We Should Amend the Constitution to Eliminate Corporate 'Personhood'

Ah, 2008. The runes are cast, the tea-leaves deciphered, the stars aligned. This year - this election year in the US - this is the year of 'change'. So, if it's change you want, why not grab the bull by the horns? Let's correct the most egregious and consequential error of gilded-age jurisprudence. Now is the time to end the hegemony of the corporation by explicitly denying them certain privileges that are rightly reserved only for living, breathing individuals. Now is the time to end so-called corporate 'personhood'.

For those readers not familiar with the topic, corporate personhood refers to a set of legal precedents that grant certain constitutional rights to corporations as if they were natural persons. These rights include free speech, protection against search and seizure, protection against self incrimination, and equal protection under the law. Most of these rights are derived from the 14th amendment's equal protection clause, which has been interpreted to apply the protections of the federal constitution to state law (before this precedent was set, states were free to impinge the rights of their citizens to whatever extent their state constitutions allowed). The origin of the concept of rights for corporations has deep roots in US (and English) legal history. It was generally accepted for quite some time that corporations needed some minimal set of rights in order to take on debt and pay their bills. This does not mean, though, that anyone thought it was reasonable for corporations to be granted the larger set of rights afforded to natural persons. Except, apparently, for the supreme court justices who heard arguments in Santa Clara County v. Southern Pacific Railroad in 1886 and, of course, heads of the large corporations of the day.

In that Santa Clara case, before oral arguments occurred, then Chief Supreme Court Justice Morrison Waite remarked, "The 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 the opinion that it does." In other words, the justices construed 'person' to apply to corporations as well.

This statement was not part of the eventual opinion issued in the case, but was included in the documentation for the opinion by the court reporter. Since it wasn't part of the official opinion, it wasn't supposed to carry any precedential weight, but subsequent courts chose to cite it as precedent anyway. Voila! Ever since then, corporations have enjoyed - and exploited - many of the rights reserved more properly for actual people.

Most people, I'm sure, are familiar with the main right corporations are all too eager to exploit - free speech. A corporation's right to free speech - particularly political free speech - is THE reason why we can't keep corporate donors from influencing political campaigns with their vast sums of cash. Free speech is not the only right corporations are free to exploit however. Being protected from warrant-less searches means regulatory bodies can't just drop in unannounced to perform inspections at places of business, like say meat packing plants, or airline maintenance facilities, or pharmaceutical factories, etc. Regulatory bodies can perform their inspections, but only if they make an appointment first. This right is also used to protect companies from being forced to disclose what ingedients are used in making their (non-food) products. Ever seen an ingredient list on a bottle of sunscreen, for example? Corporations also have unfettered access to our legal system. They have the right to bring any lawsuit that any individual could bring - and there is no limit to the number of lawyers they may employ. Should an individual with limited financial means run afoul of the will of a well-funded corporation, that individual's options are quite limited. There's no such thing as a court-appointed attorney to defend one in civil cases. Corporate directors can also not be compelled to give testimony that would (or may) implicate their corporations in crimes. There are numerous resources on-line that give specific examples of corporate abuses of constitutional rights. Rather than go into that level of detail here, I'd encourage people to simply perform a search on 'corporate personhood' for more information.

So, anyway, if we ever wish to actually do something about modern corporate abuses, as opposed to just endlessly complaining about them, there is but one recourse. The people should demand an amendment to the constitution severely curtailing or eliminating corporate personhood. If you performed the on-line search mentioned above, you may have noticed there are already such proposals out there, so I won't offer any specific language here - I'm not even a legal assistant, let alone a constitutional scholar. Broadly, though, any such amendment would need to make it clear that 1) The rights granted in the constitution are meant to apply to natural persons only; 2) Corporations (or any for-profit organization) have no right to influence the political decision making process, this right being reserved exclusively for the people; 3) Corporations are subject to regulation by the people's duly elected representatives, be they federal, or local.

There are, of course, arguments in favor of corporate personhood (there's any entire industry's worth of corporate lawyers, so how could one expect otherwise?). One of the main arguments is that corporations are really just groups of people, and to deny a group of people their rights is no better than denying an individual person their rights. This seems to me to be a rather tortured argument. Denying a group of people certain rights, doesn't mean any individual in that group has been denied their rights. In fact, if we grant groups of people rights, it could be argued that people in groups have more rights than individuals - their opinions can count multiple times in terms of things like political donations. One person can, for example, make a campaign contribution as an individual, then have their company or companies make contributions to the same campaign. This strikes me as unfair to those of us who aren't on the board of directors of one or more companies. Additionally, there's no guarantee that the shareholders of a given corporation are all US citizens entitled to the rights granted under our constitution. In fact, I suspect we would be hard-pressed to find an example of a public company that wasn't at least partially, if not substantially, owned by foreign interests.

Another argument the corporate lawyers would make is that the rights corporations enjoy are what allow corporations to make their profits and drive the economy and technological progress forward. Without these rights, the ability of corporations to innovate would be hindered. To this argument I'd respond (after suppressing the urge to say or do something not usually part of a polite debate) that the people are not unreasonable. I'm sure regulation would be made in such a way that it was still possible for companies to make profits and drive the economy forward. Any argument to the contrary is nothing less than patronizing, i.e. the people don't know what's in their best interest.

There's also an argument from the left against limiting the rights of corporations - the concern that free speech and other rights of non-profit organizations like labor unions and advocacy groups would also be curtailed. To allay those concerns, I'd point out that only for-profits should be explicitly excluded from the rights laid out in the constitution. Previous precedent may still apply to non-profits. If not, again, the people are not unreasonable. The intent of any such amendment would not be to curtail individual rights, but to protect people from the abuses of the wealthy and powerful elite... and by elite I don't mean that group of college educated, latte-drinking, arugula eating working people. I mean the actual elites - the people who, by means of their practically unlimited resources, can influence policy in ways that normal people (latte-drinking, arugula eating, or otherwise) cannot. The rights of non-profit groups needs to be considered in this debate as well, and we should be careful not to throw the baby out with the bathwater. However, for the greater benefit of ending our current corpratocracy, I'd be willing to consider some reasonable limits on other types of groups as well. After all, when the wealthy wish to bypass certain rules, like say campaign finance law, they will exploit any and every loop-hole available.

It is not too late for the people to regain control of their government. This fight would not be easy by any means, but in my view, it is necessary.

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