"Gary Stein" <ge.stein@verizon.net> wrote in message news:<_fJDc.9505$x9.7584@nwrddc02.gnilink.net>...
But corporations are people.
http://en.wikipedia.org/wiki/Corporate_personhood
Corporate personhood is a term used to describe United States law that
allows corporations to have "inalienable rights" (sometimes called
constitutional rights) just like (human) persons. See also legal
entity. The choice of the word "person" in "personhood" arises from
the way the 14th Amendment to the United States Constitution was
worded and from earlier legal usage of the word "person."
In the United States of America all natural persons (actual human
beings) are recognized as having inalienable rights. These rights are
recognized, among other places, in the United States Bill of Rights
and the Fourteenth Amendment.
The notion that corporations are also "persons" like "natural persons"
is a legal fiction. Corporate constitutional rights effectively
invert the relationship between the government and the corporations.
Recognized as persons, corporations lose much of their status as
subjects of the government. Although artificial creations of their
owners and the governments, as legal persons they have a degree of
immunity to government supervision. U.S. corporations are endowed with
the court-recognized right to influence both elections and the
law-making process.
History of corporate personhood
Corporations were detested by the colonial rebels in 1776 when the
Declaration of Independence severed the States from Great Britain.
There had been only a few corporations in colonial America, but they
had been very powerful. The Dutch West India Company had founded New
York. Corporations had effectively governed Virginia, Maryland and
North and South Carolina. The political history of the colonies up
until 1776 was largely one of conflict between citizens trying to
establish rule by elected government and the corporations or King
ruling through appointed governors.
The new nation or confederation of 13 sovereign states had few native
business corporations. The corporations that survived the revolution
were mainly non-profit institutions such as colleges (Dartmouth
College v. Woodward 17 U.S. 518 1819). There was not a single bank in
the United States until 1780. Most of that first bank's stock was
owned by the confederate (what we would later call Federal)
government, and the bank's charter was revoked in 1785. "The agrarian
charges were numerous... the bank was a monstrosity, an artificial
creature endowed with powers not possessed by human beings and
incompatible with the principles of a democratic social order."
(Hammond, Bray , Banks and Politics in America from the Revolution to
the Civil War (Princeton: Princeton University Press, 1991), pp.
48-54) By 1790 four banks had been granted corporate charters by
states, but these banks were not originally purely private
institutions. They served as financial institutions for the states
that chartered them. (Ibid. 65-67)
The federal Constitution of 1788 did not mention corporations at all.
But in the late 1700s and early 1800s corporations began to be
chartered by the states. This was not without opposition. Thomas
Jefferson said, "I hope we shall crush in its birth the aristocracy of
our moneyed corporations which dare already to challenge our
government in a trial of strength, and bid defiance to the laws of our
country."
Like the banks, other early corporations were closely supervised by
the state legislatures that granted their charters. When the United
States Supreme Court in Dartmouth College v. Woodward 17 U.S. 518
1819, ruled that Dartmouth's charter granted in 1769 by King George
III was a contract and could not be revoked by the New Hampshire
legislature, a public outcry ensued. State courts and legislatures,
supported by the people, declared that state governments had an
absolute right to amend or repeal a corporate charter. (Richard L
Grossman and Frank T. Adams, Taking Care of Business, Citizenship and
the Charter of Incorporation (Cambridge: Charter, Ink., 1993), p.
11-12)
Until the late 1800s corporations were not considered persons, but
artificial creations of their owners and the state legislatures, that
possessed privileges, not rights. They were subject to all of the laws
of the land as well as any restrictions placed in their charters. But
wealthy business people have since used the Federal government,
particularly the courts, to get their corporations out from under the
control of the states and their citizens.
During the 1800s the United States went through an enormous economic
expansion, sometimes called the Industrial Revolution, but that term
is misleading. The United States expanded geographically by grabbing
native American Indian territories formerly claimed by France, Great
Britain, and Mexico. The population exploded. Farm production
exploded, and international trade exploded, with U.S. grain feeding
both growing U.S. cities and Europe. Manufacturing in the U.S.,
protected by tariffs from British competition, also progressed
rapidly. The favored form for large businesses became the corporation.
