ZEPERNICK: On the history of corporate personhood and a strategy for overturning it

March 31, 2010
Mary Zepernick

WILPF, POCLAD and North Bridge Alliance for Democracy have been allies since the latter two organizations’ founding some 15 years ago, though WILPF has 95 years on the other two. And here we are on the Steering Committee together of the campaign to Legalize Democracy: movetoamend.org. On occasions like this I describe myself as a reconstructed US history teacher doing penance. Of the many lenses through which to view US history, one that is central to our purpose this evening is: Who is and who is not a person under the law? And what does this mean for our ongoing quest to be truly self-governing? At the outset, legal persons were white propertied men, 55 of whom gathered in Philadelphia in 1787, closed their doors and replaced the Articles of Confederation with the Constitution – sealing their records for half a century. The historian James Beard referred to them as the well bred, well fed, well read, and well wed! Cape Cod’s revolutionary pamphleteer and playwright Mercy Otis Warren when the new document was unveiled: the Senate is too oligarchical, the country is too big to be governed by a strong federal system, and where are the rights of the people? Mercy would be even more outraged to learn that the three Democratic and three Republican Senators brought together by Max Baucus in search of a health insurance plan are from states with a combined population of 8.4 million, 2.7% of the US population. The country is many times larger now and still in the hands of a strong federal government, despite growing dissent. And the rights of the people have been hijacked by property’s most powerful expression, the corporate form. A significant Court decision in 1803 set the stage for subsequent judicial supremacy, all the way to Citizens United v FEC and beyond, until we change it. Chief Justice John Marshall established in Marbury v Madison: the principle of judicial review: the right of the federal courts to review actions of executive or legislative bodies to determine their consistency with statues, treaties or the Constitution. Then President Thomas Jefferson wrote: “ To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Given the oppressive role of the Crown trading corporations and colonies under the British, post-revolutionary corporations were small, relatively few in number, and restricted by the conditions of their charters, which were often amended or revoked by state legislatures or courts when violated . An example of the prevailing political culture regarding corporations is the PA legislature’s declaration in 1834: "A corporation in law is just what the incorporating act makes it. It is the creature of the law and may be moulded to any shape or for any purpose that the Legislature may deem conducive for the general good." This was no golden age of democracy, but the corporate form was in the appropriate subordinate relationship to the people’s representatives – not withstanding the fact that at this point legal persons still consisted of white men, usually propertied.More than a century later, Justice Felix Frankfurter described the modern corporation this way: “Today’s business corporation is an artificial creation, shielding owners and managers while preserving corporate privilege and existence. Artificial or not, corporations have won more rights under law than people have– rights which government has protected with armed force.” So what happened between the Pennsylvania legislature’s and Justice Frankfurter’s description of the corporation role’s in society? The short version is that by the mid-19th century, the industrial revolution, the growth of railroads and banking, then the Civil War saw an increase in the size and wealth of corporations. Corporate executives and lawyers sought ways to slip the bounds of their charters, bringing case after case up through the federal court system. As you probably know, they hit pay dirt in 1886, in an otherwise insignificant tax case. A since-disputed headnote in Santa Clara v. Southern Pacific Railroad declared the corporate form a person under the 14th Amendment to the Constitution. Of the three so-called Civil War Amendments – the 13th abolishing slavery and the 15th granting black males the vote – the mighty 14th was the corporate prize. Here is the relevant passage for our purpose: No state shall make or enforce any law which shall abridge the privileges or immunities 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 with its jurisdiction the equal protection of the laws. Due process and equal protection WILPF’s timeline includes the corporate “person’s” Bill of Rights protections that flowed from the Santa Clara decision; here are some examples:

  • 1893: due process of the 5th Amendment
  • 1906: “search & seizure protection of the 4th Amendment
  • 1908: 6th Amendment right to trial by jury
  • 1922: “takings clause” protection of the 5th Amendment
  • 1976: 1st Amendment: “Political money is equivalent to speech” (Buckley v Valeo)
  • 1977: 1st Amendment used to void a Massachusetts law restricting corporate spending on political referenda

A similar timeline could be constructed for the slow march of rights gained by women, including the Suffrage Amendment in 1920. Not until 1971 was the 14th Amendment ruled to apply to women, though it was assumed in earlier cases! For WILPF’s campaign to Challenge Corporate Power, Assert the People’s Rights, AfD and WILPF and AfD members Jan Edwards and Bill Meyers coined the phrase: Slavery is the legal fiction that a person is property, and corporate personhood is the legal fiction that property is a person, In 1857 the Supreme Court declared in Dred Scott v Sandford: "The right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like any ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every state that might desire it...And no word can be found in the Constitution which give Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights." Ten years after the Santa Clara decision on corporate personhood, the Supreme Court declared in Plessy v Ferguson, 1896, that separate but equal accommodations were legal.Thus African Americans saw their personhood diminished, even as the corporate form continued to accumulate power based on corporate constitutional rights. Half a century later, Brown v Board of Education in effect reversed Plessy. However, early last year the Supreme Court overturned desegregation plans in Seattle and Louisville. And women’s right to abortion, Roe v Wade, 1973, has been steadly assaulted and eroded. Thus our struggle continues between justice and equality for natural persons and the illegitimate rights of the so-called corporate person to usurp our promised self-governance. May we seize this opportunity to see that the Supreme Court has at last overstepped its bounds! According to Larry Kramer, author of The People Themselves, American revolutionaries considered the notion of "Popular Sovereignty" more than an empty abstraction, more than a mythic philosophical justification for government. The idea of "the people" was more than a flip rhetorical gesture to be used on the campaign trail. Ordinary Americans once exercised active control over their Constitution. After the initial shock at the 5-4 decision in Citizens United v FEC, dropping the remaining barriers to corporate funding of the people's elections, many of us realized that Court had actually handed us a great opportunity. In the 15 years that AfD, POCLAD, WILPF and a growing number of allied activists have focused on illegitimate corporate power and rights, there has never been the ferment in the press and populace that this case has created. Why is the Campaign to Legalize Democracy: movetoamend.org using a broad amendment strategy? In effect, we are seizing the opportunity to exercise active control over our Constitution – not a document belonging to the Courts, nor to the Congress nor to the Chief Executive, but to us, the people's Constitution. At this stage, no one knows the"right" path to take. This is a long term, multi-layered challenge. It's not a contest but a collaboration between two approaches (and probably more to come). Given the nature of the case itself, it's logical and useful to have a focus on the First Amendment: freespeechforpeople.org. It's logical for those of us who have been organizing around "legal" but illegitimate corporate constitutional rights to seize this opportunity to raise a range of issues and to go for what we want and need: like the examples in my talk's short list of cases, taking back our rights from the corporate form. In the wake of a retreat in California following the September rehearing of the case, these two approaches began to form. Since then the email dialogue representing a range of people and views in both budding campaigns has been vigorous, respectful and fruitful. The Campaign To Legalize Democracy; movetoamend.org aims to claim and make real in law and practice our birthright of self-governance. The Steering Committee, representing 15 organizations, and dozens of partners and endorsers believe that the Supreme Court is misguided in principle and wrong on the law. Thus we reject the U.S. Supreme Court's ruling in Citizens United, and move to amend our Constitution to:

  • Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
  • Guarantee the right to vote and to participate, and to have our votes and participation count.
  • Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments.
Additional Information: 

Mary Zepernick is the Director of POCLAD (Program on Corporations, Law and Democracy).

Move To Amend is pushing forward with the Constitutional amendment Ms. Zepernick refers to.