Hey everyone. Long diary. This is actually a just-completed term paper for a class I took with Ira Katznelson, one of the leading American political scientists in the last 100 years, who specializes in (among other things) new deal historiography and political analysis.
The question I wanted to ask in this paper was how the New Deal era, which everyone agrees is so critically important in our nation's development, effected the current legal status of the corporation, allowing for the (what I consider to be) devastating Citizens United decision recently.
I'm not sure I quite succeeded in answering that question, but I did learn a lot of revealing information about the New Deal and the political significance of corporate personhood therein. To the extent that the current political landscape resembles that of 1933 when Roosevelt gave his first inaugural, then this insight could be telling about our current climate. I tried to at least advance a framework for making those kind of inferences, though my paper focuses mostly on the New Deal. Maybe some of the political scientists here can help extend these findings to the present day. Perhaps not. At any rate, please do read it; I post because I think this issue is so important, particularly given the strange and tenuous relationship right now between the Obama administration and BP in the wake of the Deep Horizon disaster. My tentative hypothesis is that the administration is hesitant to encourage the use of the powers of congress to investigate the disaster for fear of triggering bill of rights lawsuits that could pile on top of the Citizens United decision and make it harder to reverse.
The Political Significance of Corporate Personhood in the New Deal Era
In the late 19th-early 20th century, a paradigm shift occurred in the
corporate entity's legal definition, allowing, for the first time in U.S.
History, corporations to claim Bill of Rights provisions as a shield
against government regulation, intervention, or oversight.1 Roughly a
century later, in a decisive court case known as Citizens United, the
Supreme Court has turned over the next page in the legal evolution of the
corporate entity, another drastic step towards the concept known as the
real entity theory of the corporation.2 This decision came amidst a
turbulent economic period, a great- depression- reminiscent deep fear3 and
uncertainty, and a resultant pluralistic battle for control over the "rules
of the game"4 of the procedural state, largely between those ideologically
in favor of or opposed to greater government intervention in the market.5
And yet there is a consensus amongst most leading economists that the
structural causes of the "great recession" of 2008 are strikingly similar
to those that caused the Great Crash of 1929, i.e. not enough oversight.6
Not surprisingly, the comparisons between the Obama and FDR
administrations have been coming easily in the popular literature.7 Perhaps
more surprising is that in the midst of all this, the Supreme Court just
handed corporations an enormous political victory in the courts.
The most basic purpose of this paper is to ask why this might have
happened, and to challenge the conventional wisdom that it was merely a
confluence of blind historical forces.8 Given the relative temporal
proximity between the legal inception of modern corporate personhood and
the policies of the Roosevelt administration, in concert with the many
overwhelming similarities in political landscapes between the 1930's and
today,9 we are at this moment uniquely situated historically to take a
precise measure of the causal relationship between corporate personhood and
the politics of the New Deal.10 And, given the potentially vast political
implications of the legal rights afforded to our largest corporations, a
precise historiographic understanding of the underlying causal mechanisms
would be of utmost utility to policy makers and historians alike. There are
three main arguments that follow: first, ever since the beginning of the
20th century, corporate personhood outcomes have been chiefly determined by
corporate strategies and actors, rather than by business-friendly agents in
either the court or the government.11 Second, the New Deal caused
corporations to stop gaining and even lose considerable ground on the
question of corporate personhood because of both the gravity and
credibility of the Roosevelt administration's efforts to regulate business
at the macroeconomic level.12 Finally, this diminishing of legal corporate
personhood, which lasted through 1960,13 was a significant (if temporary)
defeat for champions of laissez-faire capitalism of the period that is
seldom (if ever) accounted for in the literature, and would be of value to
scholars such as David Kennedy14 who argue that a predominantly incoherent
New Deal's main achievement was to secure capitalism's future; I would
instead argue that the staving off of wider definitions of corporate
personhood in the context of an ever more well-funded, sophisticated
mobilization of biases by the business community was both a significant
accomplishment in and of itself, and one in significant agreement with the
long term planning interests of the most radical of the New Dealers, to say
nothing of the rhetoric of Roosevelt himself15 Thus, regardless of how
intentional this achievement was in practice (the record isn't clear), the
issue warrants significant attention from New Deal historians as a major
factor in interpreting the meaning and significance of the New Deal.
