The bumper sticker said "Abolish Corporate Personhood."
The debate that followed on our local listserve truly shocked me, because nobody seemed to have anything that would show how this would seriously damage the economy or allow any protection for civil rights.
Can anyone help my friend defend this idea?
"Abolish Corporate Personhood."
That’s about as many words fit on a bumper sticker, so one cannot really fault the driver for not explaining herself more fully in that forum, but when I read it, my mind began to reel.
What a colossally bad idea, I thought. If one suddenly ruled that corporations were not "persons", then what body of law applies to them? It would seem that a statute that simply stated that corporations would no longer be considered "persons" would cause them to lose all standing to appear in court, to own property, or to have any rights at all.
A day later I mentioned this on our neighborhood listserv, causing one of our resident Nader-ites attempt to defend the concept. My adversary assured me that the entire problem with "corporate personhood" was that an over-reaching Supreme Court upset a happy balance that had been universally adopted in the 19th Century. He directed me to the case of Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886) and told me that in that case, the US Supreme Court granted brand new status upon corporations by deeming them to be included in the term "persons" in the Fourteenth Amendment.
I was assured that there was well settled jurisprudence that allowed corporations to sue and be sued, to own property, to enter into contracts, all within a well understood balance that would be re-established if we just overruled the Supreme Court that had, during the same era, inflicted Plessy v. Ferguson upon the nation. There was no reason at all to fear that a ruling that stopped courts from treating corporations as "persons" would deny them the rights to enforce contracts, control property or run businesses.
For authority, I was cited to the following articles on the Womens’ International League for Peace and Freedom issues library:
Santa Clara Blues, by William Meyers
Personhood Talk by Molly Morgan and
selected readings on corporate personhood
There, I was told, was authority that would prove that my fears of an unknown and unknowable status would be resolved. I was told that if I simply read those texts, I would learn a history of 19th Century America before greedy corporations came to dominate and usurped rights and privileges intended solely for human beings.
But nothing of the sort was there.
Indeed, the authors of those postings, William Meyers, Molly Morgan, Richard L. Grossman and Frank I. Adams do write of colonial days when citizens were distrustful of corporations; Mr. Meyers even says that "Corporations were detested by colonial rebels in 1776 . . ." They describe a history in which states granted restrictive corporate charters, which they say were "frequently revoked" when any of the restrictions were violated. But they say that the greedy business owners were unable to achieve their ambitions without "personhood," which they finally achieved in 1886 in the Santa Clara decision.
None of these cited articles, however, describes even a single case where a governmental body articulated a different set of rights for a business or enterprise based upon its status as a corporation. Far removed from an accepted body of understood differences between the rights of corporations and the rights of human beings, they did not provide me with any court any where that entered a ruling prior to Santa Clara that would have come out differently had Santa Clara been decided first.
My friend accused me of not reading the articles. He assured me that if I would just study them carefully, I would find proof of a pleasant history of the 19th Century in which where a "reasonable balance" between corporate powers an public rights existed. That "reasonable balance" would certainly be restored as soon as Santa Clara was reversed. He told me not to worry that newspapers operated as corporations would no longer enjoy Freedom of the Press, or that corporations would lack protection from uncompensated taking of their property.
To "prove" his point, my friend quoted this from one of his cited authorities, a speech by somebody named Molly Morgan (the full link is above) delivered to a community group in Santa Cruz, CA on September 21, 2001. She is reported to have said:
"What would change if corporations did not have personhood? Well, here are a few examples. If corporate persons no longer had first amendment right of free speech, we could prohibit all corporate political activity —— no more contributions to candidates or parties, no more lobbying.
"Just think of the ripple effect on our political process if no corporate money could contaminate it! Corporate persons are now protected against search without a warrant under the 4th Amendment. This means that OSHA and the EPA have to schedule their inspections at a time convenient to corporate managers. If you think the air, land, or water in your community is being polluted, or the workers mistreated, neither you nor the government can go on corporate property to get information without legal permission. Just think of the consequences if corporate polluters were no longer shielded by the Constitution! Without their protections under the 5th and 14th Amendments, corporations could be prevented from merging and owning stock in other corporations. We could leaflet in malls, we could pass laws against chain stores and cell phone towers, we could organize openly at work. If corporate personhood is eradicated, a floodgate of possibilities opens for citizen sovereignty to replace corporate governance."
I was not reassured. Along with the right to lobby, it seems to me that it is the First Amendment as incorporated through the Fourteenth Amendment that gives Miami Herald the right to speak freely to the Florida Governor. The Constitutional Rights that permit the Freedom Drive Mall to decide who can pass out literature in the Mall gives the Head Shop the right to sell t-shirts with marijuana leaves depicted thereon and to urge its patrons to lobby for legalization.
