Corporations Are People?! | The Judicial Review


I can’t be the only one who finds this incredibly unsettling, right? Today, we’ll explore whether corporations are people. They are not. Thank you all for watching, and I will see
you next time. No? We’re still on? I guess I have to pretend
like this is a valid discussion. Back in 2010, the Supreme Court decided Citizens
United, giving corporations the green light to contribute to political candidates because
their expenditure of money counts as an expression of free speech. That is a real sentence I
just said, that’s where we’re at as a nation. I invite you to say it out loud without
cringing. Liberals from Jon Stewart to Barack Obama
decried the decision, whereas Republican presidential contender Mitt Romney embraced it, dismissing
his protesters by claiming: Romney: “Co-corporations are people, my
friend.” A few years later, Washington Post columnist
Catherine Rampell suggested that people should start identifying as corporations, as the
latter enjoy much greater freedom in the U.S. today. It was obviously a tongue-in-cheek
statement, not something she actually believes, but it did get me thinking, what stage of
capitalism is it when we are freer as corporations than we are as people?
As it turns out, corporate personhood is not a new thing; in fact, it’s as American as
ethnic erasure. Shoot, “apple pie.” Ugh. I meant to say “apple pie.” “It’s
as American as apple pie.” Yes, yeah, that; good save.
Before we move on, I just want to lay out some foundations, based on what I’ve seen
in the discussion on this matter. For starters, when we talk of corporations and corporate
law, we usually refer to both for-profit businesses and labor unions. Keep that in mind throughout
this discussion. Also, if corporations are not people, then
what are they? Are they anything? Do corporations exist? Yes, yeah, of course
they do, as a legal entity, which is different from a natural entity like you and I. Expanding upon this last point, Jon Garthoff
of the University of Tennessee argues that corporations lack phenomenal consciousness.
We can experience the world, we can question dogma, and we can curl in a corner and wallow
in the meaninglessness of existence and the fleeting nature of happiness, and all that
affords us a high level of moral protection. Corporations do not have phenomenal consciousness,
hence they deserve human rights about as much as buses do.
With that out of the way, let’s look back at the origins of corporate personhood.
We can trace this tendency of giving corporations rights as far back as the time of Emperor
Justinian I, which I guess makes this a staple of Western Civilization. (Except, Justinian
was the emperor of the Eastern Roman empire, so… does that count? I don’t think that
counts. Leave a comment to settle whether this counts or not.)
This practice got a boost in the middle ages, as institutions including churches, guilds,
and municipalities became recognized as legal persons. But corporations as they exist today
are largely a product of industrialization in the 1800s. As professor John Coffee of
Columbia University claims, “only the corporate form offered limited liability, easy transferability
of shares, and continued, perpetual existence.” This was very appealing to the emerging capitalist
class, who would proceed to wreck our constitutionally protected rights in exchange for vulgar amounts
of wealth. That, I believe, is an important distinction;
throughout history, associations of different forms have gotten legal recognition, but now
we’re moving into the time when corporations got full constitutional protections, a huge
step up from where they had always been. This officially started with Bank of the United
States v. Deveaux, decided by the Supreme Court in 1809. The question in this case was
whether corporations could sue and be sued in federal courts as citizens for purposes
of diversity of citizenship jurisdiction. The Court ruled that the bank was a citizen
under these conditions, but the bank couldn’t proceed with its suit because it lacked the
diversity standing. Regardless, this case opened the door for corporations to claim
liberties of citizenship. The first big instance of that was Dartmouth
College v. Woodward in 1819, when the privately owned Dartmouth College claimed protection
under the Contract Clause of the Constitution. Following the Revolutionary War, the State
of New Hampshire demanded ownership over the college, originally established through a
charter issued by King George III. The trustees resorted to the Supreme Court, which upheld
the charter in a ruling that affirmed the right of corporations to invoke the Constitution
on their behalf. I just want to make a little side note to
point out that this precedent was well established by the time the Court decided Dred Scott v.
Sandford in 1857, where they ruled in favor of slave owners because property is not people,
so we’re off to a great start! For a hot minute, the discourse centered mostly
on property rights, but that changed after the passage of the 14th Amendment, which superseded
Dred Scott and affirmed that blacks born in the U.S. were, in fact, people and, as such,
they deserved equal protection under the law. And because apparently we can’t have nice
things, in came the robber barons to hijack the concept of personhood to line up their
pockets. Here, I’m referring to Leland Stanford -Holy
moley! This man has the stare of a cartoon villain. Look at that! Where was I? Oh, yeah.