And as these corporations came to dominate business life, they also
began to dominate America's politicians, lawyers, courts and culture.
The Civil War accelerated the growth of manufacturing and the power of
the men who owned the corporations. After the war corporations began a
campaign to throw off the legal shackles that had held them in check.
The systematic bribing of Congress was instituted by Mark Hanna, sugar
trust magnate Henry Havemeyer, and Senator Nelson Aldrich and their
associates. (Jonathan Shepard Fast and Luzviminda Bartolome Francisco,
Conspiracy For Empire, Big Business, Corruption and the Politics of
Imperialism in America, 1876-1907 (Quezon City, Foundation for
Nationalist Studies, 1985), p. 92-97) Most Supreme Court judges who
were appointed were former corporate lawyers.
In 1886 the supreme court justices were Samuel F. Miller, Stephen J.
Field, Joseph P. Bradley, John M. Harlan, Stanley Matthews, William B.
Woods, Samuel Blatchford, Horace Gray, and chief justice Morrison. R.
Waite. These men subjected African Americans to a century of Jim Crow
discrimination, particularly in the Civil Rights Cases 109 US 3 1883;
they made corporations into a vehicle for the wealthy elite to control
the economy and the government; they vastly increased the power of the
Supreme Court itself over elected government officials. In all
fairness, Justice Harlan dissented from the infamous decision Plessy
v. Ferguson 163 U.S. 537 1896, which, as he said, effectively denied
the protection of the 14th Amendment to the very group of people
(former slaves and their descendants) for whom it was designed.
In 1868 the 14th Amendment to the United States Constitution had
become law. Section 1 of that Amendment states:
SECTION 1. 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.
"The one pervading purpose... [of the 14th Amendment] was the freedom
of the slave race, the security and firm establishment of that
freedom, and the protection of the newly-made freeman and citizen from
the oppression of those who had formerly exercised unlimited dominion
over him." That is exactly what Justice Samuel F. Miller said in 1873
in one of the first Supreme Court opinions to rule on the 14th
Amendment. (83 U.S. 36, 81 (1873))
But the wealthy, powerful men who owned corporations wanted more power
for their corporations. Their lawyers came up with the idea that
corporations, which might be said to be groups of persons (though one
person might in turn belong to (own stock in) many corporations),
should have the same constitutional rights as persons themselves. If
they could get the courts to agree that corporations were persons,
they could assert that the States, which had chartered the
corporations, would then be constrained by the 14th Amendment from
exercising power over the corporations.
Beginning in the 1870s corporate lawyers began asserting that
corporations were persons with many of the rights of natural persons.
It should be understood that the term "artificial person" was already
in long use, with no mistake that corporations were claiming to have
the rights of natural persons. "Artificial person" was used because
there were certain resemblances, in law, between a natural person and
corporations. Both could be parties in a lawsuit; both could be taxed;
both could be constrained by law. In fact the corporations had been
called artificial persons by courts in England as early as the 16th
century because lawyers for the corporations had asserted they could
not be convicted under the English laws of the time because the laws
were worded "No person shall..."
The need to be freed from legislative and judicial constraints,
combined with the use of the word "person" in the U.S. Constitution
and the concept of the "artificial person," led to the argument that
these "artificial persons" were "persons" with an inconsequential
"artificial" adjective appended. If it could be made so, if the
courts would accept that corporations were among the "persons" talked
about by the U.S. Constitution, then the corporations would gain
considerably more leverage against legal restraint.
These arguments were made by corporate lawyers at the State level, in
court after court, and many judges, being former corporate attorneys
and usually at least moderately wealthy themselves, were sympathetic
to any argument that would strengthen corporations. There was a
national campaign to get the legal establishment to accept that
corporations were persons. This cumulated in the Santa Clara decision
of 1886, which has been used as the precedent for all rulings about
corporate personhood since then.
