The Abolishment of Corporate Personhood is Necessary

The Abolishment of Corporate Personhood is Necessary
Jonathan Gillis
14 December 2011 (Updated 15-20 December 2011)

 We have hitherto proceeded on the idea that representation
related to persons only, and not at all to property.
But is this a just idea? Government is instituted no less for protection
of the property than of the persons of the individuals.
The one as well as the other, therefore, may be considered
as represented by those who are charged with government.
–– James Madison, the Federalist Papers[1]

Corporations have become so much a part of our daily lives, that within the present cultural framework, it might seem intimidating and perhaps even somewhat pointless to question the legitimacy and function of a corporation, let alone the wealth, power, and influence of a corporation. Incidentally, the same might be said of congress, at least on the latter point of wealth. Actually, one might argue, though it hardly seems disputable, that our lives revolve around corporations in this technologically dominated super-society. What would our lives be like, without the corporation? At any rate, in the interest of human, social, and environmental rights and wellbeing, it is of great importance to not only question the legitimacy of profitable corporations, considering that corporations are arbitrarily deemed persons and enjoy the rights of a person far exceeding human beings––an example being, that money has essentially become a toxic mimic of freedom of speech––and also bearing in mind that monopolies abound. In terms of actual and functional democracy, the governable authority of state governments is largely impotent to that of the federal government, and in turn, the governable authority of the federal government is largely impotent to that of the unchecked and self-serving power of the corporation. Insofar as any governable authority is functionally democratic and executed in the interest of a truly egalitarian society. Suffice to articulate, arguably, such a society has not been hitherto pursued at all, or with nearly enough tenacity to merit the pursuit thereof, and certainly is an immeasurably far distance from fruition. Surely such a society was never intended by the elites who constructed the United States out of the rebellious colonial powers; akin to how it is not even in the elites’ realm of possibility today.

Without precedent in western civilized history, more of what we see, hear, read, eat and so forth, is manufactured and controlled by for profit corporations for our mass consumption. Indeed, virtually every aspect of our lives is in some way fashioned, influenced, or controlled by corporate power. The very air we breathe is poisoned by corporations; and yes, we also poison the air, though arguably our impact pales in comparison to that of the corporation, and is made possible, to the extent that it overwhelmingly matters, by the corporation. Most of us purchase food manufactured by corporations, live as tenants to landlord corporations, utilize transportation produced by corporations, work for corporations, enjoy leisure time through corporate ventures, be they Hollywood films, television, or football games, and so forth and so on. The U.S. government, from the municipal to the federal level, is largely a corporate dominated enterprise. Is it progress, in a morally acceptable way, that long ago, corporations use to be municipalities, and now they’re so large and powerful, they dominate entire nation-states? Questionably, the U.S. Empire is one in the same with that of the corporation. Is it progress, again, in a morally acceptable way, that our personal identities––even our subcultures, should we choose not to identify with the so-called “mainstream”–– that every niche that caters to personalities that are in many ways fabricated, are, by and large, constructs of, and dominated by, corporations out to make as much money as they can, with a hunger that inherently can never sated? It’s little wonder that many of us human beings, at least in the western dominant culture, seem to identify more with corporations than with our relative human beings, let alone the natural or real world and all of our nonhuman relatives. How many hours do we spend behind a machine? Contrastingly, how many hours do we spend immersed in the companionship of others, conversing face to face, or visiting as it were, the natural world? When we do speak with one another, how much of the conversation is about general culture, i.e., the episodes of our favorite “reality” shows, the performance of a team or statistics of an athlete, a purchase we made, and so forth? How much of our conversation is informed by political culture, i.e., Mitt Romney’s retirement deal, or the U.S. military communicating with the Taliban via Twitter, and so on? When we do visit, as it were, nature––meaning of course the real world, not the one of illusions that imperial humans have created and are cocooned in en mass––on what premise, by what means, and to what end do we do so? One might suppose that our alienation from each other is compensated, to a degree, by method of the national “holiday”. Though what of say, Columbus Day? Imagine if the German people had Hitler Day, and every year the federal government and schools were closed in commemoration and the retail stores had sales for all the gizmos and gadgets available; with nobody of course questioning how all those gizmos and gadgets came about, i.e., the impact on the environment, the suffering of wage-slave workers and so on. Might the contemporary distinction made of Hitler and German citizens, be a distinction that is made of say, George Bush Jr. and the United States citizens in future generations? Surely such a reality would be dystopia. Interestingly enough, when one earnestly contemplates, for instance, economic equality, in many cliques and circles, one runs the very high possibility of being dismissed, or worse, manifesting a deeper alienation, as subscribing to some utopia which would never be possible, and so is not worth the energy of thought or discussion, let alone action. It is important to understand exactly what a corporation is, considering, by and large, our way of life, our very lives, and increasingly the world, certainly including nonhuman species and the natural environment, is altogether created, directed and oppressed by the corporation and its enterprises. 

