Let me be clear. I want to draw your attention to the work of others.
First, in today's Boston Globe Derrick Jackson has offered Follow the campaign money which begins
IT TOOK just one election for the worst fears of John Paul Stevens to be realized and for us to see how much democracy we have lost.
And that's just the start.
Second, the work of historian Thom Hartmann, who has written cogently on the background of the Santa Clara County v Southern Pacific Railroad case whose headnote (which is supposed to carry no legal weight) is the source of the principle in federal jurisprudence that corporations are persons. Joshua Holland has an interview with Hartmann at Alternet, titled The Supreme Court Sold Out Our Democracy -- How to Fight the Corporate Takeover of Our Elections. I think both are must reads. It is because I read both I came up with the title I applied to this.
First the Jackson. He is lamenting the impact of Citizens United upon our political processes, something painfully obvious this cycle. The words immediately following those I have already quoted:
Stevens wrote the blistering dissent in the bitter 5-4 Supreme Court "Citizens United’’ decision in January that lifted restrictions on election campaign spending by corporations and unions. He said the conservative majority rejected "the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding.’’ Stevens said the decision "unleashes the floodgates’’ of corporate and union spending and will "cripple’’ the ability of ordinary citizens, Congress, and the states to withstand "corporate domination of the electoral process.’’
After exploring the spending both of Republican groups and the two big unions, AFSCME and SEIU, on behalf of the Democrats, Jackson concludes:
This is a loss of democracy far more worthy of the anger of Americans than perhaps anything else at the moment, far more important than anything that the Tea Party is railing about. Justice Stevens wrote, "When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity as citizens to influence public policy.’’ The turnout on Nov. 2 will tell us how much faith has been lost. This is an election where Americans are voting less for a candidate than for a corporation.
My only quibble with that final paragraph is that at least for some Americans they are voting not for a corporation, but against the corporate influence, and more would do so, as the polling data makes clear, if only they fully understood what was going on.
That brings us to Hartmann. I had not realized how thoroughly he has explored the history of the Santa Clara case, something that becomes totally clear in the interview. What jumped off the page for me as conclusive evidence of his argument is something I tried to find by searching online but could not. Hartmann writes
In fact, Steven J. Field actually wrote a dissent in Santa Clara County v. Southern Pacific Railroad, in which he loudly complained about the fact that they hadn’t established corporate personhood. And you'd think somebody would read the damned thing!! You know?
That caught my attention. And here's the rub: try searching the various sites that provide the text of Supreme Court Opinions, such as Findlaw and Justia. I did, and neither provides a copy of Fields' dissent.
This is important for several reasons. Field had been a railroad lawyer. He was then a judge on the 9th circuit, where he was a responsible for a body of cases which in fact were declaring that corporations were persons under the 14th Amendment, but the Supreme Court had never addressed the issue. When the Santa Clara case came up, the Court disposed of it de minimis by applying the applicable California jurisprudence - the issue was that two counties were taxing the railroad at different rates, which was in fact allowable under California jurisprudence (I am simplifying). Field was outraged that the Court had not issued a proclamation on his pet issue, hence his dissent.
But then there's the headnote, which has been perpetuated ever since - check the syllabus at any site summarizing the case, and the myth that the case established the full personhood of corporations was born and perpetuated. In later cases Field used it as a precedent to more firmly establish the principle of corporate personhood.
It is also worth noting that Field was in the majority on one of the worst perversions of the Constitution ever, and it again dealt with the 14th Amendment. He was in the majority for Plessy. By then he was practically senile, and his colleagues on the Court were trying to get him to resign.
I want to quote another piece from Hartmann dealing with Justice Rehnquist and a dissent in a 1978 case called Boston v Belotti:
And in that case, Justice Renquist -- who, regardless of what you think of him, was one of the most brilliant jurists of our time -- wrote a dissent in Boston v. Belotti. And in that dissent -- what I'm giving you is my bad paraphrasing of it -- Renquist said, "Back in 1886, in Santa Clara County v. Southern Pacific Railroad, this Court, without the benefit of public debate or discourse, decided that corporations have equal rights under the 14th Amendment." Then he went on to say how he thought that it was a wrongly decided case.
So let's parse what we have.
- Santa Clara did NOT establish the principle of corporate personhood.
- The Justice who was the strongest advocate of the principle filed a dissent in the case that complained that the Court had not established the principle.
- The head note stated that the principle was established.
- That Justice acted in subsequent cases as it Corporate Personhood was in fact established.
- The dissent offered by Justice Field is apparently not available online
- The syllabus one reads about Santa Clara states the principle was established.
- In 1978 Justice Rehnquist, mistakenly believing that corporate personhood had been established, in a dissent said the case was wrongly decided without proper vetting of the idea.
- Citizens United is an impossible conclusion to reach absent the idea of Corporate personhood, which was never properly established by SCOTUS, even though subsequent decision relied upon it.
- The appropriate action for the Court would be to overturn all jurisprudence based on the mistaken notion that the 14th Amendment established corporate personhood - that would include Citizens United
- Justice Stevens was more than prescient in his dissent in Citizens United, as Derrick Jackson clearly demonstrates, and it is not just corporations, but also unions.
And my conclusion? The problem is those tilting towards the corporations have never cared about proper jurisprudence. Field was not the first nor the last to pervert his power on the Supreme Court for the benefit of the powerful and the corporate interests. The Supreme Court also originally turned the Sherman Anti-Trust Act against unions, not its intended target of corporations.
If this is not addressed and soon, there will be no more democracy. If corporations are persons, they will be able to successfully argue against net neutrality as an infringement upon their economic interests as persons. Once net neutrality disappears, even our ability to communicate as we do now, and thus occasionally force the MSM to pick up and explore issues we first raise will disappear. Given how much of the MSM is either in financial trouble or already owned by larger corporate interests (check the networks for example), the corporate domination of America will finally be complete.
Go read both pieces. The Hartmann is long, the Jackson is short. Both are worth your time.
I am a person under the Constitution. I fail to see how a strict constructionist or an originalist can argue that the 14th Amendment makes Goldman Sachs or the US Chamber of Commerce or SEIU or BP a person in the way I am. If they are, then my personhood is diminished, because I can never hope to have the economic power that they do. The only counterweight to that economic power is the collective power of real persons.
One last thing. I look at the Preamble. When I read "We the People of the United States" I somehow do not think the Founders intended corporations to be included in that formulation. If they did, then I have been wasting the past decade or more of my life in teaching government, because that is not what I have been teaching. Nor am I willing to teach that perversion of the principles behind the establishment of our government.