Robert Greenwald has brought out a new video about Wellpoint, the largest insurance company in the US, suing the state of Maine to require Maine to guarantee Wellpoint's profit margin, and at the same time cutting benefits for its employees. The lawsuit is a notably heinous action in this economy, worthy of a Diary Entry for that reason alone. But I will leave that to others. What raises my hackles is that this private corporation, which some say should have all of the rights of "natural persons", in fact has a right that the Constitution, specifically the Eleventh Amendment, bars you and me from having. And the bigger the corporation, the more of this right it has.
Right now, the Supreme Court is considering whether to expand corporate rights even further, so that corporations can be even more equal than they are now.
Here is the Amendment, in full:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Not the most obvious bit of prose, is it? In practice, this prohibits a citizen of any US state from suing any other state, by preventing the Federal courts from getting involved. The most notorious application of this principle was in the Kent State shootings of students by National Guard soldiers, where out-of-state students' parents were barred from suing the Governor of Ohio.
But corporations aren't barred from suing states, nosirree! Any or all of the 50 states. No matter how much CEOs may blather about "corporate citizenship", they don't have it. Corporations are chartered by states, but cannot be citizens of a state. Which means that they have an extremely valuable right denied to every citizen. And that's not all. Foreign citizens cannot sue US states, but foreign corporations can.
All of this comes under an old legal doctrine known as Sovereign Immunity, originally holding that subjects could not sue the King as Sovereign. Now you can be excused if you thought that this was one of the reasons for the American Revolution, and that we would have gotten rid of such an obviously tyrannical notion two centuries ago in the Bill of Rights, if not the body of the Constitution. You can even be excused for thinking that immunity of a King would have no application in a Republic. Instead of which, "Sovereign" Immunity was the very next addition to the Constitution after the Bill of Rights.
The next chapter in our saga is known as Santa Clara County vs. Southern Pacific Railroad in 1886. Morrison Waite, Chief Justice of the Supreme Court of the United States, said before oral arguments began,
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.
This is not a Supreme Court decision. There is no statute on the subject, no case law, no precedent. Merely a refusal to hear such a case and to set any precedent. Instead, by fiat, corporations are alleged to have all of the rights that Congress and three-quarters of the States had given to freed slaves by Section 1 of the Fourteenth Amendment, and in particular all of the Bill of Rights.
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.
Note that the Amendment begins by referring to "persons born or naturalized in the United States" when discussing citizenship, but then shifts to "persons" without qualification. This is meant to extend the rights of Due Process and Equal Protection of the laws to non-citizens within a state, whether residing there, doing business there, or just passing through, or affected by state action while living elsewhere. Nobody involved ever expressed the thought that this would include corporations, in case you were wondering about Original Intent.
It requires an astonishing level of "Judicial Activism" to claim that this passage can be tortured into giving rights to corporations, and astonishing chutzpah to claim that this interpretation does not even require the hearing of evidence and the rendering of a judicial opinion. But there it is.
All of this is routinely obfuscated. You usually hear that corporations have the rights of persons by law. This means, among other things, that the governments that create corporations do not have an automatic right to examine their books and other records (Fourth Amendment, searches and seizures). The authorities have to get a search warrant showing probable cause, that is, preliminary evidence that a crime has been committed. Similarly, the claim is often made that corporations should have unlimited First Amendment Free Speech rights, both in political campaigns and in lobbying politicians, including unlimited funding and the right to say anything at all, free of legal restrictions on commercial speech such as Truth in Advertising. That way truly lies complete corporate feudalism and The Road to Serfdom, as per F. A. Hayek.
The current case, Citizens United v. Federal Election Commission (See also Wikipedia on this subject) is whether a political video slamming Hillary Clinton, called Hilary: The Movie, is a "documentary" falling under normal Free Speech rules, or a "campaign ad" falling under McCain-Feingold campaign limits. The Supreme Court could decide the case quite narrowly, addressing only that question. Or the Right-wing judicial activists on the Court could take the most expansive argument made in the case, essentially that McCain-Feingold restrictions on "corporate speech" are wholly unconstitutional, and in the process give a genuine Supreme Court precedent for what as been for more than a century a legal fiction. Naturally, McCain and Feingold both take a dim view of this possibility.
Justice Sotomayor's questions during oral arguments showed skepticism toward the "corporate personhood" legal theory, but she isn't the critical vote. Justice Kennedy is. So far, he is on the record for the corporations, and against us.
Well, if we can't stop it, I am willing to take the defenders of corporate personhood at their word. Give corporations full rights under the Fourteenth Amendment. But you can't stop there. You also have to apply the Thirteenth Amendment.
Section 1. 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.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.
Right now, corporations are property. If they are persons, then they are slaves of their owners. If we are going to give them full personhood, then I demand that their slavery be ended at the same time. In effect, that would make them all non-profits. How would that go over?