(In case you’re wondering: for the past several weeks, I have been enrolled in an online class exploring The Future of Constitutional Democracy hosted by Clay Jenkinson, the creator of The Thomas Jefferson Hour radio program and podcast that I have been listening to for the past 20 years. This week, participants in the class are asked to submit their suggestions for Amendments to the United States Constitution. Here’s mine:)
In his critique of the proposed Constitution that was drafted in Philadelphia in the summer of 1787, Thomas Jefferson – from his post in Paris as emissary to France – wrote to James Madison on December 20, 1787 about the need to for a Bill of Rights that would limit the new National Government’s powers and protect the Liberties of ‘We The People:’
First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations
In October 1788 – during the period when the Constitution was being ratified – Madison wrote to Jefferson about the components of a Bill of Rights, which by then several states had insisted be added to the Constitution:
With regard to Monopolies they are justly classed among the greatest nuisances in Government…. Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions…”
Nevertheless, of the several protections that Jefferson and Madison discussed , the (only?) one that did not make it into the Bill of Rights when it was ratified at the end of 1791 was any provision that would have permitted “restriction against monopolies.”
When Madison and Jefferson were talking about monopolies, the Industrial Revolution had barely begun, and the monolithic concentrations of wealth with which we are now so familiar were not even a glimmer in their imaginations.
And yet, here we are, two centuries later, with multinational corporations superseding the power of sovereign governments, and using their vast wealth to bend those governments to their will – precisely as Madison predicted: sacrificing the welfare of the many to the “partialities and corruptions” of the few.
Over the course of the past century-and-a-half, one convention that has allowed corporate power to accumulate unfettered is the notion that “corporations are people” – and therefore entitled to the same rights and privileges extended to “persons” the Constitution. This convention has taken on ominous new meaning in the 21st century with 2010 Supreme Court decision known as Citizens United, wherein money was likened to speech and so could not be restricted under the protections of the First Amendment.
Accordingly, I propose a Constitutional Amendment that would serve the neat trick neutralizing Citizens United and begin the process of restoring the sovereignty of We The People:
– – – –
The rights, privileges, and protections embodied in this Constitution, and the laws adopted under its jurisdiction, are intended for the benefit of natural persons only.
[The first iteration of this post ended with the clause: “without regard to gender, race, religion or ethnic origin. I hesitate to add the last clause, which effectively breathes new life into the languishing Equal Rights Amendment. I am reminded of John Adam’s rejoinder to Abigail, “one revolution at a time” (paraphrasing), but, hey, were just thinking here, right?]
– – – –
The origins of the “corporations are people” doctrine is vague and mercurial. What I know on the subject I learned from reading Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights by Thom Hartmann. As Hartmann tells it, the transferance of Constitutional rights from ‘natural persons’ to ‘artificial persons’ or legal fictions such as corporations was never delivered in an actual decision from the Supreme Court.
Hartmann traces the origins of “corporations are people” to a relatively obscure 1886 SCOTUS case, Santa Clara County -v- Southern Pacific Railroad – but stresses that the doctrine was not expressed in the decision in that case. Rather, it was taken for granted prior to the decision being rendered.
On p. 104 of Unequal Protection, Hartmann describes a statement made from the bench by Chief Justice Morrison R. Waite to the attorneys representing both sides in the case:
The court does not wish to hear arguments on the question of 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 of the opinion that it does.
[Waite] then turned to Justice Harlan, who delivered the Court’s opinion in the case.
Thus, according to Hartmann, the matter was never actually decided, it was just taken for granted prior to the delivery of a decision denying the right of Santa Clara County to tax the railroad in a manner unequal to other forms of taxation.
Waite’s statement was recorded in the ‘headnotes’ to the actual decision by Court Reporter (J.C. Bancroft Davis) appended to the actual decision in SCC-v-SPRR.
That statement-not-a-decision has been with us ever since – and a Constitutional amendment originally intended to assure the rights of newly emancipated Negroes has been used instead to assure those rights to corporations (so much for “originalism”).
For the sake of this Proposed Amendment, I would argue that Waite’s conclusion was ‘wrongly presumed’ (you can’t use the Justice Speak of ‘wrongly decided’ here because it was not actually “decided”). Corporations are most decidedly not like actual human persons. Corporations can
–exist in several places simultaneously
–change their identities at will
–chop of parts of themselves or
–sprout new parts
Just that first provision – that corporations, unlike “We The People” can live forever – should be enough to disqualify them from enjoying the same rights as natural persons.
And yet an obscure note, appended to a late 19th century SCOTUS decision, has bestowed the artificial persons called “corporations” with the same constitutional rights and protections accorded to actual persons. And now those artificial “persons” can spend as much money as they want to influence our political process.
A few pages further into Unequal Protection, Hartmann quotes President Grover Cleveland, who rang an alarm about corporate personhood and monopoly power in his State of the Union Address in December, 1888:
As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel. Corporations, which should be carefully restrained creatures of the law and servants of the people, are fast becoming the people’s masters.”
A Constitutional Amendment clarifying the definition of the word “persons” will eliminate the notion that “corporations are people.”
By denying corporations the rights and protections guaranteed to We The People in our Constitution, we can begin to reverse that domination and achieve the freedom from monopoly that Jefferson and Madison wrote about in 1787.