Alternatively, Davis may have acted on his own initiative. This was no ordinary court reporter. He was well connected to the levers of power in his world, which in 1880s America were principally the railroads, and he himself had served as president of the board of a railroad company.
Regardless of how it happened, an amendment to the Constitution, designed to protect the rights of African Americans after the Civil War, passed by Congress, voted on and ratified by the states, and signed into law by the president, was reinterpreted in 1886 for the benefit of corporations. The notion that corporations are persons has never been voted into law by the people or by Congress, and all the court decisions endorsing it derive from the precedent of the 1886 case—from Davis’s error.
Other legal errors have been corrected with time. The notions that women aren’t persons under the law (affirmed, for example, in the 1873 Bradwell v. Illinois case) and that blacks aren’t entitled to equal protection (decided in the Dred Scott v. Sanford and Plessy v. Ferguson cases) were superseded by court cases affirming the full rights of women and African Americans under the law. The establishment of corporate personhood, on the flimsy foundation of a court reporter’s insertion of a phrase into a legal summary, may be the next mistake to be corrected, particularly if grassroots efforts continue to challenge the legitimacy of corporate personhood.
Adapted from Unequal Protection: How Corporations
Became “People”—and How You Can Fight Back
by Thom Hartmann, © 2010, published by Berrett-Koehler.
Wal-Mart Is Not a Person
From Rebooting the American Dream: 11 Ways to Rebuild Our Country
The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
—JOHN STUART MILL
IN 2003, AFTER MY BOOK UNEQUAL PROTECTION WAS FIRST PUBlished, I gave a talk at one of the larger law schools in Vermont. Around 300 people showed up, mostly students, with a few dozen faculty and some local lawyers. I started by asking, “Please raise your hand if you know that in 1886, in the Santa Clara County v. Southern Pacific Railroad Company case, the Supreme Court ruled that corporations are persons and therefore entitled to rights under the Constitution and the Bill of Rights.”
Almost everyone in the room raised their hand, and the few who didn’t probably were new enough to the law that they hadn’t gotten to study that case yet. Nobody questioned the basic premise of the statement.
And all of them were wrong.
We the People are the first three words of the Preamble to the Constitution; and from its adoption until the Robber Baron Era in the late nineteenth century, people meant human beings. In the 1886 Santa Clara case, however, the court reporter of the Supreme Court proclaimed in a “headnote”—a summary or statement added at the top of the court decision, which is separate from the decision and has no legal force whatsoever—that the word person in law and, particularly, in the Constitution, meant both humans and corporations.
Thus began in a big way (it actually started a half century earlier in a much smaller way with a case involving Dartmouth University) the corruption of American democracy and the shift, over the 125 years since then, to our modern corporate oligarchy.
Most recently, in a January 2010 ruling in Citizens United v. Federal Election Commission, the Supreme Court, under Chief Justice John G. Roberts, took the radical step of overturning more than a hundred years of laws passed by elected legislatures and signed by elected presidents and declared that not only are corporations “persons” but that they have constitutional rights such as the First Amendment right to free speech.
This decision is clear evidence of how far we have drifted away as a nation from our foundational principles and values. Particularly since the presidency of Ronald Reagan, over the past three decades our country and its democratic ideals have been hijacked by what Joseph Pulitzer a hundred years ago famously called “predatory plutocracy.”
The Citizens United decision, which empowers and elevates corporations above citizens, is not just a symbolic but a real threat to our democracy, and only the will of We the People, exercised through a constitutional amendment to deny personhood to corporations, can slay the dragon the Court has unleashed.
The “Disadvantaged” Corporation
In 2008 a right-wing group named Citizens United put together a 90-minute “documentary,” a flat-out hit-job on Hillary Clinton (then a senator and presidential aspirant) and wanted to run commercials promoting it on TV stations in strategic states. The Federal Election Commission (FEC) ruled that the movie and the television advertisements promoting it were really “campaign ads” and stopped them from airing because they violated McCain-Feingold (aka the Bipartisan Campaign Reform Act of 2002), which bars “independent expenditures” by corporations, unions, or other organizations 30 days before a primary election or 60 days before a general election. (Direct corporate contributions to campaigns of candidates have been banned repeatedly and in various ways since 1907, when Theodore Roosevelt pushed through the Tillman Act, which made it a felony for a corporation to give money to a politician for federal office; in 1947 the Taft-Hartley Act extended this ban to unions.)
