Corporate Personhood

The Fourteenth Amendment to the Constitution was ratified in 1868 and Section 1 of that amendment begins this way:

“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.” (bold and italics mine – JA)

Those are the “due process” and the “equal protection” clauses of the Constitution. Look at the date of the amendment and consider what the amendment says and you’ll be quite clear about its intent: This was entirely about protecting and advancing the condition of former slaves. In the wake of the Civil War many southerners did whatever they could to retain their former advantage, this to the extreme disadvantage of former slaves, now free in name only, so this amendment was both clear and necessary.

Eighteen years later a lawsuit appeared on the docket of the Supreme Court. Santa Clara County v. Southern Pacific Railroad was a tax jurisdiction case that tested the provisions of then-new California laws against those of the federal government. The case was decided in favor of the railroad and, oddly, that turned out to be the least important thing associated with this lawsuit.

The court reporter for the Supreme Court was Mr. J. C. Bancroft Davis. He, like other court reporters of his day, was far more than a stenographer for the cases presented before the court. Back then the job of court reporter was a most prestigious position and Mr. J.C. Bancroft Davis was actually paid more money than Chief Justice Morrison Remick Waite.

Recordings of the proceedings were made with up to-the-moment technology, ink pen and paper, and Mr. J.C. Bancroft Davis had the good fortune to be allowed to publish his recordings of the proceedings and collect royalties for his efforts. Along with his best efforts to record the case by hand, he was allowed to publish what were called “headnotes”. These are comments of the court reporter and were not part of the court’s opinions or rulings, nor intended by the court as legal precedent. Indeed, headnotes were not even from the court proceedings, but were solely the comments of the court reporter.

Here is what Mr. J.C. Bancroft Davis wrote in his headnotes to the publication of the proceedings of the Santa Clara County v. Southern Pacific Railroad case:

“The defendant corporations are persons within the intent of the clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States . . . “

Corporate “personhood” was not tested before the court in this case; remember that this was a simple tax jurisdiction issue. That makes what followed Mr. J.C. Bancroft Davis’ writings the strangest part of this case: Davis’ headnotes, his editorial opinion, has been cited as precedent for all of the efforts to give corporations the same rights as flesh and blood human beings ever since.

That’s right: A constitutional amendment that was designed to protect former slaves was and is being used to give artificial personhood to inanimate corporations. It is what is allowing billions of corporate dollars to influence our elections and bend legislation and regulation to the desires of those same corporations. It is what drives huge cash contributions to political candidates and influences voting in Congress.

Right now 91% of Americans want universal background checks and registration for all gun sales. Legislation to accomplish that is clumsily being cobbled together in Congress but getting our corporately influenced legislators to do the will of the people is proving to be really difficult. And to reemphasize the insanity causing that, the engine driving congressional intransigence is based not on the decision of a court, but on an editorial opinion of one court reporter

That strange and damaging precedent was set one hundred forty five years ago and we are still feeling its effect, perhaps now more than ever. Likewise, the decisions we make today will be felt by our descendents one hundred forty five years from now. That is to say, just as sure as the flow of impact from Mr. J.C. Bancroft Davis’ headnotes to us, there will be an impact of what we do today on our great-great-great-grandchildren when they are adults just like you.

You can be passive and do nothing; that is your right as an American. After all, you have the right to vote, but not the legal obligation. You have the right to appeal to your elected officials to act as you prefer, but that is not a requirement of citizenship, either.

On the other hand, you might want to close your eyes and envision the America you want for your children, your grandchildren and, if you can see that far, for your great-grandchildren. Likely, if you do nothing, that’s not what they’ll inherit. Indeed, unless you speak up, the vision of people who want a very different America from the one you want will be the America of tomorrow, because those people will be the only ones talking.

Perhaps you really do have something to say to your legislators. Go ahead. Tell them. Now.

There was a small article in the September 25, 2011 edition of the New York Times reporting on demonstrations that are continuing around Wall Street. The piece was in a corner of page 18 and was short and bland. The protest was happening in Manhattan and arguably was a major event in the home city to The New York Times, yet the newspaper barely mentioned it and this apparently self-inflicted self-blinding was happening throughout our national media, as mention of the demonstrations was rare. That is in stark contrast to how extensive the coverage might have been had this been a Tea Party demonstration, given our national obsession with the radical right, and this vacuum of attention is significant.

The Citizens United v. FEC case, decided last year by a radical Supreme Court, has effectively made American politics exponentially more beholden to corporate influence, since we are now informed that corporations are people and have the same rights as those of us made of flesh and blood, especially the right to contribute boxcars of money to political campaigns. Of course, only corporations have the means to fill those boxcars, so America is now one giant step closer to becoming a de facto corporatocracy instead of a democracy and that is ominous, indeed, for actual human beings.

W. Edwards Deming taught quality in manufacturing to the Japanese after WW II (after American titans of industry ignored him) and, to offer just one example of the result, the Toyota Camry has been the most popular sedan in America for decades. One of Deming’s most important lessons is that when there is a problem, we should look first not to the individuals involved, but to the system that drives individual behavior. That is precisely where we should look to remedy our political paralysis and the obsessive quest for dumb in Washington.

Our political campaigns are hideously expensive, so much so that our politicians and would-be politicians have to spend about half their time both during campaigns and while in office just raising money, which means that they are set up to be at the mercy of the donors of big bucks. No matter if every legislator inside the Beltway is an Eagle Scout or its equivalent, they cannot afford to stop searching for their mother lode of cash if they are to achieve office and stay there. That is simply how our system functions.

The most significant reason for our hideously expensive political campaigns is the cost of advertising on television, with cable companies and other major news and entertainment media outlets. They, of course, are corporations and serve their own interests. Should we do anything to curtail political spending with them, those media outlets would be financially harmed, so it’s not in their interests to change the system. Perhaps that’s why you’ve seen so little coverage of those Wall Street protests to do exactly that – change the system.

To state the obvious, corporations have more money than individual citizens. That results in the voices of the corporations being far louder than all the rest of us can shout. Some of the loudest voices come from Wall Street. That’s why those thousands of people are on the streets of so many cities all around this country, “occupying Wall Street.”

If we are to have a democracy in America we cannot have corporatocracy – the two are mutually exclusive. And if we don’t change the system, the future is both certain and very dark for Americans.

There are people who are going about finding ways to change the system and ensure our democracy and you can find an excellent review at this web site, and also at www.MoveToAmend.org.

You can also sign Dylan Ratigan’s petition to change campaign funding at:

Just understand that your choice is to live in a participatory democracy or to be a serf to the corporations. The good news is that you still get to choose. The bad news is that the clock is ticking.

JaxPolitix

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