January 30, 2010

We the People

Isn’t it interesting what our kids don’t learn in school?

Even many educated people seem never to have learned that some of the earliest British colonies were corporations chartered by the King of England. Take for instance the 1628 creation of the Governor and Company of Massachusetts Bay, granted to a group of Puritans. The result was a theocratic Massachusetts with political power held by staunch Puritanical believers.

In 1636 we see the chartering of the Rhode Island colony by a group of disaffected Massachusetts Bay folk, then the Connecticut colony followed in 1662. These early American corporations were forced under terms of their charter to deal strictly with the British East India Company, and under some very disadvantageous terms.

That was the way it was until the American Revolution, which began as a rebellion more against the East India Company than of the Crown.

Our founders held a deep distrust of corporations. So much so that Thomas Jefferson offered freedom from monopolies as part of our Bill of Rights. The proposal failed to gain acceptance, and later Jefferson wrote, "I hope that we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country." [1]

But corporations survived, and in 1886 SCOTUS inadvertently decided that a private corporation is the same as a person, and entitled to the same Constitutional protections as any other person.

The Controversy

The case that did it was Santa Clara County v. Southern Pacific Railroad (1886), and according to the records, Associate Justice Morrison Remick Waite, before the opening of argument, stated aloud 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.”

The court reporter, former judge and lawyer J.C. Bancroft Davis, later entered into the summary record of the Court's findings that, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”

Thus Davis took Waite’s words, twisted them and granted something to corporations which was never even discussed. It was never the intent of SCOTUS to make that statement, and the full text of the opinion says no such thing. The case was brought as a complaint by the railroad about the taxing of fences bordering rail lines, and the railroad won. There were no arguments relating to corporate personhood or corporate rights under the First Amendment. The whole corporate personhood thing is a sham.

Corporate personhood came to be simply because of an off the cuff statement of a single justice, and the brief summary written by Court Reporter Davis. Davis himself becomes suspect in a fraud, and it has been alleged that he was bribed. After 150 years we shall never know for certain, but it is perhaps relevant that Davis was the former president of Newburgh and New York Railway Company.

The concept of corporate personhood generates some interesting questions. If the corporation enjoys the same rights as a person under the First Amendment, would it not also enjoy equally the rights protected by the full Constitution and all the amendments? Should a corporation have the right to vote? Join the military? Marry your daughter? Be called for jury duty? If a corporation is suspected of a crime, can it be remanded for trial?

I think probably not, and I further think that allowing corporations shelter under the First Amendment is a disastrous idea. Since the Constitution makes no mention of corporations, it seems clear that the law that has been promulgated under this “decision” is an attempt at rewriting the Constitution to suit the needs of the corporation, and nothing more. The fears of our founders have been realized.

"Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

Abraham Lincoln wrote these words[2] in 1864, twelve years before Bancroft Davis took it upon himself to grant the protections of our Constitution to the very entity Lincoln, and our founders, despised.

[1] The Populist Moment: A Short History of the Agrarian Revolt in America, Goodwyn, L.

[2] Abraham Lincoln: A New Portrait, Hertz, E.



oldweirdlibra said...

What recourse can an individual have against the personhood of corporations? I don't think writing to my "representatives," who so seldom represent me in other matters, would have much effect.