Are Corporations People?
“Corporate personhood” is an incomplete shorthand in the same way that “overturn Citizens United” doesn’t encompass the entirety of the problem of money dominating politics in America. When people from organizations like Move To Amend say corporate personhood, what they usually mean by “corporate” is all legal fictions, including corporations, non-profits, unions, NGOs, PACs, political parties, incorporated towns and cities, and all other forms of organization that are created in charters granted by government agencies. And what they usually mean by “personhood” are the Constitutional protections afforded to those legal fictions that the Founding Fathers had originally reserved exclusively for individual citizens (We the People). The distinction between “natural” and “artificial” personhood is what is often lost in the translation to English from the legal pig latin of jurisprudence.
After the American Revolution, our legal system was largely founded on British Common Law, which dates back to the creation of the Magna Carta and included an understanding that legal fictions, like the British East India Company, were “artificial persons” for purposes of the law. Artificial personhood allowed those entities to enter into and break contracts, to negotiate, to sue and be sued, collect fees, distribute wages and pay taxes to the crown. This did not grant those entities any rights. All the things an artificial person could do were considered “privileges” that could be revoked by the monarch (or Parliament) if the artificial person wasn’t living up to the requirements of the charter that brought it into being.
This basic structure of artificial personhood, as separate and distinct from the “natural” personhood that describes living human beings, was carried forward into American law and confirmed in the first Supreme Court ruling to acknowledge it, Dartmouth College v. Woodward, in 1819. It should be remembered that not all living human beings in America were considered “persons” at all, or at least in full, in the Constitution at that time. Some of the Founders wanted to exclude African-American slaves from personhood entirely, but others wanted the political power their numbers could afford in a representative democracy, so the three-fifths rule was incorporated in the U.S. Constitution as a compromise. And even free white women, while not enduring the indignity of slavery, were nonetheless considered “property” for all intents and purposes in the law. With barely 5% of the nation eligible to vote under state law, in accordance with the federalist construction of the original Constitution, and not many more eligible to even own property, the notion of “natural” personhood for artificial creations of the state would have been anathema to the Founding Fathers.
An important piece of the following statement by Thomas Jefferson, in a letter to George Logan on November 12, 1816, has been circulating on the web for a long time. There’s nothing wrong with clipping out the quote but the full letter is fascinating and worth a look in its original form. But you can get the full context with this much [emphasis added]:
“I do not believe that in the four administrations which have taken place, there has been a single instance of departure from good faith towards other nations. We may sometimes have mistaken our rights, or made an erroneous estimate of the actions of others, but no voluntary wrong can be imputed to us. In this respect England exhibits the most remarkable phenomenon in the universe in the contrast between the profligacy of its government and the probity of its citizens. And accordingly it is now exhibiting an example of the truth of the maxim that virtue and interest are inseparable. It ends, as might have been expected, in the ruin of its people, but this ruin will fall heaviest, as it ought to fall, on that hereditary aristocracy which has for generations been preparing the catastrophe. I hope we shall take warning from the example and crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” ~Thomas Jefferson
Despite the best efforts of corporate owners and executives, including the earliest railroad magnates, this separation of natural and artificial personhood remained intact for the first hundred years of the U.S. Constitution’s existence. But so did slavery for most of that time and it was a difficult argument to make that artificial persons should have rights when entire classes of natural persons (blacks and women) were still considered property. It was only after slavery was abolished that the foundation was set for the rise of the corporation as “natural” person.
This came about as a result of poor wording in one of the post-Civil War (13th, 14th and 15th) amendments, which together were designed to abolish slavery and grant citizenship, and the right to vote, to African-Americans, including former slaves. The 14th Amendment, the linchpin to corporate personhood, should have been worded to specifically exclude artificial persons but neither the word “artificial” nor “natural” was used in the amendment at all. The critical first section reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens 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 within its jurisdiction the equal protection of the laws.”
One would think using the terms “born” and “naturalized” would be sufficient to convey that this section defines “natural” persons, but there’s just enough wiggle room between “citizen” and “person” to get away with defining corporations as persons. That failure to include the word “natural” in this first section of the Fourteenth Amendment provided a loophole that was exploited to grant increasing levels of “natural” personhood to corporations in a series of Supreme Court rulings over many decades. Whether that wasdone intentionally or not is inconsequential at this point. What is very consequential is its impact on history — the law, the economy and political power in the United States and around the world.
Corporations can now claim constitutional civil rights and do so on a regular basis. The Fourth Amendment is used to prevent OSHA from making surprise inspections of work sites to make sure workers don’t get injured or worse. The Fifth Amendment is used toprevent the government from enforcing product labeling standards. And those aren’t examples of legislation. That’s what happens in the courts. That’s how we got Citizens United, a case the Supreme Court turned into a sweeping First Amendment ruling even without any urging from the plaintiff. Corporate personhood lies at the heart of all of these cases and more. We the people don’t mind granting privileges and immunities to allow corporations to become financially powerful. We do mind them using those same privileges and immunities to accumulate political power and use it to write laws intended to enshrine their supremacy forever.
Abolishing corporate personhood is not about demolishing corporations or capitalism or anything as radical as a complete overhaul of our economic system. It’s simply putting the reins back on the artificial entities that the Supreme Court has allowed to run amok in our economy, politics and legal system for decades. Governments are our creations. Corporations are the governments’ creations. We cannot continue to allow the creations of our creations to have control over the destinies of the original creators — we the people. Enough is enough.