What exactly is corporate personhood? Corporate personhood is
generally understood to mean the Corporation's legal claim to intangible
bill of rights protections such as the right to free speech, privacy, or
due process.16 The grant of intangible rights under the First, Fourth,
Fifth and Fourteenth Amendments are the clearest indicators of a shift in
the legal definition of the corporate entity and thus corporate
personhood.17 Two competing legal definitions or theories of the corporate
entity were used in the Progressive and New Deal eras to justify the
granting or curbing of Bill of Rights protections for corporations: the
"artificial entity theory," which views the corporation solely as an
artificial creation of the state, and the "natural entity" theory, which
regards the corporation "not as artificial, but as real, with a separate
existence and independent rights.18 The first case to afford Bill of Rights
provisions to corporations was Noble v. Union River Logging Railroad, 147
U.S. 165, (1893), wherein a railroad "invoked fifth amendment due process
clause to challenge the Secretary of the Interior's revocation of an
approval for right of way over federal public lands."19 This effectively
secured the future of the natural entity theory as the more dominant of the
two theories, should anyone strain to ask the courts to use it.
Following its inception, corporate personhood changed very little in
quality over the course of the Progressive and New Deal eras, due mainly to
the character of the regulatory apparatus in both those periods (Though it
certainly grew in quantity; by 1938 over half of the Bill of Rights claims
of the past 50 years had been on behalf of corporations rather than
individuals).20 In the progressive era, President Wilson saw little benefit
to expanding beyond state-based regulatory commissions, limiting the power
of the FTC to unfair trade practices.21 These types of meager regulations
in turn did not trigger many Bill of Rights claims. The New Deal Era, on
the other hand, saw the creation of many federal agencies and
regulations.22 The Bill of rights claims, however, were even fewer than
during the Progressive era. This can again be explained by the nature of
the regulation. The initial New Deal regulation was characterized by
planning, under the auspices of Rexford Tugwell, Charles Merriam, and Lewis
Lorwin. The Fair Deal, following the 1937 second recession, the NRA's 1935
judicial defeat, and the court stacking scandal, was more driven by
antitrusters such as Thurman Arnold, and those who favored a fiscal
solution to the sagging economy more than any type of regulation, such as
Marriner Eccles, Henry Wallace, Harry Hopkins, and Mordecai Ezekial, Harry
Hopkins and others.23 The latter were successful in convincing the
President to follow a substantial Keynesian fiscal strategy in the face of
a large push for Fiscal Responsibility, helmed by treasury secretary Henry
Morgenthau.24
This fiscal stimulation was qualitatively different than that of the
many stimulative policies of the 100 days, however, in that it was more
about stimulating mass consumption than taking on any kind of a delegating
role in either production or economic development.25 The massive
ideological swing this represents, Brinkley argues, was brought on first
and foremost by the aforementioned Judicial defeat of the NRA, as well as
the second economic crisis of 1937 and the court stacking controversy. What
he doesn't include in his analysis is that it was the business community
that brought the lawsuit defeating the NIRA and the NRA.26 This was just
one of a slew of cases on behalf of the business community designed to cut
the constitutional legs out from any significant planning attempted by the
government.27
So the initial New Deal corporate legal strategy was very much in
response to the nature of the regulatory state (planning), whereas the
definition of corporate personhood, I am arguing, is mainly a result of the
legal actions of corporations. It is clear then how planning would not have
triggered bill of rights claims; it is much more expedient to challenge
them it on other constitutional grounds. What about antitrust regulation?