Though it is not yet clear who hatched this plan or where the campaign
began, the early cases mainly concerned railroads. In the late 1800s
railroads were the most powerful corporations in the country. Most of
the nation's farmers were dependent on them to haul their produce;
even the manufacturing corporations were at their mercy when they
needed coal, iron ore, finished iron, or any other materials
transported. That the lawyers for the railway corporations had planned
a national campaign to make corporations full, unqualified legal
persons is demonstrated by the Supreme Court making several decisions
in which this was an issue in 1877. In four cases that reached the
Supreme Court (94 U.S. 155, 94 U.S. 164, 94 U.S. 179, 94 U.S. 180
(1877)) it was argued by the railroads that they were protected by the
14th Amendment from states regulating the maximum rates they could
charge. In each case the Court did not render an opinion as to whether
corporations were persons covered by the 14th Amendment. Bypassing
that issue, they said that the 14th Amendment was not meant to prevent
states from regulating commerce.
Similarly, in 1877, in Munn v. Illinois 94 U.S. 113 1876, the Supreme
Court decided that the 14th Amendment did not prevent the State of
Illinois from regulating charges for use of a business's grain
elevators, ignoring the question of whether Munn & Scott was a person.
Later, in Northwestern Nat Life Ins. Co. v. Riggs 203 U.S. 243 1906,
having accepted that corporations are people, the court still ruled
that the 14th Amendment was not a bar to many state laws that
effectively limited a corporations right to contract business as it
pleases.
Calling silence a victory, from 1877 to 1886 corporate lawyers assumed
that corporations were persons, and their opponents argued that they
were not. In Santa Clara County v. Southern Pacific Railroad Company
(118 U.S. 394 (1886)), at the lower court levels the question of
whether corporations were persons had been argued, and these arguments
were submitted in writing to the Court. However, before oral argument
took place, Chief Justice Waite announced: "The court does not wish to
hear argument on the question whether the provision in the Fourteenth
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."
It is not half as strange that the Supreme Court judges would render
such an opinion, given their allegiance to the propertied class, as
the way that they rendered it. The Supreme Court judges generally
preferred to write long-winded, complex opinions, as evidenced by any
Supreme Court opinion even to this day. This question had never been
covered in a Supreme Court decision; it had been avoided. Here was the
perfect chance for any of nine Supreme Court judges to make his place
in history. All declined. Not a single justice wanted to explain how
an amendment about ex-slaves had converted artificial entities into
the legal equivalent of natural persons.
This opinion without explanation, given before argument had even been
heard, became the law of the United States of America. No state or
federal legislature passed or even discussed it; no Amendment to the
Constitution was deemed necessary; the citizens were simply informed
that they had a mistaken view about corporations, if they were
informed at all. Future Supreme Courts refused to even consider the
question, preferring to build on it, though occasionally future
justices unsuccessfully sought to raise the question again.
Was the 14th Amendment about corporations? One of the 1886 judges,
Samuel F. Miller, had not thought so in 1872, only 6 years after the
Amendment had become law, when the court was "called upon for the
first time to give construction to these articles." In the
Slaughterhouse Cases 83 U.S. 36 1872, he stated (quoted at length
because it is important not only to the question of corporate
personhood, but to the question of civil rights):
The most cursory glance at these articles discloses a unity of
purpose, when taken in connection with the history of the times, which
cannot fail to have an important bearing on any question of doubt
concerning their true meaning. Nor can such doubts, when any
reasonably exist, be safely and rationally solved without a reference
to that history, for in it is found the occasion and the necessity for
recurring again to the great source of power in this country, the
people of the States, for additional guarantees of human rights,
additional powers to the Federal government; additional restraints
upon those of the States. Fortunately, that history is fresh within
the memory of us all, and its leading features, as they bear upon the
matter before us, free from doubt.
The institution of African slavery, as it existed in about half
the States of the Union, and the contests pervading the public mind
for many years between those who desired its curtailment and ultimate
extinction and those who desired additional safeguards for its
security and perpetuation, culminated in the effort, on the part of
most of the States in which slavery existed, to separate from the
Federal government and to resist its authority. This constituted the
war of the rebellion, and whatever auxiliary causes may have
contributed to bring about this war, undoubtedly the overshadowing and
efficient cause was African slavery.