What precisely is a corporation? According to one dictionary, a corporation is quite simply, either “a company or association chartered to act as an individual”, “a governing body”, or “a fat belly”.[2] An older Webster’s Dictionary defines a corporation as “a group of people organized, as to operate a business, under a charter granting them as a body some of the legal rights, etc. of an individual.”[3] The connotation of an individual within the fundamental context of the corporation is denoted as that of a person. In order to deduce a precise definition of a corporation, let us look elsewhere. Dictionary.com states that a corporation is “an association of individuals, created by law or under authority of law, having a continuous existence independent of the existence of its members, and powers and liabilities distinct from those of its members.”[4] Insofar as one might ascertain, at least in the realm of observable and quantifiable reality, human beings, individual persons as we are, cannot exist continuously, for we experience death, nor can we exist independent of ourselves, we are biologically born––not created by law or under the authority of law, save perhaps Natural law, which it seems humans are particularly keen on trumping, even, and maybe especially so, through science––and finally, our powers and liabilities are not distinct from ourselves. Certainly this is true of nonhuman beings; in fact, arguably, no living beings meet the criterion mentioned in the definition above.  

Yet another definition declares that a corporation is “a group of people authorized by law to act as a legal personality and having its own powers, duties, and liabilities” which might also be referred to as a “municipal corporation [as in] the municipal authorities of a city or town”. [5] The etymology of the term corporation might be traced to around the 1530s.

"persons united in a body for some purpose," from such use in Anglo-Latin, from L. corporationem, noun of action from corporare "to embody" (see corporate). Meaning "legally authorized entity" (including municipal governments and modern business companies) is from 1610s.[6]

Similarly, the origins of the term corporate:

late 14c., "united in one body," from L. corporatus, pp. of corporare "form into a body," from corpus (gen. corporis) "body" (see corporeal)[7].

In other words, simplistically, a corporation is a united organization comprised of natural persons, legally authorized to serve a particular function.

The aforementioned laymen definitions in conjunction with the etymologies give us a very general, perhaps unhelpful, idea of what a corporation is, though what of the legal definition of corporation? One legal definition of corporation is “an invisible, intangible, artificial creation of the law existing as a voluntary chartered association of individuals that has most of the rights and duties of natural persons but with perpetual existence and limited liability.”[8] In other words, corporations are a legal fiction, have been bestowed the rights of super persons, may exist perpetually regardless of the flesh and blood human beings embodied and associated with the corporation, and have limited liability to any and all claims of criminal and legal actions, and of harms or damages of any and all sorts. 

Jan Edwards and Molly Morgan of the Women’s International League for Peace and Freedom, have published an important summary of the history of “corporate personhood”, which is to say, “the legal phenomenon that provides constitutional protections to corporations.” Edwards and Morgan express that “Women, poor people, slaves, and even corporations had long been considered persons for purposes of following the law…Corporate lawyers had tried to avoid these laws by claiming corporations were not persons and therefore not required to follow the law. So it was decided that for purposes of following the law, corporations were persons…But corporations were not persons with rights in the law, and neither were women, slaves, indentured servants, or poor people.”[9] [Emphasis original]. To understand corporate personhood, Edwards and Morgan take us back to the 55 white men who fundamentally established the United States of America.   

Elegant rhetoric aside, the framers of the U.S. Constitution, the perceived foundation of U.S. law, were wealthy, white, highly educated––by European standards––land and slave owning men. The wealth, and hence, power, of the “founding fathers” as they are chauvinistically referred to, was based on “how much property they owned––land, crops, buildings, personal goods, and, for most of them, property in the form of human beings, their slaves.”[10] Before continuing further with Edwards and Morgan’s important analysis, a brief aside should be mentioned.

The genocide and colonization of the Native American populations shall have to be put aside, though it is worth quoting some passages, not particularly restricted in meaning and scope to antiquity, in an effort to offer a general idea of the ideological sentiments of the elites in the late 1700s and there implications; positions which have been much idolized throughout the history of the U.S., and continue to be fundamentally worshipped, and flourish it should be added, today. With regard to the Native inhabitants not hitherto decimated or conquered by cultural and federal conquest, not yet assimilated into the folds of the infant empire, the esteemed Alexander Hamilton, the face printed on the front of the U.S. ten dollar bill, expressed: “The savage tribes on our Western frontier ought to be regarded as our natural enemies, [Britain and Spain’s] natural allies, because they have most to fear from us, and most to hope from them.”[11] This speaks volumes, for Britain and Spain’s (among others) treatment and impact of the Indigenous communities of Turtle Island, or the Americas, had been nothing short of genocidal. The elite authors and signers of the 1776 Declaration of Independence of the thirteen states from Britain, avowed, among the many charges against British autocracy, that the king “excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.”[12] That European warfare, which was of course introduced to the so-called New World, was known to be an undistinguished destruction of children, women, men, and elders, is vital to remember when considering the authority of the charge against American Indians referred to above. Incidentally, the lumping together of all Native tribes, as if distinct languages counted nothing for cultural uniqueness, is of course aligned with the doctrine, which prevails today, that the “uncivilized” are undistinguishable from one another in that any culture not civilized is inferior. Given a cursory look, one concludes that, contrary to popular opinion, the so-called “founding” of the United States was insidious, to say the least; one wonders where that leaves us today. The remnants of the Native populations whom were acculturated and, or, living within conquered and stolen territories, which is to say the original colonies and subsequent states, were only considered at all, at least by James Madison in the Federalist Papers, insofar as how they might or might not be regarded as constituents of a particular state. “What description of Indians are to be deemed members of a State is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.”[13] There is much more to discuss on the genocide and colonization of Native American peoples, though here is not the place.