One would imagine that such endeavors would require intrusions and
inquiries triggering all sorts of intangible rights claims, particularly in
the second New Deal, when Thurmond Arnold's Antitrust Division was far from
dormant.28 It turns out that Arnold was not an anti-trust ideologue at
all. He was indeed famous for arguing that anti-trust laws were a sort of
social self-therapy for an individualistic, frontier spirited society to
save face in the context of a growing need for organizations.29 Not
surprisingly, he ended up not going after large corporations but only
organizations that overcharged for their products or attempted to collude
on prices. This, one imagines, was in fact desirable to the majority of the
business community. Indeed, upon leaving office, he said "there can be no
greater nonsense than the idea that a mechanized age can get along without
big business."30 Whether he realized it or not, Arnold represented the
poster child for the other dominant corporate strategy to New Deal
Regulation in its anti-trust form: working within the system to delay or
deflect the antitrust regulatory process.
So what develops thus is a sort of offense-defense dynamic; if
government keeps business occupied fending off credible attempts at
regulation, and if those attempts at regulation aren't explicitly in
violation of the bill of rights, then corporations will expend their legal
and political capital dealing with other issues. Indeed, the New Deal paved
the way for a 1950 court case that reversed any previous corporate claims
to intangible bill of rights, reversing a 1924 decision preventing
regulatory "fishing" in corporate papers, in keeping with the 4th
Amendment.31 So by the close of the New Deal era, we had the federal
government actually initiating its own lawsuits and causing the judicial
curb of corporate personhood to approach what it had at the turn of the
century, and to remain that way for at least a decade.32
As I've been arguing,33 this was a major achievement of the Roosevelt
administration, very much in the spirit of the first inaugural, and perhaps
uniquely so. I shall spend the remainder of this paper demonstrating that
there is ample evidence to suggest throughout the entire New Deal era, the
Administration was operating with an acute concern for the implications of
an ever-widening legal interpretation of the rights of the corporation,
especially the issue of campaign finance. To demonstrate this, in the rest
of this paper shall be compared the writings of the most relevant reformers
of the early New Deal to the Legislative actions of the second New Deal,
under the working assumption that given all the experimentation associated
with the New Deal, any philosophical trope that could survive that long is
indeed significant.34
John Dewey first pointed out the problem with the courts using real or
natural entity theories (or any theory) of corporations. "The fact of the
case is the there is no clear-cut line, logical or practical, through the
different theories which have been advanced and which are still advanced in
behalf of the "real" personality of either "natural" or associated
persons... Corporate groups... have had real personality ascribed to them,
both in order to make them more amenable to liability, as in the case of
trade-unions, and to exalt their dignity and vital power, as against
external control."35 Adolf A. Berle, a Columbia Law Professor, & Gardiner
Means, an economist, co-wrote a forceful book about the tensions within the
modern corporation between the interests of the managers and those of the
shareholders, and showed that while the shareholders were now by far the
majority owners of most of the U.S. economy, the control of the managers
gave them a distinct advantage. This of course undermined the natural
entity theory significantly; Berle and Means even went so far as to refer
to modern corporations as "quasi public" entities, due to the public
character of their majority ownership (the shareholders), a term with
unambiguous parallels to the opposing term of "artificial entity."36
Their work followed on the heels of another great New Deal reformer,
Charles Merriam. Merriam pointed out the movement away from rural areas
into cities, the massive growth of corporate revenues to the point where
the four largest corporations' gross revenues exceeded any city or state in
the nation. Merriam was quick to point out the implications this had in
politics: "Agriculture and business have always been powerful in public
affairs, but their organizations are far more highly developed than they
have been in earlier times in America...Equally conspicuous is the change
in methods during the recent period. The older system consisted chiefly of
lobbying, personal interviews... social influence... The newer methods
reflect the changing methods of organization [as described by Berle and
Means], high pressure salesmanship and advertising, widespread in their
influence on the business and social world." He goes on to ask "What is to