McCain-Feingold was a good bipartisan achievement by conservative senator John McCain and liberal senator Russ Feingold to limit the ability of corporations to interfere around the edges of campaigns. The law required the “I’m John McCain and I approve this message” disclaimer and limited the amount of money that could be spent on any federal politician’s behalf in campaign advertising. It also limited the ability of multimillionaires to finance their own elections.
But the law offended the members of the economic elite in this country who call themselves “conservatives” and believe that they should be able to spend vast amounts of money to influence electoral and legislative outcomes.
The Conservative Worldview
In part, this belief is derived from a more fundamental—and insidious—belief that political power in the hands of average working people is dangerous and destabilizing to America; this is the source of the antipathy of such conservatives to both democracy and labor unions. They believe in “original sin”—that we’re all essentially evil and corruptible—and therefore it’s necessary for a noble, well-educated, and wealthy (male) elite, working behind the scenes, to make the rules for and run our society.
Among the chief proponents of this Bible-based view of the errancy of average working people are the five right-wing members of the current US Supreme Court—John Roberts, Samuel Alito, Clarence Thomas, Antonin Scalia, and Anthony Kennedy—who have consistently worked to make America more hierarchical, only with a small, wealthy “conservative/corporate” elite in charge instead of a divinely ordained Pope.
And even though the Citizens United case—which landed in the Supreme Court’s lap after the federal court in Washington, DC, ruled in favor of the FEC ban—was only about a small slice of the McCain-Feingold law, the Republican Five used it as an opportunity to make a monumental change to constitutionally empower corporations and undo a century of legal precedents.
After listening to oral arguments in early 2009, the Roberts Court chose to ignore those arguments and the originally narrow pleadings in the case, expanded the scope of the case, and scheduled hearings for September of that year, asking that the breadth of the arguments include reexamining the rationales for Congress to have any power to regulate corporate “free speech.”
In this they were going along with a request from Theodore B. “Ted” Olson, the solicitor general under George W. Bush, and would now go back to reexamine and perhaps overturn the Court’s own precedent in the Austin v. Mich
igan Chamber of Commerce case of 1990. In that case the Court held that it was constitutional for Congress to place limits on corporate political activities; and in a 2003 case, the Court (before the additions of Alito and Roberts) had already upheld McCain-Feingold as constitutional.1
Thus, on January 21, 2010, in a 5-to-4 decision, the Supreme Court ruled in the Citizens United case that it is unconstitutional for Congress to approve, or the president to sign into law, most restrictions on the “right” of a corporate “person” to heavily influence political campaigns so long as they don’t directly donate to the politicians’ campaign or party.
The majority decision, written by Justice Kennedy at the direction of Chief Justice Roberts, explicitly states that the government has virtually no right to limit corporate power when it comes to corporate “free speech.”2
Kennedy began this line of reasoning by positing, “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”
It sounds reasonable. He even noted, sounding almost like Martin Luther King Jr. or John F. Kennedy, that:
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.
But who is that “disadvantaged person or class” of whom Kennedy was speaking? His answer is quite blunt (the parts in single quotation marks are where he is quoting from previous Supreme Court decisions): “The Court has recognized that First Amendment protection extends to corporations…. Under that rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”
Two sentences later he nails it home: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’” (Historically, natural persons has been the term for humans under both British common law and American constitutional law; corporations, churches, and governments are referred to as artificial persons.)
Bemoaning how badly corporations and their trade associations (like the US Chamber of Commerce, the nation’s leading front-group player in both national and local politics for decades and the number one lobbyist in terms of spending) had been treated by the Congress of the United States for more than a hundred years, Kennedy stuck up for the “disadvantaged” corporate “persons” the Roberts Court was seeking to protect:
The censorship we now confront is vast in its reach. The Government has “muffled the voices that best represent the most significant segments of the economy.” And “the electorate has been deprived of information, knowledge, and opinion vital to its function.” By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
By reinterpreting the Fourteenth Amendment, which says that no “person” (the amendment’s authors didn’t add the word natural because it was written to free the slaves after the Civil War, so they figured person was sufficient) shall be denied equal protection under the law, the Roberts Court turned American democracy inside out. “We the People” now explicitly means “We the Citizens, Corporations, and Churches” with a few of the richest humans who run them thrown in.
