons and possess only the privileges we willfully grant them. Granting corporations the status of legal "persons" effectively rewrites the Constitution to serve corporate interests as though they were human interests. Ultimately, the doctrine of granting constitutional rights to corporations gives a thing illegitimate privilege and power that undermines our freedom and authority as citizens. While corporations are setting the agenda on issues in our Congress and courts, We the People are not; for we can never speak as loudly with our own voices as corporations can with the unlimited amplification of money.