be the relation of these numerous and in some instances gigantic agencies,
equipped with the modern high-power equipment of social pressure, to the
political party on the one hand and to the law making bodies on the other,
indeed to government itself?"37 The point is that he raises the question of
powerful corporations capturing the government and suggests a need to
prevent this from occurring; the only thing to stop him, of course, was the
doctrine of corporate personhood and the first amendment. It bears
highlighting at this point that all three men were extremely influential in
the New Deal era, and there is ample cause to believe that their ideas
would have had substantial purchase with the President.38
This philosophy actually maps quite well onto the legislative behavior
of the later New Deal. Despite the gradual shift from planning to antitrust
and eventually very little regulation, there are revealing legislative
moments, particularly as the growing labor movement came under attack by a
newly aligned southern Democrat and Republican coalition. The most relevant
of these for the purpose of this paper was the War Labor Relations Act
(1943), wherein the President's veto in response to a provision banning
unions from political contributions under the Hatch Act was overridden. The
reason I find this bill so applicable is that it was during a time of war,
and ostensibly supported by the President, with the exception of two
provisions: the first barred unions from making campaign contributions, and
the second required unions to give advance notice for strikes.39 Of these
only the campaign contributions provision seems highly debatable on the
merits, as is reflected in the Congressional record. One interesting moment
occurred in the Senate, as the final version of the bill was being debated.
Senator Joseph F. Guffey, a Democrat from Pennsylvania, pointed out that
the spirit of the Hatch act was already being routinely violated by
prominent business families using extended family members to contribute the
maximum to a given set of candidates as a way of circumventing the $5,000
dollar limit imposed by section 13 (a) of the Hatch Act.40 I believe
reflects the spirit of the opposition to banning union campaign
contributions, as well as the spirit of the Roosevelt administration's
stance toward corporate campaign contributions and personhood generally.
Moreover, it is very much in keeping with the spirit of the initial
reformers against relative gains in campaign finance might by corporations.
If this had been a simple case of FDR kowtowing to the unions, then he
would have opposed the bill on all the provisions, not just the one
involving campaign finance, especially at a time of war.41
In conclusion, while there still exists no consensus among historians
as to the true meaning of the New Deal and likely never will, there has
been an increasing level of agreement in the historiography portraying the
New Deal as non-ideological and even incoherent, despite the many important
reforms it created.42 What's at stake with this trend, however, is the
strong possibility of over-diminishing the role of the true reformers of
the New Deal. The issue of corporate personhood is an often-overlooked
issue that was nevertheless very concerning to many key architects of the
New Deal, particularly Merriam, Tugwell, Berle and Means, and this concern
was clearly reflected in Roosevelt's policies, even as late as the 1943
veto of the War Labor Disputes Act. The issue of corporate personhood is
now, and always has been, of central concern to the integrity of our
democratic system, but the debate in the New Deal era had more to do with
the two theories of the corporate entity, as corporations were too busy
putting out regulatory fires to bring any strategic Bill of Rights cases.
Though Corporations' strategies are the main determinant in corporate
personhood outcomes, the government has agenda setting power43 Furthermore,
the strong outcome in favor of opponents of corporate personhood is not the
product of blind historical forces, but a victory in keeping with the
original aims of the New Deal, as put forth by President Roosevelt in the
first inaugural, 1933. How does all of this help explain the Citizens
United case? The corporate strategy exhibited in Citizens United is a part
of a carryover from a reaction to the pre- 2008 modern regulatory state,
which was both highly intrusive and yet narrow in scope, and if it gets
rolled back, or if there is a shift in the approach of the business
community away from politicized bill of rights claims, then that would
suggest a much more active and politically savvy regulatory state has been
set in motion by the Obama Administration.
1 Santa Clara v. Southern Pacific Railroad, 118 U.S. 394 (1896).:
corporations are persons for the sake of fourteenth amendment equal
protection, Minneapolis & Saint Lewis Ry. V. Beckwith, 129 U.S. 26 (1889).:
Corporations are persons for the purpose of Fourteenth Amendment provision
of due process. Via Mayer, Carl J. Infra note 8.