...
They [Negroes] were in some States forbidden to appear in the
towns in any other character than menial servants. They were required
to reside on and cultivate the soil without the right to purchase or
own it. They were excluded from many occupations of gain, and were not
permitted to give testimony in the courts in any case where a white
man was a party. It was said that their lives were at the mercy of bad
men, either because the laws for their protection were insufficient or
were not enforced.
These circumstances, whatever of falsehood or misconception may
have been mingled with their presentation, forced upon the statesmen
who had conducted the Federal government in safety through the crisis
of the rebellion, and who supposed that, by the thirteenth article of
amendment, they had secured the result of their labors, the conviction
that something more was necessary in the way of constitutional
protection to the unfortunate race who had suffered so much. They
accordingly passed through Congress the proposition for the fourteenth
amendment, and they declined to treat as restored to their full
participation in the government of the Union the States which had been
in insurrection until they ratified that article by a formal vote of
their legislative bodies.
...
We repeat, then, in the light of this recapitulation of events,
almost too recent to be called history, but which are familiar to us
all, and on the most casual examination of the language of these
amendments, no one can fail to be impressed with the one pervading
purpose found in them all, lying at the foundation of each, and
without which none of them would have been even suggested; we mean the
freedom of the slave race, the security and firm establishment of that
freedom, and the protection of the newly made freeman and citizen from
the oppressions of those who had formerly exercised unlimited dominion
over him.
It has been argued that the men who wrote the 14th Amendment
specifically meant for the word person to be a loophole which you
could drive a giant corporation through. Apparently in one of the
railroad cases an attorney who had been on the committee that drafted
the amendment waived a paper before the court claiming that it
documented such; but the paper was not entered as evidence, nor
apparently was it shown to anyone, nor was it saved. However, careful
research has shown that, John A. Bingham the member of Congress who is
known to have been chiefly responsible for the phraseology of Section
One when it was drafted by the Joint Committee in 1866, had, during
the previous decade and as early as 1856-1859, employed not one but
all three of the same clauses and concepts he later used in Section
One. More important still, Bingham employed these guarantees
specifically and in a context which suggested that free Negroes and
mulattoes rather than corporations and business enterprise
unquestionably were the persons' to which he then referred.
(Graham, Howard Jay, Everyman's Constitution, State Historical Society
of Wisconsin, 1968. See also Graham, Howard Jay, "The Conspiracy
Theory of the Fourteenth Amendment," The Yale Law Journal, Vol. 47:
341, 1938)
Before the Supreme Court determined that corporations were persons and
hence had constitutional rights female citizens had decided that the
Fourteenth Amendment should be interpreted to give them the right to
vote. In Minor v. Happersett the Supreme Court ruled that "women" were
not persons for the purposes of the Fourteenth Amendment.
The moral and legal depravity of the Supreme Court during this period
(though of course they saw their job as securing the property of those
of their class), and the absurdity of treating corporations as persons
with natural and constitutionally recognized rights, is illustrated by
the deterioration of the legal position of the former slaves and their
descendants during this time. A series of Supreme Court judgements (92
U.S. 214 (1875), 92 U.S. 542 (1875), 106 U.S. 629 (1882), and, in
particular, the infamous Civil Rights Cases 109 U.S. 3 1883) of cases
where men classified as Negroes sought the protection of the 14th
Amendment narrowed the scope of that protection. Finally, in the
infamous Plessy v. Ferguson 163 U.S. 537 1896 decision, the Supreme
Court ruled that a man who was 1 part slave by ancestry and 7/8 of
white/free ancestry could be forced to sit in a "separate but equal"
section of a passenger train. In effect this decision declared people
with non-European ancestors to not be persons with constitutional
rights. The decision would not be overruled by a future Supreme Court,
not even by Brown v. Board of Education of Topeka 347 US 483 1954; it
would take Title II of the Civil Rights Act of 1964 to overturn it.