Edwards and Morgan argue that the elites that established the U.S. knew very well the threats to their power, which a true and functioning democracy would present. “The kind of democracy they prized and wrote about so eloquently could only be practiced by people like them––certainly not by the rabble. Many of them wrote and spoke at length about the inability of the common people to be self-governing” Edwards and Morgan observe. The republic created by these elites, was not designed to protect people, rather, it was designed to ensure the rule of the opulent, the minority, over the majority. In other words, this republic was designed to protect property, in the hands of the rich, not the majority landless people.

James Madison, one of the principle framers of the Constitution, declared Tuesday June 26th, 1787:

The man who is possessed of wealth…cannot judge of the wants or feelings of the day laborer. The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we [resemble] the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. Various have been the propositions; but my opinion is, the longer they continue in office, the better will these views be answered.[14]

That the “minority of the opulent” has been, and is, protected “against the majority” is quite noticeable. In the past 30 years alone (before the instigated housing market crash and the 2008 “Great Recession”), in terms of economic growth, so-called, there has been an enormous, and contrived disparity between “the top one-hundredth of one percent”, the opulent of the oligarchy, “who now make an average of $27 million per household” and the bottom 90%, with an average income of $31,244.[15] Incidentally, the U.S. Labor Department reported that some 4 million people were working at or below the federal minimum wage of $7.25 for the 2009 calendar year.[16] The federal minimum wage is not a livable wage. A rough illustration is that assuming one works 40 hours a week at $7.25, one would make $13,920 a year, minus state, federal and other tax deductions, minus health, vision, and dental benefits, assuming they are permitted and able to pay for such coverage. With the soaring costs of everything from food to housing, even a single person working at the dismally and repressively low federal hourly rate is destitute to a remarkable degree. Arguably, tens of millions of people in addition, who make more than the federal minimum wage, even dollars more, are still not living or achieving the much flouted and rapaciously materialistic “American Dream”; for they are having extremely hard times covering the basic necessities. In her important work, Nickel and Dimed, Barbara Ehrenreich remarks that in early 2007, “Circuit City laid off 3,400 employees because they had been around too long and had seen their wages creep up to $10-20 an hour. They were allowed to reapply for their old jobs after a ten-week ‘cooling off’ period––during which they would presumably overcome any resentment occasioned by the layoff––but their new jobs would be paid at the minimum wage.”[17] Keeping in mind that closer to $20 an hour is a livable wage, this corporate tactic, while if not criminal (which it should be), is certainly diabolical; though this is the expected behavior of the corporation. This general downward trajectory as experienced by workers is not limited to retailers that have “gone out of business” as they say, as Circuit City went defunct in early 2009 reportedly laying off tens of thousands of workers. Nor is it limited to retailers; it would not be unusual for a hospital to lay off its long-time house-keeping workers who made upwards of $11.50 per hour or more after giving years of labor, then hire workers at minimum wage to replace them. If costs truly needed to be slashed, one wonders, perhaps naively, why the exorbitant six-figure salaries of corporate employees are not slashed. Or, rejecting the premise that the managerial class is necessary, one speculates how things would be if the managerial class was made obsolete. There is much more to the crisis that is the lack of a livable wage, and relational emergencies, though these doctrinal problems shall not be further pursued here.         

“In 1787, in order to be considered one of ‘We the People’ and have rights in the Constitution, you had to be an adult male with white skin and a certain amount of property…At the time of the Constitution, this narrowed ‘We the People’ down to about 10% of the population. Those who owned property, including human property, were very clear that this was rule by the minority––and that’s the way they wanted it.”[18] That the few main provisions in the Constitution meant to protect people were intended to protect only the privileged few, and that the Constitution was by and large written to protect property, is not inconsequential at present.