2 Citizens United v. Federal Elections Commission: Corporations as
persons cannot be prevented from spending unlimited sums on advertising
either supporting or denouncing political candidates under the First
Amendment.
Justice Stevens, dissenting, read his dissent from the bench. The November
2010 elections are likely to be significantly affected, raising the specter
of activist judges that has hung over the Santa Clara decision. In terms of
recent precedent, United States v. Martin Linen Supply Co., 430 U.S. 564
(1976).: A corporation successfully invokes fifth amendment double jeopardy
clause; Marshall v. Barlow's Inc., 436 U.S. 307 (1977).: Plumbing and
Electrical corporation successfully invokes 4th amendment rights to avoid
federal inspections under OSHA, etc., Id.
3 Frank Knight, Risk, Uncertainty and Profit (1921). New York: Harper and
Row, 1965.
4 In terms of how interest groups mobilize and engage with the government
in contest over the rules and rewards of the procedural state, I find
Schattschneider's theory of "mobilization of bias" most compelling.
According to Schattschneider, power has three faces: behavioral (power
exercised, depending heavily on the general consensus what is "legitimate
power"), agenda setting (temporally prior to behavioral power), and status
quo power (circumstances such that people can't imagine it being
otherwise). Interest groups mobilize biases to influence the first two
kinds of power; times of crisis, on the other hand, can shift the status
quo. Schattschneider, E. E. (1960, March). The Semi-Sovereign People: A
Realist's View of Democracy in America (1 ed.). Austin: Holt, Rinehart and
Winston.
5 The legislature, for its part, is extremely divided. The American
Recovery and Reinvestment Act passed with no Republican votes in the House
and just 3 in the Senate; the Patient Protection and Affordable care Act of
2010 passed by a hair and with no Republican votes. And Republicans have
filibustered every significant piece of legislation since President Obama
took office. In all cases the opposing rhetoric has centered on the merits
of increasing the size of the government at the expense of market
efficiency.
6 See Paul Krugman: How Did Economists Get It So Wrong
http://www.nytimes.com/...
em=&pagewanted=print; especially section 2: "From Smith to Keynes to Smith
again, for the basic case that both classical and neoclassical economics
treat individuals and economies in an oversimplified fashion. See also John
Maynard Keynes: "But to-day we have involved ourselves in a colossal
muddle, having blundered in the control of a delicate machine, the working
of which we do not understand. The result is that our possibilities of
wealth may run to waste for a time-perhaps for a long time." The Great
Slump of 1930. London: The Nation & Athenæum, issues of December 20 and
December 27, 1930 (First Edition). http://www.gutenberg.ca/...
slump/keynes-slump-00-h.html
7 See Norman Markowitz: Obama and Roosevelt: A Comparison of the First 100
Days http://www.politicalaffairs.net/... Steve
Fraser: The New Deal In Reverse. http://www.huffingtonpost.com/...
/the-new-deal-in-reverse-h_b_458427.html, to name just two.
8 Examples of these usual suspects include the ideological makeup of the
court, the fact that a case happened to come before them questioning the
curbs on corporate speech in McCain- Feingold, etc.
9 Supra notes 3-4.
10 1933-45; Alexis De Tocqueville: (1856): today we are situated at just
the right place to see and judge this great thing. We are far enough from
the revolution to feel only faintly the passions of those who made it, but
we are close enough to understand and empathize with the spirit that led
them to it." The same can be said for our orientation to both the New Deal
regime and the formative years of corporate personhood. Alexis de
Tocqueville. The Old Regime and the French Revolution. New York: Anchor
Books (1955) - Translated by Stuart Gilbert. (p. 95). For the best essay
length examples of such efforts of significance to this paper, see Alan
Brinkley, "The New Deal and the Idea of the State," in Steve Fraser and
Gary Gerstle, eds., The Rise and Fall of the New Deal Order, 1930-1980
(1989), (the New Deal founded a powerful new Liberalism balancing business
autonomy and fiscal management through Keynesian stimulation of mass
consumption alone) David M. Kennedy. 2009. "What the New Deal Did."