Uh. Stanford was the owner of the Southern Pacific Railroad Company, and his company
sued a California county over a tax on railroad property. His main argument was that the tax
was discriminatory under the Equal Protection Clause of the 14th Amendment; if discriminating
against a racial identity is unconstitutional, then so is discriminating against a corporate
identity. Because… ‘corporate’ is a race… or… something…
U.S. Senator Roscoe Conkling, one of the authors of the 14th Amendment, served as an expert
witness for the company in the 1882 case San Mateo County v. Southern Pacific Railroad.
He argued that equal protection was not meant to be limited to natural persons, and presented
as evidence an unpublished journal recounting the congressional drafting of the Amendment.
Being the last living member of the drafting committee, there was no one to debunk his
narrative. Historians would eventually discover that the journal did not corroborate Conkling’s
story; corporations were simply never mentioned in the drafting of the 14th Amendment. In
the end, San Mateo wasn’t resolved in court, as Southern Pacific decided to settle.
Then the same question was raised again in Santa Clara County v. Southern Pacific Railroad
in 1886. Curiously, Conkling’s journal was not brought up this time, and the Court did
not make a decision concerning the personhood of corporations; but this was not what the
public was told. The reporter of the decision at the time was
J. C. Bancroft Davis, former president of the Newburgh and New York Railway Company
(conflict of interest, much?), and he reported that the Court did in fact decide that corporations
are people under the 14th Amendment. The publication, rather than looking into the decision of the
case (as any honest interpretation of the ruling would have done), drew this conclusion
from a headnote written by Chief Justice Morrison Waite, which read that “[t]he 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 opinion
that it does.” A headnote is not supposed to be binding, it’s just supposed to be
the opinion of a member of the Court during deliberation. That the personhood of corporations
rose not from the decision but from a mere freaking headnote makes of this whole situation
nothing short of a hoax. (But hang on, the plot thickens!)
Justice Stephen J. Field, an ardent opponent of (dirty, naughty) socialism exploited this
misinformation, writing two years later in Pembina Consolidated Silver Mining Company
v. Pennsylvania that Santa Clara had endorsed corporate personhood, even though he was literally
there when that didn’t happen but the state is evil and corporations are holy so bless
his heart! From then on, Santa Clara would be used in many cases during the Lochner era,
the time the Court kept the political branches bound and gagged while corporations gleefully
abused the public. A decade after Santa Clara, in a move that
should shock no one but is still pretty disgusting, the Court decided that blacks were not entitled
to equal protection, even though that had been the point of the 14th Amendment all along.
Moreover, as UCLA professor Adam Winkler notes, “[b]etween 1868, when the amendment was
ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African
Americans and … 312 cases on the rights of corporations.”
After the end of the Lochner era, we didn’t see much development of corporate personhood
until the 1970s, when First National Bank of Boston v. Belotti took place. At issue
in Belotti were corporate contributions to political campaigns concerning ballot initiatives.
This case happened four years after Buckley v. Valeo, the decision that found that money
is a form of speech. So, the bank argued, its financial contributions were a form of
speech. The Court in Belloti ruled in favor of the bank, using the reasoning of Santa
Clara to back up the idea that corporations -as people- have a 1st Amendment right to
spend repugnant amounts of money in political endeavors. The ‘money as speech’ deal
is a whole different beast on its own, and we will tackle it in due time; for today,
know that corporations have rights to free expression like the rest of us do, except
they have butt loads more capital to invest toward that end.
Curiously, Justice William Rehnquist, a conservative hero appointed by none other than President
Dickey Nixon, opposed the majority’s decision. As he viewed it, quite correctly if not prophetically
I’d say, corporations are “artificial” persons and them having a right to political
expression would “pose special dangers in the political sphere.” (Rehnquist might
have been wrong in much of his jurisprudence, but he nailed it on his assessment of Belotti,
much to the detriment of the republic. To be fair, the danger he saw might have been
the strengthening of labor unions and he probably figured that it’d be best to sacrifice business
interests instead, but, hey, I’ll take what I can get.)