Only justice John M. Harlan dissented in Plessy v. Ferguson. Of the
justices who had ruled that corporations were people in Santa Clara
County v. Southern Pacific, three were still justices and rules that
natural persons of the wrong skin color were not persons in Plessy v.
Ferguson. These infamous three were Stephen J. Field, Samuel
Blatchford, and Horace Gray.
Two Supreme Court judges, Hugo Black and William O. Douglas, later
rendered opinions attacking the doctrine of corporate personhood.
Quoted here is most of justice Black's opinion:
But it is contended that the due process clause of the Fourteenth
Amendment prohibits California from determining what terms and
conditions should be imposed upon this Connecticut corporation to
promote the welfare of the people of California.
I do not believe the word "person" in the Fourteenth Amendment
includes corporations. "The doctrine of stare decisis, however
appropriate and even necessary at times, has only a limited
application in the field of constitutional law." This Court has many
times changed its interpretations of the Constitution when the
conclusion was reached that an improper construction had been adopted.
Only recently the case of West Coast Hotel Company v. Parrish, 300
U.S. 379, 57 S.Ct. 578, 108 A.L.R. 1330 1931, expressly overruled a
previous interpretation of the Fourteenth Amendment which had long
blocked state minimum wage legislation. When a statute is declared by
this Court to be unconstitutional, the decision until reversed stands
as a barrier against the adoption of similar legislation. A
constitutional interpretation that is wrong should not stand. I
believe this Court should now overrule previous decisions which
interpreted the Fourteenth Amendment to include corporations.
Neither the history nor the language of the Fourteenth Amendment
justifies the belief that corporations are included within its
protection (303 U.S. 77, 86). The historical purpose of the Fourteenth
Amendment was clearly set forth when first considered by this Court in
the Slaughter House Cases, 16 Wall. 36, decided April, 1873-less than
five years after the proclamation of its adoption. Mr. Justice Miller,
speaking for the Court, said:
Among the first acts of legislation adopted by several of the
States in the legislative bodies which claimed to be in their normal
relations with the Federal government, were laws which imposed upon
the colored race onerous disabilities and burdens, and curtailed their
rights in the pursuit of life, liberty, and property to such an extent
that their freedom was of little value, while they had lost the
protection which they had received from their former owners from
motives both of interest and humanity.
These circumstances, whatever of falsehood or misconception
may have been mingled with their presentation, forced ... the
conviction that something more was necessary in the way of
constitutional protection to the unfortunate race who had suffered so
much. (Congressional leaders) accordingly passed through Congress the
proposition for the fourteenth amendment, and ... declined to treat as
restored to their full participation in the government of the Union
the States which had been in insurrection, until they ratified that
article by a formal vote of their legislative bodies. (16 Wall. 36, at
page 70.)
Certainly, when the Fourteenth Amendment was submitted for
approval, the people were not told that the states of the South were
to be denied their normal relationship with the Federal Government
unless they ratified an amendment granting new and revolutionary
rights to corporations. This Court, when the Slaughter House Cases
were decided in 1873, had apparently discovered no such purpose. The
records of the time can be searched in vain for evidence that this
amendment was adopted for the benefit of corporations. It is true (303
U.S. 77, 87) that in 1882, twelve years after its adoption, and ten
years after the Slaughter House Cases, supra, an argument was made in
this Court that a journal of the joint Congressional Committee which
framed the amendment, secret and undisclosed up to that date,
indicated the committee's desire to protect corporations by the use of
the word "person." Four years later, in 1886, this Court in the case
of Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, 6
S.Ct. 1132, decided for the first time that the word "person" in the
amendment did in some instances include corporations. A secret purpose
on the part of the members of the committee, even if such be the fact,
however, would not be sufficient to justify any such construction. The
history of the amendment proves that the people were told that its
purpose was to protect weak and helpless human beings and were not
told that it was intended to remove corporations in any fashion from
the control of state governments. The Fourteenth Amendment followed
the freedom of a race from slavery. Justice Swayne said in the
Slaughter Houses Cases, supra, that: "By "any person" was meant all
persons within the jurisdiction of the State. No distinction is
intimated on account of race or color." Corporations have neither race
nor color. He knew the amendment was intended to protect the life,
liberty, and property of human beings.