Of note, apparently, for his part, Thomas Jefferson, a principle writer of the Declaration of Independence and eventually the third U.S. president, had intended for two additional amendments to be included in the Bill of Rights. Author Thom Hartmann elucidates: “[O]n the issues of banning a standing army and blocking corporations from gaining monopolistic control over industries, Jefferson was getting resistance. The nation had just fought a bloody war against England, and there was little sentiment for completely dismantling the army. And the Federalists who were in power - a party largely made up of what Jefferson called ‘the rich and the well born’ - were opposed to government constraints on business activities.”[19]

“Jefferson kept pushing for a law, written into the constitution as an amendment, which would guarantee liberties for citizens, prevent companies from growing so large they could dominate entire industries or have the power to influence the people’s government, and reduce the possibility of the nation being taken over by a military coup” Hartmann asserts. For his part, James Madison shepherded the Bill of Rights, whom he drafted along with Jefferson, with the two omissions, the prohibitions of monopolies and standing armies, through Congress which “was ratified as the first ten amendments to the constitution on December 15, 1791.” Thomas Pain, Hartmann asserts, and “others of the Revolutionary Era”, presumably including Jefferson and Madison, “reasoned, any institution made up by and of humans - from governments to churches to corporations - must be subordinate to individual living people in terms of the rights and powers held by the institution.”[20]

There is an important characteristic within the initial definition of who was considered a person in the United States. “Ninety percent of the people––all the immigrants, indentured servants, slaves, minors, Native Americans, women, and people who don’t own property (the poor)––are, legally, not persons. They were not persons with rights, but were persons for following the law.” This subhuman status, which was not overtly affirmed within law, while perhaps less obvious, is of course still in place today. “By allowing only wealthy, white males to be ‘persons’, a class system was put in place.”[21] There is no doubt that presently, a rigid class system exists in this culture, albeit within a more “civilized” and sophisticated societal framework–– if still patriarchal and white dominated. A sign at Occupy D.C. in October read: This is class genocide, they no longer care about race; the only color they care about is green. The anonymous author was obviously insightful, though to be sure, racism, a contrivance––among all the other animosities that incite fear and hate, such as sexism and homophobia––of supremacy meant to divide, while very much diluted thanks mostly to popular struggle and activism, is very much prevalent today. In his vital work Race Matters, Dr. Cornel West writes: “How does one undermine the framework of racial reasoning? By dismantling each pillar slowly and systemically. The fundamental aim of this undermining and dismantling is to replace racial reasoning with moral reasoning, to understand the black freedom struggle not as an affair of skin pigmentation and racial phenotype but rather as a matter of ethical principles and wise politics, and to combat the black nationalist attempt to subordinate the issues and interests of black women by linking mature black self-love and self-respect to egalitarian relations within and outside black communities.”[22] Racial reasoning, which certainly occurs in great proportion, occurs, because racism flourishes––perhaps not overtly as say, 15 or 30 years ago; it might be reactionary, which would seem misguided. When one morally reasons, one is forced to ask difficult questions pertaining to problems of racism and gender, not as a reactionary within the confines of the dominant racist and patriarchal culture, but rather as a political and cultural critic operating from a vastly different framework to begin with.           

The sparse rights ambiguously mentioned in the Constitution, which may be universally claimed thanks in large measure to organized popular struggle of the masses in the 1900s, are not guarantees. “The First Amendment just restricts the government from specific encroachments; it doesn’t guarantee anything. This was not a concern for the people because they had strong bills of rights in their state constitutions, and at that time, the states had more power than the federal government.”[23] Generally, the federal Bill of Rights is referred to when questions of the protection of freedoms arise. For instance, the American Civil Liberties Union (ACLU) purports “to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”[24]

Edwards and Morgan explain. “If those rights were actually guaranteed in the Constitution, people could, for example, take the Bill of Rights into the workplace, but we can’t. Anyone who thinks workers have free speech while they’re on corporate property should ask the workers or talk to a union organizer. Because corporations are property, and because the Constitution protects property rights above all, most people have to abandon the Bill of Rights in order to make a living. The way different groups of people––like African Americans and women––have, one by one, acquired rights and become persons under the law is by getting protection from abuse by the government, usually through amendments to the Constitution––not a guarantee.”[25] [Emphasis original].

Originally, what was the function of a corporation? Edwards and Morgan again, quoted at length:

…In colonial times, corporations were tools of the king’s oppression, chartered for the purpose of exploiting the so-called “New World” and shoveling wealth back into Europe. The rich formed joint-stock corporations to distribute the enormous risk of colonizing the Americas and gave them names like the Hudson Bay Company, the British East India Company, and the Massachusetts Bay Colony. Because they were so far from their sovereign––the king––the agents for these corporations had a lot of autonomy to do their work; they could pass laws, levy taxes, and even raise armies to manage and control property and commerce.