Fast forward to 2010 and we get the much dreaded Citizens United. By now I’m sure you’ve
realized that just abolishing Citizens United will barely scratch the surface of the manure
pile that is corporate personhood. That said, it only gets worse from here. Citizens United
was similar to Bellotti in that the matter at hand was corporate contributions to political
campaigns as a form of free speech. The difference is that Bellotti focused on ballot initiatives,
but Citizens United took it a step further by focusing on the candidates themselves,
which is much more significant because elected politicians have so much more control over
the nation than do mere initiatives. This decision gave corporations the power to drown
the voices of actual human beings standing from the grassroots who simply could not match
the expenditures of business entities. Finally, in what I honestly think is no hyperbole
to call the height of absurdity, corporations started claiming 1st Amendment religious exemptions
in Burwell v. Hobby Lobby. In a few words, Obamacare required employers to cover some
contraceptives for their workers. Hobby Lobby Stores opposed this contraceptive mandate
on religious principles, as the sanctity of the not-yet-fertilized-but-still-potentially-fertile
egg comes before the sanctity of an adult’s bodily autonomy. (I’m not even exaggerating,
the contraceptives listed included IUD’s, which prevent fertilization from occurring
in the first place, but I guess in their view that’s no different from killing a child.
Like, I cannot with these people.) The Court sided with the company, claiming that the
mandate was too restrictive in a decision hailed as a victory for ‘religious freedom’
advocates and as a kick in the gut for the rest of us with a minimum degree of decency.
On top of these cases granting corporations human rights, Stetson University professor
Ciara Torres-Spelliscy points out further cases that have put corporations above us
all in matters of accountability. Specifically, she mentions Jesner v. Arab Bank, a decision
from last year giving foreign corporations impunity from being sued in our federal courts.
The plaintiffs in this case were the victims of suicide bombings and the families of victims
killed in terrorist attacks financed by the Arab Bank, an institution referred to by the
U.S. government as a ‘constructive partner’ in the war on terror. Because, you know, if
you’re a private business furthering the goals of military expansionism, then, I guess
the destruction of human life is just no big deal. Yeah, th-this absolutely makes sense.
During my research, I’ve come across some essays defending, and even praising, corporate
personhood. They usually mention how corporate usage of human rights allows for a free press
and relieves corporations from the fear of being stormed by government agents. Quite
frankly, I find this to be a pretty shameless motte and bailey. Of course the press should
be protected from government censorship, and of course organizations should not have to
fear reprisal by the government. (Isn’t that right, COINTELPRO? Wink, wink.) But to
use that to advocate for corporate interference into our democratic process or for corporate
oppression on the basis of free religious expression is maybe a tiny bit of a stretch.
Adding to the discussion, University of Vienna professor Martin Kusch makes the point that,
if corporations are people, then they must receive not only human rights but human respect.
This respect, however, stands in contradiction to the sales and purchases of organizations,
which is really just ‘corporate slavery.’ Hence, we gotta ask: are corporations people
and therefore not to be enslaved, or are corporations marketable and therefore not respectable as
people? I don’t think this is a difficult question.
And yet, we see the ever-increasing marketization of our political discourse, as we devolve
from a role of active citizens to one of passive clientele. Luigi Cerri observed this phenomenon,
noting that corporations quashed our human drive to create and engage and replaced it
with an artificial need to consume. In doing so, these same corporations took for themselves
the power to shape political outcomes, from the loosening of regulations to the instilling
of widespread anxiety among local governments to increase business privileges in order to
‘stay competitive.’ As a result, corporations now hold the leash over all levels of our
body politic, all for the sake of maximizing profit. If this situation isn’t peak neoliberalism,
I don’t know what could be. The greatest irony of it all is that, to the
extent that our government is truly democratic, these very regulations are the result of the
democratic will of the people. Still, organizations have come to dominate the electoral process
by claiming to be equivalent to people and they have instituted their mandate while lacking
any serious form of public support. The pieces have fallen into place, and our political
system has fully become oligarchical in nature. And while they control our institutions, most
of us are kept numb, and the ones who aren’t are silenced by the massive corporate influence
on the discourse. Truly, the fact that corporations get to claim all the good stuff a person should
be entitled to while literal human beings are systematically denied fundamental liberties
due to immutable characteristics like race, sex, or land of origin, speaks volumes of
the completely screwed up nature of our political environment.
We must stand against this framework, as daunting as the task may seem, if we are ever to recover
our agency as political creatures capable of shaping our own fates.
Whew, that was a lot! That’s what I got for today. If you appreciated this lesson,
let me know; if you want more, then make sure the bell is ‘on’ for more. Comment, share,
you know the drill; we gotta keep the algorithm moving. Before I leave, I just wanna mention
real quick that I will be switching from my former video format to this more audio-focused
style. The edition was starting to take a toll on me and I just got started, so I figured
I should tone it down and adapt onto something more manageable rather than slow down my content
production or lower the quality of my message. I guess it’s all about trial and error,
and I’m excited to see how this channel will continue evolving as it grows. As always,
I thank you all so much for your time, and I’ll see you right here in the next one.

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