Political Science Quarterly 124, no. 2: 251-268. (The New Deal was mainly
about eliminating fear, and, secondarily, preserving capitalism), Richard
Hofstadter, The American Political Tradition New York: Alfred Knopf, 1948,
chapter 12, pp.315-352 (The New Deal was about FDR, who was not an
ideologue, only a good politician).
11 Mayer, Carl J. Personalizing the Impersonal: Corporations and the Bill
of Rights. (1990) 41 Hastings LJ 577. Mayer acknowledges that Supreme Court
appointments may play a minor and lagging role, but argues that corporate
strategies to a changing regulatory state have been overwhelmingly
determinative.
12 Prominent examples include the Banking Act, the National Industrial
Recovery Act, the Agricultural Adjustment Act, the Reconstruction Finance
Corporation Act, the National Labor Relations Act, and the Federal Home
Loan Bank Act; four regulatory commissions were also created, (along with
more power granted to existing agencies): the Securities and Exchange
Commission, the National Labor Relations Board, the Federal Communications
Commission, and the Civil Aeronautics Authority. The current regulatory
measures, in response to the 'great recession,' by contrast, lack similar
gravity, freeing corporate legal resources to pursue a more
offensive/rights expanding legal strategy, even as their political capital
is greater as a function of the lesser severity of the current crisis as
compared to the Great Depression. Supra notes 4-6 Most of the paper's
discussion will center on the historiography of the New Deal era, whereas
it is assumed that the claims herein about the Obama administration are
predominantly undisputed and fairly basic.
13 See Mayer, supra note 11, p. 595.
14 See David M. Kennedy, supra note 10; also Alan Brinkley, supra note 10,
argues that "attitudes toward businessmen varied greatly among 'New
Dealers,' and almost none were as hostile as their rhetoric at times
suggested" (89). Hofstadter supra note 10 links this logic to FDR himself.
15 For e.g.: "Happiness lies not in the mere possession of money;... [this]
goes hand in hand with the abandonment of the false belief that public
office and high political position are to be valued only by the standards
of pride of place and personal profit; and there must be an end to conduct
in banking and in business which too often has given to a sacred trust the
likeness of callous and selfish wrongdoing." First Inaugural Address, March
4, 1933. (Emphasis mine)
16 C. Mayer, Supra note 8. However, see also infra note 34 and accompanying
text.
17 See supra notes 1-2.
18 Id. P. 580; See also Reuven S. Avi Yonah: "The Cyclical Transformations
of the Corporate Form: A Historical Perspective On Corporate
Responsibility." Delaware Journal of Corporate Law, vol. 30, #3, pp.
767-818, 2005. Avi Yonah argues forcefully that the real entity theory has
the final and almost teleological conception of every major society of the
corporation starting with the Historical record in the Roman Empire.
19 Id., pp. 590-591; see esp. note 70: "The Court Held: 'A revocation...
was an attempt to deprive the plaintiff of its property without due process
of law, and was, therefore, void." Part of the justification for this
provision was the court's unprecedented language in Santa Clara,
personifying the corporation without granting it any explicit bill of
rights provisions; see supra note 1.
20 Justice Hugo Black, 1938; via Mayer, supra note 11, p. 589.
21 See Mayer, Supra note 11, pp. 595-596.
22 See Supra note 12
23 See Alan Brinkley Supra note 10, p. 96.
24 Ibid.
25 Ibid. p. 97
26 Schecter Poultry Corp. v United States, 295 U.S. 495 (1935).
27 See A. Schlesinger Jr. The Politics of Upheaval. Boston: Houghton
Mifflin, 1960.
28 See Brinkley, supra note 10, p. 90
29 Ibid.
30 Ibid.
31 United States v. Morton Salt Company. 338 U.S. 632, 641 (1950); Federal
Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924). Via Mayer,
supra note 11.