So the writers of the Constitution left control of corporations to state legislatures (10^th Amendment), where they would get the closest supervision by the people. Early corporate charters were very explicit about what a corporation could do, how, for how long, with whom, where, and when. Corporations could not own stock in other corporations, and they were prohibited from any part of the political process. Individual stockholders were held personally liable for any harms done in the name of the corporation, and most charters only lasted for 10 or 15 years…in order to receive the profit-making privileges the shareholders sought, their corporations had to represent a clear benefit for the public good, such as building a road, canal, or bridge…when corporations violated any of these terms, their charters were frequently revoked by the state legislatures.

…the wealthy people increasingly started eyeing corporations as a convenient way to shield their personal fortunes. They could…see that their minority rule through property ownership was under serious threat of being diluted.[26]

Needless to say, corporations today resemble nothing like their classical predecessors.

In 1865, after years of bloody conflict between the states, congress ratified the 13^th Amendment, which essentially freed the slaves. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”[27] It is important to note, albeit obvious, that the institution of slavery was never fully abolished. Rather it has opened in another vein. We need only consider incarceration in the United States, whereby many whom are convicted, notwithstanding their guilt or innocence of crimes they are charged with and convicted for, or even the nature of these crimes themselves, (e.g., unprovoked violence against another human being, nonviolent drug offenses), are bonded by slavery or involuntary servitude. Upon release, should the prisoner be released and reintroduced to society, the brand of ex-convict is particularly debilitating to a reformed life––perhaps a remnant from the physical brand that slavers might have seared into the flesh of Africans in times past.

Incidentally, according to the U.S. Bureau of Justice Statistics, in the year 2009, “over 7.2 million people were under some form of correctional supervision”, including probation, prison, jail, or parole. In 1980, there were some 319,598 people in prison. As of 2009, that number has shot up to an estimated 1,524,513 people incarcerated in prison. Though the actual number might be higher, taking into account incarcerated women and adolescents, and those imprisoned who have been convicted of less serious offenses.[28] Arguably, the United States incarcerates more people than any other country.

According to the Sentencing Project, a national organization which advocates for a fair and effective criminal justice system by promoting reforms in sentencing law and alternatives to incarceration, the 2.3 million people currently in U.S. prisons or jails, an estimated 500% increase over the past thirty years largely due to sentencing laws, represents a systemic problem. There is rampant prison overcrowding and state governments are “overwhelmed by the burden of funding a rapidly expanding penal system, despite increasing evidence that large-scale incarceration is not the most effective means of achieving public safety.” Furthermore, the racial disparity in incarceration is indicative of an institutional racism with roots in American slavery, Reconstruction, and beyond. “More than 60% of the people in prison are now racial and ethnic minorities. For Black males in their twenties, 1 in every 8 is in prison or jail on any given day. These trends have been intensified by the disproportionate impact of the ‘war on drugs,’ in which three-fourths of all persons in prison for drug offenses are people of color.”

Moreover, sentencing policies, namely mandatory and so-called “three strike” sentencing laws, “brought about by the ‘war on drugs’ resulted in a dramatic growth in incarceration for drug offenses. At the Federal level, prisoners incarcerated on a drug charge comprise half of the prison population, while the number of drug offenders in state prisons has increased thirteen-fold since 1980. Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense.” Additionally, “an estimated 5.3 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions. Felony disenfranchisement is an obstacle to participation in democratic life which is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of Black men unable to vote.” Incidentally, from a perspective of strict adherence to the Constitution, arguably the prohibition of people with felony convictions to vote is in violation of the 15^th amendment. The increased incarceration rate of women and juveniles is equally, if not more disturbing, and seemingly follows the overall trend of the prison industrial complex.

A felony conviction, namely for nonviolent drug offenses, greatly impacts the possibility of gaining employment, receiving welfare benefits, access to public housing, and eligibility for student loans to pursue higher education.[29] The social and economic repercussions of the prison industrial complex are related to the social and economic consequences of American slavery. It is also important to mention that since the late 1980s there have been 281 known DNA exonerations of people wrongfully convicted in the US according to Mother Jones. Inferring from this data, “a conservative estimate is that 1 percent of the US prison population, approximately 20,000 people, are falsely convicted.” Furthermore, “since the late 1980s there have been as many as 850 exonerations nationwide, according to University of Michigan law professor Samuel Gross, a leading researcher in the field.”[30] The privatization of the industrial prison system, and the role of the corporation with regard to the management of human beings as prisoners, shall have to be put aside, though it is certainly important to understand and worth looking at.

