Corporations as persons

Now that the Supreme Court has given corporations unlimited power to influence politics it may be a good time to review the process whereby corporations were given the status of person in our nation. What follows is just a brief explanation of that process and I would encourage you to read the full article at: http://www.yesmagazine.org/issues/what-would-democracy-look-like/555

The American war over corporate power is heating up again. A current struggle centers on the question of whether corporations should be “people” in the eyes of the law.

In October 2002, Nike appealed a lawsuit against it to the Supreme Court, asking it to rule that Nike's letters to newspapers about treatment of workers in Indonesia and Vietnam are protected by the First Amendment.

In Pennsylvania, several townships recently passed laws forbidding corporate-owned farms. In response, agribusiness corporations threatened to sue the townships for violation of their civil rights—just as if these corporations were persons.

Imagine. In today's America, when a new human is born, she is instantly protected by the full weight and power of the US Constitution and the Bill of Rights. Similarly, when papers called articles of incorporation are submitted to governments in America (and most other nations of the world), another type of new “person” is brought forth into the nation.

The new corporate person is instantly endowed with many of the rights and protections of personhood. It doesn't breathe or eat, can't be enslaved, can live forever, doesn't fear prison, and can't be executed if found guilty of misdoings. It is not a human but a creation of humans. Nonetheless, the new corporation gets many of the Constitutional protections America's founders gave humans to protect them against governments or other potential oppressors. How did corporations become persons?

After the Revolutionary War, Thomas Jefferson proposed a Bill of Rights with 12 amendments, one of which would “ban commercial monopolies,” forever making it illegal for corporations to own other corporations, to do business in more than one specific product or market, and thus forever preventing another oppressive commercial juggernaut like the East India Company from arising again in North America to threaten democracy and oppress the people.

But Jefferson's amendment failed and the corporations fought back. Now those corporations use the club of the amendments that did pass to influence elections and legislation favoring them—in the name of their rights as persons.

An historic goof?
What most people don't realize is that this is a recent agreement—and it is based on an historic error. Only since 1886 have the Bill of Rights and the 14th Amendment been applied explicitly to corporations. For 100 years people have believed that the 1886 case Santa Clara County v. Southern Pacific Railroad included the statement “Corporations are persons.” But looking at the actual case documents, I found that this was never stated by the court, and indeed the chief justice explicitly ruled that matter out of consideration in the case.

The claim that corporations are persons was added by the court reporter who wrote the introduction to the decision, called “headnotes.” Headnotes have no legal standing.

It appears that corporations acquired personhood by persuading a court reporter and a Supreme Court judge to make a notation in the headnotes of an unrelated law case. In Everyman's Constitution, legal historian Howard Jay Graham documents scores of previous attempts by Supreme Court Justice Stephen J. Field to influence the legal process to the benefit of his open patrons, the railroad corporations. Field, as judge on the Ninth Circuit in California, had repeatedly ruled that corporations were persons under the 14th Amendment, so it doesn't take much imagination to guess what Field might have suggested Court Recorder J.C. Bancroft Davis include in the transcript, perhaps even offering the language, which happened to match his own language in previous lower court cases.

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 had, himself, 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 re-interpreted 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' 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. State case) and that blacks aren't entitled to equal protection (decided in the Dred Scott and Plessy cases) were superseded by court cases affirming the full rights of African Americans and women 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.