32 The year 1950 also marked the beginning of a new stage in regulation
that was much more intrusive toward business, mainly on environmental and
social grounds; the Fourth Annual Report to the President by the Council of
Economic Advisors, December 1949, held that central planning is
unnecessary, but that there existed a "Need for correlation of welfare
programs, especially social security, with general economic policy," and
that meant an expanded and more planned social security program, which they
are still quick to point out is not "Central Planning," but nonetheless
would create a more active role between government and business. (22-23).
This would precede a host of regulatory agencies monitoring most sectors of
every major industry, as the demand for social welfare and environmental
justice took root. The result would be a rash of new Bill of Rights cases,
leading to the outcome in corporate form we find ourselves with today.
33 See supra note 15 and accompanying text.
34 Doing so requires us to adopt a slightly broadened definition of
corporate personhood; as the Roosevelt administration's policy behavior in
the late new deal is less explicit than the writings of his Brain Trust, it
is most expedient to choose one policy area that is most representative of
the later administration's views. To do so I will examine corporate
autonomy, particularly with regards to campaign finance, specifically in
regards to the War Labor Disputes Act, which I think is a fairly accurate
representation of the spirit of the debate over corporate personhood in the
New Deal period as well as today. It is also important to note that the
press itself, receiving of special first amendment provisions, has become
much more like the corporation had imagined it would monitor, a development
that began in 1936 with Grosjean v. American Press Co. 297 U.S. (1936).
This issue is incredibly important when considering the question of modern
corporate personhood, though it was much less of an issue in the New Deal
era. See Allen D.S. "The First Amendment and the Doctrine of Corporate
Personhood: Collapsing the Press-Corporation Distinction." (2001)
Journalism, 2 (3), pp. 255-278. Though campaign finance in the 1930's is
not a perfect foil for either corporate political speech in the post-70's,
due mainly to the difference in campaign forms, there is a significant
enough connection, as will be demonstrated through the data on campaign
contributions in the 1940 elections.
35 John Dewey. The Historical Background of Corporate Legal Personality, 35
Yale Law Journal, 1926. (669)
36 A. Berle, G.C. Means (2003), "The modern corporation & private
property", Transaction Publishers, New Brunswick, NJ. See especially pp.
120-121, 197-201.
37 Pp. 1511-1515; 1539. Charles E. Merriam. "Government and Society" in the
President's Research Committee on Social Trends, Recent Social Trends in
the U.S. Merriam's only reply to that incredibly poignant rhetorical
question is as follows, elegant if not terribly edifying: "More and more
urgent is the pressure for advance in these directions, equal to the growth
of human intelligence and abreast of the new sense of human fellowship, the
feelings of social responsibility, the desire for the subordination of
power and machinery to the finest purposes of community life." Still, the
point is that he raises the question of corporations capturing government
and suggests a need to prevent this; the only thing to stop him of course
is the doctrine of corporate personhood and the first amendment.
38 John Kenneth Galbraith called The Modern Corporation and Private
Property "One of the two most important books of the 1930's," (the other
being Keynes's The General Theory of Employment, Interest and Money).
Roosevelt hadn't heard of Berle, but upon reading the book asked him to
join the brain trust. The book was also cited in the opinions of Justices
Harlan F. Stone and Louis D. Brandeis. Its undermining effect on the
natural entity theory central to corporate personhood was felt at least
until the 80's. Robert Hessen. "The modern corporation and private
property: A reappraisal." Journal of Law & Economics, 26(2), 273-289 (1983).
39 David Lawrence. "Unions Err In War on Anti-Strike Law." The Lewiston
Daily Sun, August 31, 1943, p.4
40 Senator Guffey (PA). "Prevention of Strikes in Defense Industries-
Conference Report" Congressional Record. 89th Congress, (June 12, 1943) p.
- Available from Hein Online. Also, according to the
41 See supra note 39 for a version of this very argument.
42 See supra note 10 and accompanying text.
43 See supra note 4