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

  1. Today (2011), I would use the word power instead of right. A legislature might want to grant a corporation the power to sue and be sued, but not the right. Rights are for people, you know, the kind that plant Scarlet Runner beans and heirloom tomatoes in their community gardens.
  2. Clarification from jam in 2011: After the courts “gave” 14th Amendment rights to corporations, state legislatures wrote that change into their corporation laws, essentially defining corporations as legal natural persons. This is standard procedure: after courts speak, legislatures “adjust” their laws. The point is, you can find, right in your own state law, AND WORK TO CHANGE, the place where it says that corporations have the rights of human beings. The Wisconsin law is at Wis. Stats.180.0103(8) and (11m); Delaware’s is in the Delaware Code, Ch. 3, Sec. 302(16).