The 14^th amendment passed by congress in 1866 and ratified in 1868, provided citizenship rights to all persons born or naturalized in the United States. “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.”[31] The 15^th amendment, passed by congress in 1869 and ratified in 1870, provided that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”.[32]

Edwards and Morgan specify that the phrasing in the 14^th amendment “about not depriving any person of life, liberty, or property without the due process of the law is exactly the same wording as the Fifth Amendment, which protects people from that kind of abuse by the federal government”. The expansion of corporate protection from that kind of abuse, so-called, was further geared towards the states. “These are important rights; they’re written in a short, straightforward manner; and after the Civil War and all the agony over slavery, the people in the states that ratified the 13^th, 14^th, and 15^th Amendments were clear that they were about righting the wrong of slavery.”[33] Slavery, “the legalization of a lie––that one human being can own another…was at the core of a whole system of oppression that benefitted the few, which included the subjugation of women, genocide of the indigenous population, and exploitation of immigrants and the poor.”[34] A new, legalization of a lie was required by the elite class for their minority rule. The definition of “person” in the 14^th amendment became the bedrock of that lie.  
 

Edwards and Morgan assert that the “watershed moment came in 1886 when the Supreme Court ruled on a case [concerning taxes, not corporate personhood] called Santa Clara County v. Southern Pacific Railroad.”[35] Before the court’s final decision on the case was announced, Chief Justice Waite is attributed as stating: “The court does not wish to hear argument on the question whether the provision in the 14^th Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Apparently, albeit controversially so, John Chandler Bancroft Davis, a reporter of the U.S. Supreme Court, and former president of the Newburgh & New York Railroad, added commentary in the headnotes to the case of Santa Clara County v. Southern Pacific Railroad that essentially defined a corporation as a legal person. He is reported as transcribing, in his own words, Justice Waite’s oral statement of opinion mentioned above, in the headnotes thusly: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.”[36]

Interestingly, there appears to be a letter from Supreme Court Chief Justice Morrison Remick Waite to court reporter J.C. Bancroft Davis, which was uncovered in the National Archives only recently, “informing Davis that it didn't really matter whether or not he included a comment about the arguments before the court that corporations were persons.” Justice Waite wrote to Davis: "I think your mem. in the California Rail Road tax cases expresses with sufficient accuracy what was said before the arguments began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the Constitutional question in the decision."[37] 

In 1889, the Supreme Court ruled that a corporation is a “person” for both due process and equal protection, in the decision of Minneapolis & St. Louis Railroad v. Beckwith. The next step for corporate lawyers after successfully alleging “discrimination whenever a state law was enacted to curtail corporations” was to allege the same on the federal level. The beginning of federal regulatory agencies coincided with these precedents, which are now considered firmly established constitutional law. Because corporations were granted the status of persons under the 14^th amendment, “it would be discriminatory not to give them the same rights under federal laws. With the granting of the 5^th Amendment right to due process (Noble v. Union River Logging, 1893), corporate lawyers could challenge––and the Supreme Court could find grounds to overturn––democratically legislated laws that originated at the federal as well as state levels.”[38]

At a time when women, Native Americans, and most African American men were still denied the right to vote, corporations acquired legal personhood. In Plessy v. Ferguson, 1896, the Supreme Court striped African Americans of their legal personhood rights, ruling to legalize racial segregation based on the so-called “separate but equal” doctrine encompassed in the “Jim Crow” laws. If there is any question that “the primary purpose of the Constitution and the body of law it spawned is about protecting property rather than people” one would need only consider that 288 of the cases brought before the Supreme Court between 1890 and 1910 dealt with corporations, while a mere 19 dealt with African Americans. Edwards and Morgan explain: “Of the hundreds of 14^th Amendment cases heard in the Supreme Court in the first 50 years after its adoption, less than one-half of one percent invoked it in protection of African Americans, and more than 50% asked that its benefits be extended to corporations. ‘Equal protection under the law’ [means] whoever has enough money to go to the Supreme Court to fight for it. Railroad robber barons did; women didn’t; and African Americans most certainly didn’t. In fact, the pattern over more than two centuries of US legal history is that people acquire rights by amendment to the Constitution…and corporations acquire them by Supreme Court decisions.”[39]

Edwards and Morgan offer a summary of the history of Supreme Court precedents that have given so much power to corporations. “In 1906 [corporations] got 4^th Amendment search and seizure protection (Hale v. Henkel). In 1922 they got the ‘takings’ clause of the 5^th Amendment (Pennsylvania Coal Co. v. Mahon), and a regulatory law was deemed to be ‘takings.’ In 1947 they started getting First Amendment protections (Taft-Hartley Act). In 1976 the Supreme Court determined that money spent for political purposes is equal to exercising free speech, and since ‘corporate persons’ have First Amendment rights, they can basically contribute as much money as they want to political parties and candidates (Buckley v. Valeo). Every time ‘corporate persons’ acquire one of these protections under the Bill of Rights, it gives them a whole new way of exploiting the legal system in order to maintain minority rule through corporate power. And since 1886, every time people have won new rights––like the Civil Rights Act––corporations are eligible for it, too.”[40]

