Decommissioning Corporate “Magic”

Would you like to neutralize corporations’ ability to get so many GOOD laws declared unconstitutional? There’s an “app” for that—-an approach, that is.

Seriously, do you really think it’s unconstitutional to require labels on GMO food? Or to prohibit a dangerous and ecologically harmful activity like fracking? What kind of a screwy constitution are we talking about here?

What if the Martians (or Plutonians) landed and asked why we permitted a gigantic CAFO to produce inferior food while threatening aquifers, ecosystems, community, and quality of life? Not to mention, underselling and disadvantaging local organic food producers. Would we say, yeah, it’s a bummer but we have this sacred document called the Constitution and it says we, uh, have to allow this?

I use the word “magic” (as in corporate magic) advisedly. Magic is misdirection plus mechanics. Almost always, the misdirection (“Watch my right hand carefully, now…”) is more critical than the mechanics. (Dexterity is a matter of practice: just watch bulbous-fingered men playing mandolin or tweeting.) The same is true about how corporations get laws they don’t like voided by courts.

Obviously, in order to counter magic you have to understand it.

First, the Mechanics

Over many decades, corporate lawyers convinced judges that corporations are protected by the Constitution against government action. (A portion, but not all, of these protections comes via so-called “corporate personhood.”) After a high court confirmed these judicial interpretations, legislatures incorporated the changes into law. (This is still going on today, but the groundwork was laid long ago.)

Result: The Constitution both created a government, and set up provisions to protect people from oppressive government. Then the government (state governments, mostly) created corporations as its agents. These corporate agents, really extensions of government, then began claiming that they were more like human persons than creatures of the state, and therefore deserved protection against the government that created them. (If you feel dizzy, you’re getting it. The topology of the situation is a snake shaped like a Mobius strip eating its tail.)

In a nutshell: A corporation (set up by a government professing to act on behalf of the people) claims the protections of people against government, and wields the power of government against people. This is having your cake and eating it too.

Once even a single corporation wins recognition of an expanded constitutional protection, that protection then extends to ALL corporations. They don’t even have to send each other memos.

Quickie example: A county believes a certain business corporation (BadCorp) is reprehensible in its methods, labor policies, and general environmental practices, so it passes a law banning that corporation from doing business within its jurisdiction. (For an example, read up on the anti-chain store laws of the early 20th century. Check page 61 of my book.) BadCorp files a lawsuit claiming that its 14th Amendment constitutional right to equal protection is violated, because other similar corporations are not banned, while BadCorp is singled out. In other words, BadCorp was discriminated against. (I kid you not, this is the language used.) After that (and this started in the late 19th century), all the other corporations went whining to federal courts to claim that they were discriminated against, too. As a result, this and other corporate constitutional protections accreted over the years have made it next to impossible to pass legislation with real effect to control corporations.

That’s the mechanics part. I’ve been writing about it for two decades, and there’s a solid century-and-a-half of legal scholarship on it. But regular people don’t read that, either because it sounds too intimidating or boring, or because…corporate misdirection has deflected their attention.

Now, At Stage Right, the Misdirection

You can almost smell the incense. Mental lights dim, somber susurrus caress the syllables…Con-sti-tuuuu-tion…as we enter the Sacred Text Zone. Imagine that urine-colored parchment with the nearly unreadable loopy script on it. Probably behind glass. With a security guard nearby. Most people are not exactly sure what all’s in it, but they are hesitant to violate it.

Instead of “Keep your eye on my right hand…” the misdirection here begins with people in dark, voluminous robes intoning the word “unconstitutional.” The first misdirection is that even the suggestion that something is unconstitutional makes many people back off (and stop looking into it).

It gets worse, because the misdirection implies that the Constitution itself actually says that corporations have rights (mostly from the Bill of Rights), and protections from other clauses scattered throughout the document. IT DOESNT. Just read it. (Or some of my short vignettes illustrating the point).

The notion that corporations have constitutional protections comes not from the Constitution but from judicial decisions made since the early 19th century. The judges that made these decisions, almost without exception, were wealthy white men with considerable property. Most also had experience working for the railroads, banks, and other dominant corporations of their day.(See pages 76-77 in my book.)

Misdirection Plus Mechanics Equals…

While misdirection makes people afraid to question the Constitution, and unaware that such protections come not from the Constitution but from increasingly free-ranging judicial interpretations (often called judge-made law), activists and other citizens tend to disattend the mechanics of constitutional protections for the legal fiction of the corporation. Which are right out there, in black and white, as plain as that rabbit in the hat.

Here’s the App!
Decommissioning Corporate Magic: The App(roach)

Remove, by passing laws, the handful of corporate protections that corporations have used to neutralize literally tens of thousands of excellent pieces of legislation.