The language of the amendment itself does not support the theory
that it was passed for the benefit of corporations.
The first clause of section 1 of the amendment reads: "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." Certainly a corporation cannot be
naturalized and "persons" here is not broad enough to include
"corporations."
The first clause of the second sentence of section 1 reads: "No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States." While efforts have
been made to persuade this Court to allow corporations to claim the
protection of his clause, these efforts have not been successful.
The next clause of the second sentence reads: "Nor shall any State
deprive any person of life, liberty, or property, without due process
of law." It has not been decided that this clause prohibits a state
from depriving a corporation of "life." This Court has expressly held
that "the liberty guaranteed by the 14th Amendment against deprivation
without due process of law is the liberty of natural, not artificial
persons." Thus, the words "life" and "liberty" do not apply to
corporations, and of course they could not have been so intended to
apply. However, the decisions of this Court which the majority follow
hold that corporations are included in this clause in so far as the
word "property" is concerned. In other words, this clause is construed
to mean as follows:
Nor shall any State deprive any human being of life, liberty
or property without due process of law; nor shall any State deprive
any corporation of property without due process of law.
The last clause of this second sentence of section 1 reads: "Nor
deny to any person within its jurisdiction the equal protection of the
laws." As used here, "person" has been construed to include
corporations. (303 U.S. 77, 89) Both Congress and the people were
familiar with the meaning of the word "corporation" at the time the
Fourteenth Amendment was submitted and adopted. The judicial inclusion
of the word "corporation" in the Fourteenth Amendment has had a
revolutionary effect on our form of government. The states did not
adopt the amendment with knowledge of its sweeping meaning under its
present construction. No section of the amendment gave notice to the
people that, if adopted, it would subject every state law and
municipal ordinance, affecting corporations, (and all administrative
actions under them) to censorship of the United States courts. No word
in all this amendment gave any hint that its adoption would deprive
the states of their long-recognized power to regulate corporations.
The second section of the amendment informed the people that
representatives would be apportioned among the several states
"according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed." No citizen could
gather the impression here that while the word "persons" in the second
section applied to human beings, the word "persons" in the first
section in some instances applied to corporations. Section 3 of the
amendment said that "no person shall be a Senator or Representative in
Congress," (who "engaged in insurrection"). There was no intimation
here that the word "person" in the first section in some instances
included corporations.
This amendment sought to prevent discrimination by the states against
classes or races. We are aware of this from words spoken in this Court
within five years after its adoption, when the people and the courts
were personally familiar with the historical background of the
amendment. "We doubt very much whether any action of a State not
directed by way of discrimination against (303 U.S. 77, 90) the
negroes as a class, or on account of their race, will ever be held to
come within the purview of this provision." Yet, of the cases in this
Court in which the Fourteenth Amendment was applied during the first
fifty years after its adoption, less than one-half of 1% invoked it in
protection of the negro race, and more than 50% asked that its
benefits be extended to corporations.
If the people of this nation wish to deprive the states of their
sovereign rights to determine what is a fair and just tax upon
corporations doing a purely local business within their own state
boundaries, there is a way provided by the Constitution to accomplish
this purpose. That way does not lie along the course of judicial
amendment to that fundamental charter. An amendment having that
purpose could be submitted by Congress as provided by the
Constitution. I do not believe that the Fourteenth Amendment had that
purpose, nor that the people believed it had that purpose, nor that it
should be construed as having that purpose.
B Hugo Black, dissenting, Connecticut General Life Insurance Company
v. Johnson (303 U.S. 77, 1938)
Justice Black was not alone in his questioning of the legitimacy of
corporate personhood. Justice Douglas, dissenting in Wheeling Steel
Corp. v. Glander 337 U.S. 562 1949, gave an opinion similar to, but
shorter than, the one quoted above, to which Justice Black concurred.
