<<Morton Mintz: The Senate Should Ask John Roberts If He Thinks
Corporations Are Persons Under the 14th Amendment
Morton Mintz, at the website of Nieman Watchdog
(7-27-05):
[Morton Mintz (Nieman '64) and a Washington Post reporter for decades, is a
senior adviser to the Nieman Watchdog project.]
Judge Robert H. Bork, President Reagan's failed Supreme Court nominee,
famously denounced Roe v. Wade as "a wholly unjustified usurpation of
state legislative authority." For the moment, at least, let's assume he was
correct. Then what about the Court's pronouncement more than a century ago
that a private corporation—a paper entity that cannot wear a uniform, bleed,
vote, be sent to prison or the death chamber, and that may give tens of
millions of dollars to politicians during a possible lifespan of hundreds of
years—is a "person" that cannot be denied "the equal protection of the laws"?
Was that pronouncement also "a wholly unjustified usurpation of state
legislative authority"?
These would surely be appropriate and challenging questions for Judge John
G. Roberts, Jr., President Bush's Supreme Court nominee, when he comes before
the Senate Judiciary Committee. But don't count on any such questions being
asked. That's because Democratic and Republican committee members alike,
sensitized to corporate power, have for decades avoided putting them to any
one of hundreds of judicial nominees.
The Fourteenth Amendment to the Constitution was ratified in 1868, soon
after the end of the Civil War. It declares that 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
"person" Congress and the ratifying states had in mind—the human being in need
of equal protection, particularly in the states of the old Confederacy—was the
newly-freed slave. Nothing in either the text or the legislative history of
the Amendment suggests otherwise.
The radical change that transformed the soulless entity into a person began
in California, where, understandably, state law allowed taxation of the
property of a corporation at a higher rate than the property of a living,
breathing human. Santa Clara County taxed the property of the Southern Pacific
Railroad differently. Southern Pacific fought back, and the dispute evolved
into a case that reached the Supreme Court.
Chief Justice Morrison R. Waite and all of the Associate Justices chose not
even to hear oral argument. Instead, in 1886—a mere 18 years after
ratification of the Fourteenth Amendment—Waite simply announced: "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 any
person the equal protection of the laws, applies to these corporations. We are
all of the opinion that it does."
Here is how the stunningly different befores-and-afters were summarized by
Thom Hartmann, a Project Censored-award-winning, best-selling author, and the
host of a nationally syndicated progressive daily radio talk show, at
thomhartmann.com:
Rights and Privileges
Before 1886: Only humans were "endowed by their creator with certain
inalienable rights" and those human rights included the right to free
speech, the right to privacy, the right to silence in the face of
accusation, and the right to live free of discrimination or slavery.
After 1886: While to this day unions, churches, governments, and small
unincorporated businesses do not have "human rights" (but only privileges
humans give them), corporations alone have moved into the category with
humans as claiming rights instead of just privileges.
Politics
Before 1886: In many states, it was a felony for corporations to give
money to politicians, political parties, or try to influence elections:
"They can't vote, so what are they doing involved in politics?!"
After 1886: Corporations claimed the human right of free speech, expanded
that to mean the unlimited right to put corporate money into politics, and
have thus taken control of our major political parties and politicians. [The
Tillman Act of 1907 prohibited corporations and nationally chartered
(interstate) banks from making direct financial contributions to federal
candidates. But the law was rendered ineffectual by weak enforcement
mechanisms; indirect contributions, particularly via PACs; contributions by
corporate executives and employees, and a 1978 Supreme Court decision
invalidating—on First Amendment grounds—a Massachusetts criminal statute
forbidding banks and businesses from making certain expenditures intended to
influence the vote on referendum proposals.]
Business
Before 1886: States and local communities had laws to protect and nurture
entrepreneurs and local businesses, and to keep out companies that had been
convicted of crimes.
After 1886: Multi-state corporations claimed such laws were
"discrimination" under the 14th Amendment (passed to free the slaves) and
got such laws struck down; local communities can no longer stop a predatory
corporation.
War
Before 1886: Government, elected by and for "We, The People," made
decisions about how armies would be equipped and, based on the will of the
general populace, if and when we would go to war. Prior to WWII there were
no permanent military manufacturing companies of significant size.
After 1886: Military contractors grew to enormous size as a result of
WWII and a permanent arms industry came into being, what Dwight Eisenhower
called "the military/industrial complex." It now lobbies government to buy
its products and use them in wars around the world.
Regulation
Before 1886: Corporations had to submit to the scrutiny of the
representatives of "We, The People," our elected government.
After 1886: Corporations have claimed 4th Amendment human right to
privacy and used it to keep out OSHA, EPA, and to hide crimes.
Purpose
Before 1886: Corporations were chartered for a single purpose, had to
also serve the public good, and had fixed/limited life spans.
After 1886: Corporations lobbied states to change corporate charter laws
to eliminate "public good" provisions from charters, to allow multiple
purposes, and to exist forever.
Ownership
Before 1886: Just as human persons couldn't own other persons,
corporations couldn't own the stock of other corporations (mergers and
acquisitions were banned).
After 1886: Corporations claim the human right to economic activity free
of regulatory restraint, and the still-banned-for-humans right to own others
of their own kind.
The late Justice Hugo L. Black was scathing about the Waite court's
pronouncement. "Neither the history nor the language of the Fourteenth
Amendment justifies the belief that corporations are included within its
protection," he wrote in a dissent in Connecticut General Life Insurance Co.
v. Johnson (1938). He continued:
Certainly, when the Fourteenth Amendment was submitted for approval, the
people were not told that [they were ratifying] an amendment granting new
and revolutionary rights to corporations. The history of the Amendment
proves that the people were told that its purpose was to protect weak and
helpless human beings and were not told that it was intended to remove
corporations in any fashion from the control of state governments. The
Fourteenth Amendment followed the freedom of a race from
slavery....Corporations have neither race nor color.
The contrast between the Court's handling of Santa Clara County v. Southern
Pacific Railroad and its handling of Roe v. Wade nearly 90 years later
is stark. The Roe justices were fully briefed. They heard oral argument. They
long deliberated. In the end, they decided—among other things--that in the
first trimester of pregnancy a fetus is not a "person" within the meaning of
the Fourteenth Amendment.
For purposes of Judge Roberts's appearance before Senate Judiciary, it
doesn't matter whether either Santa Clara or Roe was rightly or wrongly
decided. What does matter is whether he will be asked not only whether Santa
Clara was "a wholly unjustified usurpation of state legislative authority,"
but additional questions such as these:
§ Can you cite anything in the original intent of the Framers of the
Fourteenth Amendment, in its language, or in its history to justify Chief
Justice Waite's proclamation that a corporation is a person owed the equal
protection of the laws?
§ Was Chief Justice Waite's proclamation radical?
§ The corporation is owned by its shareholders but is at the same time a
legal person. Is the corporation then a slave, in violation of the Thirteenth
Amendment's prohibition of slavery?
§ Corporations have freedom of speech. Do they also have freedom of
religion? Could you explain why people who call themselves conservatives
mention Santa Clara rarely if ever?
Posted on Thursday, July 28, 2005 at 12:29 PM :: http://hnn.us/roundup/entries/13446.html>>