Before your eyes glaze over, consider this. Look up from your screen. People who can install and use numerous apps on complex electronic devices that blink, beep, thump, vibrate and arpeggio at us from all compass directions—are without doubt capable of understanding the points of constitutional law (there, I said it) that keep corporations for the most part out of reach of citizen legislation.

Hundreds of local communities have tried it already, and are making real progress. Visit one or two, to see how that app(roach) works.

Corporate “Personhood” Must Be Challenged (2009)

by Jane Anne Morris

When the “Hillary Clinton film” case is decided, headlines should declare, “Supreme Court affirms corporate personhood.” Instead, most media will call it a free speech decision. “First Amendment rights” will play the Trojan horse hauling corporate freight.

By first putting human beings and corporations into one basket labeled “things that have constitutional rights,” and then arguing about what “free speech” means, the Supreme Court has pitted the likes of the American Civil Liberties Union against advocates of campaign finance reform.

In one corner, arguing against limits on “speech,” we find Citizens United Inc. (the right-wing, nonprofit corporation that produced the Hillary film), supported by the ACLU. In the opposite corner, arguing FOR limits on “speech,” the Federal Election Commission and an assortment of groups supporting campaign finance laws.

Must we limit speech in order to have free and fair elections? Or must we accept corporation-dominated political debate in order to preserve free speech?

This false dilemma disappears if we reject corporate personhood – the idea that corporations have constitutional rights. Limiting corporate “speech” is not a constitutional infringement if corporations are not “persons” under the Constitution.

Corporate personhood encourages people to forget that every corporation is literally created by legislatures. Corporations of all kinds receive grants of power and privilege from the state; that’s why they incorporate. In the Citizens United Inc. case, the Clements amicus brief (on the FEC side) asks, “If the people’s elected representatives create legal structures for economic, charitable or other purposes, are they barred from preventing misuse of those structures for non-permitted purposes, such as political activity?”

Admitting the legal fiction of the corporation into the “rights” club has further consequences. With human beings and corporations joined at the hip in the body of constitutional law, the fruit of each people’s victory in strengthening or claiming a constitutional right is plucked up by corporate lawyers and used to defend corporations against the governments that created them.

That has been happening since the late 19th century, when the Supreme Court awarded the granddaddy of all corporate constitutional rights (equal protection and due process under the 14th Amendment) to railroad corporations.

In a famous Supreme Court dissent (1938), Justice Hugo Black ridiculed the justices’ grant of corporate personhood, and recounted the real function of the 14th Amendment during the first half-century after its adoption. Hint: It had little to do with protecting the rights of African-Americans, women or Native Americans.

Among Supreme Court cases about the 1868 amendment, Black wrote, “Less than one-half of 1 percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” With corporations on the personhood wagon, rights that we think are protecting human beings are instead protecting corporations against the government.

In the current case, the biggest hope for some and fear for others is that the court will overrule Austin v. Michigan Chamber of Commerce, a 1990 case that preserved a scrap of state power to regulate corporate “political speech.” The widely touted “victory” was that the Supreme Court allowed Michigan to prohibit one kind of nonprofit corporation from using its monies for certain kinds of political speech.

Meanwhile, the Austin case accepts that money equals speech (following the Supreme Court’s 1976 Valeo decision), that corporations can spend treasury funds on initiatives and referendums, and that political action committees are legal and constitutional. But there’s more. Austin affirms that corporations are “persons” with constitutional rights, and that they have First Amendment rights, and equal protection rights.

Despite the hype and flutter around it, Citizens United Inc. v. FEC is not the big showdown about campaign finance reform. Whether the Supreme Court upholds the FEC and the Michigan law, or favors Citizens United Inc. and overrules Austin, corporate personhood will have won again.

Just as the single-payer option has been suppressed in the national health care debate, corporate personhood is all but ignored in discussions of campaign finance reform. Perhaps if “corporate personhood” made it into more headlines, we could shoo it out of the Trojan horse where it has obfuscated free speech and equal rights issues for too long.

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Corporate anthropologist and Madison resident Jane Anne Morris’ recent book, “Gaveling Down the Rabble: How ‘Free Trade’ Is Stealing Our Democracy” (Apex Press, 2008) is cited in an amicus brief filed in support of the Federal Election Commission in this case.

Originally published in the (Madison) Capital Times, Oct. 9, 2014.

(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)

by Jane Anne Morris

Before running off trying to counter the recent Supreme Court decision in Citizens United v. Federal Election Commission (FEC), we ought to sort out what this decision does and does not do.

