Friday, February 20, 2004

An important thing to know

Thom Hartmann is the author of a book called Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights. I haven't read it so I make no recommendation about it (although I do find the title intriguing), but the basic premise is noteworthy.

Much of the dominance corporations have been able to achieve over the last several decades has drawn on the idea that they are "legal persons" and thus have the same rights of free speech, the same ability to make political contributions, and so on, that actual people do. Combine an equality of rights with an enormous imbalance in resources and you get what we've got.

The "legal persons" doctrine supposedly arose from Santa Clara County v. Southern Pacific Railroad, a tax case the Supreme Court decided in 1886. However, Hartmann has learned that nowhere in the actual decision did the Court rule that "corporations are persons!" The phrase actually occurs in the summary written by a court reporter of the arguments presented in the case.

What apparently happened, based on letters reproduced on Hartmann's site, is that before arguments began, the Court said it didn't want to hear about whether or not the 14th Amendment applied to "corporations such as are parties in these suits" because the Court felt that it did. Court reporter J.C. Bancroft Davis asked if that should be included in his summary of the case. In reply, Chief Justice Morrison Remick Waite said it didn't really matter one way or the other "as we avoided meeting the constitutional questions in the decision." Davis chose to include it and on that was built an entire edifice of corporate-friendly decisions.

There are two important points here: One, already made, is that the Court never actually ruled on the issue of corporate personhood, indeed, it "avoided meeting the question." And two, the Court's opinion that the 14th Amendment applies to corporations need only mean that they are entitled to due process - not that they have all the rights of human beings.

Any legal challenge based on this, of course, would be a long, long shot. Corporations are just too powerful and too much a part of our political and economic establishment for it to be otherwise at the present time. But every change started out as a long shot, and it's important for us to keep in mind the illegitimacy of "corporate personhood."

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