There are certainly many more relevant examples, some much more recent. One such example is Citizens United v. Federal Election Commission, 2010. This particular case basically granted an extension of corporate powers (for the term rights seems a misnomer on this point as well as many others), namely that of what is called “electioneering communication”, which is really a dressed up phrase for corporate political spending on elections by way of media advertisements; which is further to say, the corporate buying of political elections. Noam Chomsky, emeritus professor of linguistics at the Massachusetts Institute of Technology, states that “the U.S. Supreme Court ruled that the government may not ban corporations from political spending on elections—a decision that profoundly affects government policy, both domestic and international.” Chomsky continues, observing that the nine panel “court was split, 5-4, with the four reactionary judges (misleadingly called ‘conservative’) joined by Justice Anthony M. Kennedy. Chief Justice John G. Roberts Jr. selected a case that could easily have been settled on narrow grounds and maneuvered the court into using it to push through a far-reaching decision that overturns a century of precedents restricting corporate contributions to federal campaigns.”[41]

The editors of the New York Times expressed: “The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie [produced by Citizens United] that attacked Hillary Rodham Clinton during the 2008 campaign.” Notably, the editors convey that “[m]ost wrongheaded of all is [the court’s] insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.”[42]

In dissent of the Citizens United v. Federal Election Commission ruling, Justice John Paul Stevens stated: “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” Remarkably, Justice Stevens acknowledged that even though “they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”[43] [Emphasis added]. 

It would be prudent to again ask the question, what is a corporation? Edwards and Morgan tender an illustrative answer.

A corporation is not a real thing; it’s a legal fiction, an abstraction…it’s just an idea that people agree to and put into writing. Because legal personhood has been conferred upon an abstraction that can be redefined at will under law, corporations have become superhumans in our world. A corporation can live forever. It can change its identity in a day. It can cut off parts of itself––even its head––and actually function better than before. It can also cut off parts of itself and from those parts grow new selves. It can own others of its own kind and it can merge with others of its own kind. It doesn’t need fresh air to breath or clean water to drink or safe food to eat. It doesn’t fear illness or death. It can have simultaneous residence in many different nations. It’s not male, female, or even transgendered. Without giving birth it can create children and even parents. If it’s found guilty of a crime, it cannot go to prison.[44]

In articulating his dissenting opinion of the ruling of Citizens United v. Federal Election Commission, Justice Stevens cites UCLA Law professor Julian Eule. “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”.[45]

Renowned 20^th century innovator and theorist R. Buckminster Fuller wrote: “Corporations are neither physical nor metaphysical phenomena. They are socioeconomic ploys — legally enacted game-playing — agreed upon only between overwhelmingly powerful socioeconomic individuals and by them imposed upon human society and its all unwitting members.”[46]

Edwards and Morgan once more: “When the Constitution was written and corporations were part of the government, having duties to perform to the satisfaction of the people, the primary technique for enforcing minority rule was to establish that only a tiny percentage could qualify as ‘We the People’––in other words, that most people were subhuman. As different groups of people struggled to become persons under the law, the corporation acquired rights belonging to We the People and ultimately became superhuman, still maintaining an artificially elevated status for a small number of people.”[47] [Emphasis original].

With globalization, so-called, this perfected doctrine has enfolded the world. US imperialism may be masked as capitalism––though a real free-market system has not, and does not exist––and trumpeted as the pinnacle of civilization and the human experience. This is farce. Reality, should we be bothered with the real word, has an observably different narrative. “The concepts, laws, and techniques perfected by the ruling minority here, [have been and are] being forced down the throats of people everywhere. First, a complicit ruling elite is co-opted, installed, or propped up by the US military and the government. Then, just as slavery and immigrant status once kept wages nonexistent or at poverty levels, now sweatshops, maquiladoras [factories run by U.S. companies in Mexico], and the prison-industrial complex provide ultra-cheap labor with little or no regulation.”[48]

Once again, Edwards and Morgan quoted at length, for their observations are crucial:

Just as sharecropping and the company store once kept people trapped in permanently subservient production roles, now the International Monetary Fund and World Bank’s structural adjustment programs keep entire countries in permanent debt, the world’s poorest people forced to feed interest payments to the world’s richest while their own families go hungry. Just as genocide was waged against native populations that lived sustainably on the land, now wars are instigated against people and regimes that resist the so-called ‘free trade’ mantra because they have the audacity to hold their own ideas about governance and resource distribution. Racism, sexism, classism, homophobia, and divisive religious, ethnic, ideological, and cultural distrust were all intentionally instituted to prevent people from making common cause against the ruling minority, and those systems continue their destructive work today.[49]

Personally, one might be inclined to abdicate corporate speech, so-called, and rightfully so. If corporations were made to shut up, or at the very least, if their screaming and menacing voices were significantly diminished, maybe then we could begin to develop and hear our own, true selves, as well each other. Corporate tyranny is real, notwithstanding the manufactured illusion that corporate rule is beneficent, normal, and acceptable. If corporations are found to be illegitimate, and certainly a strong case might be, and has long been made that this is true, one arrives at the conclusion that real oppression is done against flesh and blood human beings, against flesh and blood nonhumans, and against the natural world. In fact, even if one maintained that corporations are legitimate, beneficent, normal, and acceptable, the aforementioned would be true. The culprits are corporations and occupant governments alike. It is a toxic mimic, to articulate the least, of grand proportion that corporations, and the ruling class in general, claim oppression by the very government that they largely occupy and dominate. Political, economic, social and cultural life is by and large defined, produced, and controlled by a minority; the conduits being the corporate-governmental institutions in the totalitarian system itself. To this end, the 55 white men that incorporated the United States over 220 years ago, had achieved what they set out to achieve.