Such a view is antithetical to how the Framers of our Constitution viewed corporations.
A Historical Perspective
The Founders of this nation were so wary of corporate power that when the British Parliament voted to give a massive tax break—through the Tea Act of 1773—to the East India Company on thousands of tons of tea it had in stock so that the company could wipe out its small, entrepreneurial colonial competitors, the colonists staged the Boston Tea Party.
This act of vandalism against the world’s largest transnational corporation, destroying more than a million dollars’ worth (in today’s money) of corporate property, led the British to pass the Boston Port Act of 1774, which declared the Port of Boston closed to commerce until the city paid back the East India Company for its spoiled tea. It was an economic embargo like we declared against Cuba, Iraq, and Iran, and it led the colonists straight into open rebellion and the Revolutionary War.
Thus the Framers of our Constitution intentionally chose to not even use the word corporation in that document, as they wanted business entities and churches to be legally established at the state level, where local governments could keep an eye on them.
Throughout most of the first 100 years of our nation, corporations were severely restricted so that they could not gain too much power or wealth. It was illegal for a corporation to buy or own stock in another corporation, to engage in more than one type of business, to participate in politics, and to even exist for more than 40 years (so that the corporate form couldn’t be used by wealthy and powerful families to amass great wealth in an intergenerational way and avoid paying an estate tax).
All of that came to an end during the “chartermongering” era of the 1890s when, after Ohio prepared to charge John D. Rockefeller with antitrust and other violations of the corporate laws of that state, he challenged other states to broaden and loosen their laws regarding corporate charters. A competition broke out among, primarily, Connecticut, New Jersey, New York, and Delaware, which Delaware ultimately won by enacting laws that were the most corporate-friendly in the nation. This is the reason why today more than half of the NYSE-listed companies are Delaware corporations.
In addition, the largest corporations of the era—the railroads—began a relentless campaign in the 1870s that reached its zenith in 1886, claiming that as “corporate persons” they should have “rights” under the Bill of Rights in the Constitution. That zenith was the Santa Clara County v. Southern Pacific Railroad Company case, where the Supreme Court did not rule that corporations are persons, but the court reporter claimed it had, establishing language that was cited repeatedly in subsequent Court decisions ratifying this newly found “corporate personhood” doctrine and cementing it into law.
A Patriotic Dissent
When the Republican Five on the Supreme Court ruled in the Citizens United case and handed to corporations nearly full human rights of free speech, it didn’t come out of the blue. Although no bill in Congress from the time of George Washington to Barack Obama had declared that corporations should have these “human rights” (to the contrary, multiple laws had said the opposite), and no president had ever spoken in favor of corporate human rights, the five men in the majority on the Supreme Court took it upon themselves to hand our country over to the tender mercies of the world’s largest transnational corporations.
The Court’s Minority Pushes Back
This didn’t sit well with the other four members of the Supreme Court.
Justice John Paul Stevens, with the concurrence of Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, wrote the dissenting opinion in the Citizens United case.
Calling the decision “misguided” in the first paragraph of the 90-page dissent, Stevens (and his colleagues) pointed out that the Court majority had just effectively handed our country over to any foreign interest willing to incorporate here and spend money on political TV ads.
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporati
ons controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., corporations).
In the same paragraph, Stevens further points out the absurdity of granting corporations what are essentially citizenship rights under the Constitution, suggesting that perhaps the next Court decision will be to give corporations the right to vote: “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.”
Quoting earlier Supreme Court cases and the Founders, Stevens wrote: “The word ‘soulless’ constantly recurs in debates over corporations … Corporations, it was feared, could concentrate the worst urges of whole groups of men.” Thomas Jefferson famously fretted that corporations would subvert the republic.
And, Stevens reasoned, the Founders could not have possibly meant to confer First Amendment rights on corporations when they adopted the Constitution in 1787 and proposed the Bill of Rights in 1789 because, “All general business corporation statutes appear to date from well after 1800”:
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.
The Thom Hartmann Reader Page 29