The Citizens United decision does make our democracy theme park a little worse, the way having an atomic bomb dropped on your own house would be slightly worse than having it dropped on your neighbor’s. But despite dire claims that the decision is the nail in the coffin of our democracy, that it will shake the current election system to its core, and so on, the case changes very little of our current situation.
Continue reading “(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)”

Strip Corporations of their Cloaking Devices (1996)

By Jane Anne Morris

 

Who spends the most time in federal courts complaining that their “due process” and “equal protection under the law” rights have been violated? Pushy women? Uppity Blacks? Gray Panthers? Illegal Mexicans? The Sandhill Crane Militia? HIV-positive Navy gunners? You really don’t know, do you?

None of the above.

Plaintiffs in such cases are most often large corporations.

That’s because before women gained the right to vote, long before Blacks could eat lunch at a drugstore counter, corporations were granted the rights of “natural persons” under the Fourteenth Amendment.

The Fourteenth Amendment (1868) to the U.S. Constitution reads in part,

[No state shall] 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.

The Fourteenth Amendment was passed in 1868 to guarantee to Blacks, especially former slaves — the full protection of the U.S. Constitution and Bill of Rights.

Thanks to an 1886 Supreme Court decision (Santa Clara) since questioned but not yet struck down, corporations are now able to use the Fourteenth Amendment to fight against the government that created them and the people who try to control them.

Corporation lawyers wrapped the fictive corporations they represented in the mantle of personhood and then made their pilgrimage to the highest court in the land. There in 1886 the Supreme Court sanctified the corporate cloaking device that would enable them to elude and evade the will of the people who created them.

What does “personhood” do for corporations?

  1. It gives them grounds to question in court any government action.
  2. Along with other legal doctrines, it makes it easier for them to gain a forum in federal courts and thereby escape the state courts, which are usually more reflective of the will of the sovereign people.
  3. It expands the power of appointed-for-life federal judges to essentially make law.

Think of it this way: Before 1886, people tried to DEFINE corporations to serve the public interest. This is appropriate for entities that were created for just that purpose. But after 1886, corporations had the rights of constitutional persons, and so the government was reduced to trying futilely to REGULATE them instead.

One constitutional scholar described the effect of the Fourteenth Amendment in this way:

A constitutional doctrine contrived to protect the natural rights of men (sic) against corporate monopoly was little by little commuted into a formula for safeguarding the domain of business against the regulatory power of the state. (Walter H. Hamilton, 1938)

As countless court cases have affirmed, the purpose of corporations is to serve the public interest. Corporations are created by the sovereign people acting through state legislatures. As legal fictions existing to serve the people, they have no rights or even existence outside of the people’s will.

This is not the same thing as saying that corporations should have no rights of any kind. The people, acting through legislatures, may decide that corporations of a certain kind should have the right to sue and be sued; or, the right to be treated similarly to other corporations in the same class. The people may declare that corporations and their officers are subject to criminal prosecution. They may decide that small, local, independent businesses should have rights not extended to huge multinational chains.1

But such rights, if appropriate, should be granted singly and consciously, and not as part of a vague judge-made package deal that starts out by giving corporations the rights of “natural persons.”

No referendum was ever held on whether corporations should have the natural rights of human persons. No legislature ever passed a bill giving corporations such rights.2

We agree with Justice William O. Douglas, who stated in a famous 1948 Supreme Court dissent:

If they [the people] want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation. (Wheeling Steel Corp. v. Glander, 337 U.S. 562)

At Democracy Unlimited we concur with Justice Douglas when he said, “I can only conclude that the Santa Clara case was wrong and should be overruled.”

Why wait around?

Democracy Unlimited is circulating a petition in support of a Wisconsin constitutional amendment that states that in Wisconsin, corporations are not persons with the constitutional rights of persons.

If such an amendment were passed, it would immediately be challenged and could even reach the U.S. Supreme Court. It will not be the first time that our fair state places itself at the forefront to insure that government of the people and by the people does not perish from this earth.

Let’s remove this obscene cloaking device that gives corporations more rights than you.

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“Strip Corporations of Their Cloaking Device” was first published in the Democracy Unlimited News Dispatch in Wisconsin, fall of 1996. It has also been reprinted in Defying Corporations, Defining Democracy.

Notes

Stone Soup, Democracy Salad, Just Desserts (1997)

By Jane Anne Morris
 

John Colepeper
What would JC do?
Centuries ago, Sir John Colepepper said of the “corporations” of his day,

Like the frogs of Egypt, they have gotten possession of our dwellings and we have scarcely a room free from them; they sip in our cup; they dip in our dish; [and] they sit by our fire.

Today, as corporations slobber in our cups, they also get into our minds, so much so that the very mention of “Participatory Democracy” sends people fleeing.

What gives “democracy” such a bad name? Everything about the way we practice it in the USA today. What we experience every day as “democracy” bores us to tears, leaves us frustrated, and gets us nowhere.

We know from experience that our “democracy” is a fake: we get to go through the motions of voting, testifying, writing letters, picketing, but most decisions have already been made before we even raise our voices. And if we do get a tiny concession, it will be temporary, just enough to pacify us until our government officials can go back to carrying water for their corporate masters.

One might argue: if our current “democracy theme park” is a boring, frustrating waste of time, then the Real Thing — Participatory Democracy — must be even worse.

Just think of it: day-long meetings, institutional coffee, plastic molded chairs in a stuffy conference room. Sounds like something we would want to really struggle for, eh?

Imagine the bumper sticker slogans: “Participatory Democracy: Almost as Good as Warmed-Over Spit!” Or, “Participatory Democracy: It’s Boring and Tedious But It’s Good For You!”

Not so fast. What we have here is a half-baked idea. Judging democracy by our current political process is like evaluating Mexican food by what you get at Tacko Bell.

“Theme Park Democracy” is boring, frustrating and tedious because it’s neither democratic nor participatory.

And this suits corporations just fine, because over the last century and a half they have moved in to occupy the places that people are supposed to have in the democratic process. (They sit by our fire.) Corporate “persons” now exercise many of the constitutional rights guaranteed to human persons. And this invasion of the “personhood” snatchers is a huge part of the reason why our current political system is undemocratic to the core.

But even when its very personhood is threatened, ours is an irrepressible species. There’s always someone who remembers how to make Stone Soup.

A woman goes to the middle of an impoverished village, where many are near-starving, and sets a huge pot of water to boil. She throws in a stone, and tells the hungry villagers that she’ll make them a hearty meal of stone soup, if only they’ll chip in. A few hesitant villagers toss in table scraps, bits of greens, an onion or a potato here and there. Soon the villagers are bringing in handfuls of grain, vegetables overlooked in their gardens, sprigs of herbs from their barren pantries, forgotten roots from corners of their cellars. And, you guessed it, the stone soup is a culinary success. And the making and eating of it is spontaneous community-wide democratic performance art.

Our version of Stone Soup is the pot luck dinner.

We invite a salad of people. Friends, family, visitors, and various hangers-on — all are welcome. The only “persons” left out are corporate “persons” — who would ever invite a corporation to a pot luck? (They dip in our dish).

We invite people, sovereign people. Hungry sovereign people.

We share and share alike. Everyone brings what they can. Artful chefs who sing to their vegetables bring the fruits of their art. But the exertions of the choppers, the graters, the knife-sharpeners, the pickers of fruit, the tossers of salads, the cleaner-uppers, are appreciated as well. There is room for everyone at this Inn.

We eat what we need. Individual actions are leavened by the gentle sifting of circumstance. People don’t load their plates with choice morsels before everyone has had a chance at them. The pot luck is egalitarian, with special consideration gladly given to the very young, the very old, and all others with particular needs.

And as we eat we breathe air permeated by the signs and sounds of friends, family and community. We are reminded that food is a gift of the earth, shaped by human hands, molded by longstanding cultural preferences. We are linked to sun and moon and stars by the rhythmic ripenings they dictate and reflect. Berries in their season, root vegetables in theirs. The time of the greens, of the wild rice, of the maize and the squash.

The meal is more than the sum of its parts, as is the community. The sharing of food, that link between the land and the stomach, between nature and culture, renews, reaffirms, and renegotiates social and economic relationships through participation. That’s why a famous religious figure had a Last Supper, not a Last Staff Meeting, and that is why it is remembered.

From each according to ability, time and skill. To each according to need. A redistributive celebration that balances differences without obliterating them, and absorbs and transforms want and plenty. There is no accumulation of wealth beyond stomach contents. Those who stay to clean up distribute any leftovers.

Whole cultures have run on the Pot Luck Principle, sustainably, for milenia, until certain invaders came and insisted that Society should submit to Economy, instead of the reverse. If we are to wrestle Economy back into its proper position as subordinate to Society, we’re going to have to remember the lessons of Stone Soup and its kin Pot Luck.

Now, what if you used a pot luck — this egalitarian, community-based gathering that fulfills a biological need in a social way, — what if you used this gathering as an opportunity to make social decisions about your community?

Hearing from everyone in-between mouthfuls (or platefuls, as the case may be.) Sharing ideas and opinions as they share beans and greens.

What if you used this gathering, this crossing of paths, this breaking of bread together — as an occasion to make economic decisions as well as social ones?

If you did that, we’d call it the monthly Madison Hours Pot Luck.

We’d call it a lot of fun.

We’d call it participatory democracy.

I’ll drink to that.