And only the right to turn away police without warrants allowed the Kansas abortion clinics to prevent Kansas Attorney General Phill Kline from marching in and taking the medical records of all of their clients when, in 2005, his warrants for those records were quashed, ending his infamous fishing expedition, allegedly inspired by his attempt to uncover the statutory rapists who impregnated the rumored underage abortion seekers.
I was told that these worries were unfounded. The clear history of the 19th Century would demonstrate that state court judges would have turned away AG Kline because the privacy rights of 19th Century women.
Unpersuaded, I did some research. Too much, really, to be justified by a debate over the cyber-fence of a neighborhood listserv. What I found was just the opposite of the well understood consensus of reasonable, but lesser rights held by corporations in the 1800's prior to Santa Clara.
The first case I found seemed to support their argument. In Bank of US v Devereaux, 2 F.Cas. 692 (C.C.Ga. 1808), the Circuit Court held that a jurisdictional statute using the term
"person" did not allow the Bank of the United States to sue because it was a corporation, and not a "person" as the statute provided.
But that case was reversed by the US Supreme Court in a decision written by Chief Justice John Marshall. In Bank of US v Devereaux, 5 Cranch (9 US) 61 (1808) the Chief Justice did not directly equate "corporation" and "person", but he came very close. The statute that determined jurisdiction of the court used the words "citizen" and "person." The Chief Justice said that corporations
were certainly not "citizens", but that the charter specifically stated that federally chartered banks may "sue and be sued", so the Court concluded that the Circuit Court was in error.
A few years later, the Supreme Court stated in US v Amedy, 24 US 392, 413 (1826) that it was the first case to rule on whether corporations were persons. It found that they were, saying: "That corporations are, in law, for civil purposes, deemed persons, is unquestionable."
In that case, the defendant in a criminal charged with the crime of defrauding another "person." There, defendant claimed that since he was merely cheating an insurance company, he could not be found guilty. Following the language quoted above, the Court went on to say that no American courts appeared to have addressed the issue, so, citing to British cases from the 16th and 17th Centuries, it found criminal statutes aimed a "persons" could be applied to corporations.
The Supreme Court again reached the issue in 1838. In Beaston v. Farmers' Bank of Delaware, 37 U.S. 102 (1838) it was argued by the corporate defendant in an involuntary
bankruptcy that it was not amenable to being forced into bankruptcy because the statute only provided for cases to be filed against "persons." The corporation lost, the Supreme Court stating instead
that
"Corporations are persons; they are so treated in all the laws and proceedings relative to taxation. Coke's Institutes, 697, 718. In the exposition of the Statute of Henry 5, Lord Coke says: Every corporation is included in the term `inhabitant;' although the corporation is not named. In Cowper's Rep. 79, the court of king's bench decided, that a corporation comes in under the term `inhabitant.' So also, in the case of The Bank of the United States v. Deveaux, 6 Cranch, 51; it was held, that a corporation composed of citizens of one state, may sue a citizen of another state, in the courts of the United States. The same principle will be found in the opinion of Mr. Justice Thompson, when in the supreme court of New York; in the case of The People v. The Utica Ins. Company, 15 John. Rep. 351. Id. 37 U.S. at 113."
Finally, adding some context to the choice of words used in the Fourteenth Amendment, I find the "Dictionary Act", codified in the United States Code at 1 U.S.C. sec 1, which (in part) states:
the words "person" and "whoever" include corporations,
companies, associations, firms, partnerships, societies,
and joint stock companies, as well as individuals;
That Code Section was adopted in 1871, three years after Fourteenth Amendment was adopted. This is not directly binding, of course, but the fact that roughly the same body politic defined the word "person" to include corporations is an indication that the Congress that proposed the language of the Fourteenth Amendment did use the word in a manner that is consistent with the way that the Supreme Courts of the next decade interpreted it. It certainly would have been sloppy of them to say in their statute that "person" includes "corporation" if they intended in their proposed Constitutional Amendment that it should have some other meaning.
Now frankly, if that’s all the assurance they’ve got, I am shocked to find two people with bumpers to adorn with such a sticker. I cannot say I’ve seen any particular ground swell of people trying to "Abolish Corporate Personhood," but I really cannot think of too many ideas as fraught with danger as abolishing Freedom of Speech for CBS News, Inc. or taking away the right of Planned Parenthood, Inc. to turn away Attorney General Kline.
If it’s not just a coincidence that my local proponent of this idea is a Nader-ite, surely there are some scholars out there who can set me straight.