In the words of Madison:

The internal effects of a [changeable] policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are [publicized], or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined as a rule of action; but how can that be a rule, which is little known, and less fixed?[50]  

This is rather remarkable, given that, arguably, laws are not made by men and women chosen by the majority people. Just as elected and appointed officials are not decided by the general populace. Moreover, laws are often so voluminous and incoherent that they cannot be read or understood by the general public, let alone, in many cases, by the lawmakers, adjudicators, and regulators and enforcers of laws themselves.

Madison again: “Another effect of public instability is the unreasonable advantage [law] gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.”[51] [Emphasis original].   

There are encouraging developments.

On Nov 16, 2010, the City of Pittsburgh passed ordinance banning the industrial action of “fracking” or hydraulic fracturing, which is a destructive and poisonous process of extracting natural gas deep into the earth. Fracking is “a technique first tried in Texas, and which is now being used in Pennsylvania [as well as many other states], where the Marcellus Shale geological formation, a source of natural gas, is buried over a mile down.” Councilman Doug Shields sponsored the ordinance, and ultimately was joined by five co-sponsors. The fight is about much more than drilling. “It’s about our authority as a community to decide, not corporations deciding for us” Councilman Shields stated.

Within the span of “the last decade more than a hundred cities and towns across the country have passed ordinances putting citizens' rights ahead of corporate interests”, including banning “businesses from dumping toxic sludge, building factory farms, mining, and extracting water for bottling.” Fewer, “have also refused to recognize corporations as people.”[52] According to the Free Speech for People campaign’s website, as of February 2011, there have been no less than five state resolutions introduced in support of amending the Constitution to actually reflect protections of flesh and blood people and not corporations. Moreover, in April and May alone, there have been nine town resolutions introduced similarly, just in the state of Massachusetts.[53] 

A year to the date of the ruling of Citizens United v. Federal Election Commission, democrat Vermont State Senator Virginia V. Lyons, along with 10 cosponsors, all democrats, introduced J.R.S. 11, “urging the United States Congress to propose an amendment to the United States Constitution for the states’ consideration which provides that corporations are not persons under the laws of the United States or any of its jurisdictional subdivisions.” Four proclamations of the resolution are worth mentioning for the weight of underscored significance. Firstly, “Whereas, the profits and institutional survival of large corporations are [arguably, always] in direct conflict with the essential needs and rights of human beings”. Second, “Whereas, large corporations have used their so-called rights to successfully seek the judicial reversal of…enacted laws passed at the municipal, state, and federal levels aimed at curbing corporate abuse”. Third, “Whereas, these judicial decisions have rendered…elected governments ineffective in protecting their citizens against corporate harm to the environment, health, workers, independent business, and local and regional economies”. And lastly, “Whereas, large corporations own most of America’s mass media and employ those media to loudly express the corporate political agenda and to convince Americans that the primary role of human beings is that of consumers rather than sovereign citizens with democratic rights and responsibilities”.[54]

The Declaration of the Occupation of New York City is quite insightful. In part, the opening reads:  “We come to you at a time when corporations, which place profit over

people, self-interest over justice, and oppression over equality, run our governments.” Of the many legitimate grievances that Occupy Wallstreet at Liberty Square (Zuccotti Park) has initially published, all irrefutably concise and based on fact, I shall limit quoting to merely one. Corporations “have influenced the courts to achieve the same rights as people, with none of the culpability or responsibility.”[55] 

On December 8, 2011, Senator Bernie Sanders (I-VT) introduced S. J. RES. 33, a proposed amendment to the U.S. Constitution, “to expressly exclude for-profit corporations from the rights given to natural persons by the Constitution of the United States, prohibit corporate spending in all elections, and affirm the authority of Congress and the States to regulate corporations and to regulate and set limits on all election contributions and expenditures.” As of this writing, the resolution currently has one cosponsor, Mark Begich [D-AK] and is being considered by the Senate Judiciary committee.[56]

Corporate rule, or perhaps neo-fascism is a more operant term, must be abolished. If it is allowed to continue mostly unabated, within the span of a generation, or perhaps in a measurably smaller length of time, life will be a lot worse, if not outright ended, for a great many more human and nonhuman beings than at present.

NOTES: