Blog Credo

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

Tuesday, March 25, 2014

Corporations Are People, Too, My Friends

It's just that they're assholes.

As we saunter through the new Gilded Age, it is worth contemplating the origins of corporate personhood.

Corporations were made people by a Supreme Court court reporter, who not coincidentally was a railroad official before working for the Supremes (many of whom had been... railroad lawyers).  In the Santa Clara decision, Bancroft took a position that Chief Justice Morrison Waite expressed orally and added it to the final decision.  Here is what Waite said:

"One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: 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."

The problem is that the case in question had nothing to do with equal protection of laws.  Which is why Waite didn't want to argue about that.  But by adding this interpretation, the Santa Clara case has become extraordinarily important in this post- Citizens United world.

The basic idea of corporate personhood should be extended to contract law.  Corporations must have the same legal rights to enter contracts as regular humans.

But that's not the same as having Constitutional rights.  The idea that a corporation enjoys the same rights as an individual is absurd.  For instance, Citizens United says that corporations have the right to free speech.

Yet who makes the determination what to say?  The President?  CEO?  The Board?  The shareholders?  Corporations have no individual rights because corporations are not individuals.

The greater perversion of the idea of corporate personhood arises out of the history of the 14th Amendment.  The Mighty Fourteenth was designed to do several things to resolve issues attendant to Reconstruction.  But the most important thing it was designed to do was to overturn Dred Scott and that "a black man had no rights that a white man was bound to respect."  The Fourteenth was designed to give citizenship to the Freedmen.  And then it was to make sure that ALL citizens have rights.  Previous to the Fourteenth, the Bill of Rights applied only to the NATIONAL government.  Any rights from the states would have to be the state constitutions.

So the corporate lawyers nominated by such worthies as Ulysses S. Grant, Rutherford B. Hayes, Chester Arthur and James Garfield basically re-wrote the Fourteenth Amendment as a form of corporate protection clause.  At the same time, they were stripping away the Fourteenth Amendments protections for African Americans in the Slaughterhouse Cases and the Civil Rights Cases.

It's a travesty.

And it's a travesty that leads directly to Citizen's United.

And it could very well lead to a further tragedy if the "Free Market" Five decide to apply religious exemptions to the ACA in order to exempt it from contraception coverage.

The only possible solution would be a constitutional amendment stripping corporations of their personhood for anything but contract law.

And while that would be most welcome, it would be impossible with the dysfunction that we currently see in our government.

Welcome to the plutocracy, plebes.

No comments: