Challenging Corporate Personhood
Corporations, the U.S. Constitution,
An interview with Jan Edwards
Multinational Monitor magazine,
Multinational Monitor: What is corporate
Jan Edwards: It is corporations having
rights in the constitution that are normally meant for human beings.
Those rights include rights in the Bill of Rights, the Fourteenth
Amendment, and civil rights laws.
MM: How did corporations gain these rights?
Edwards: The founding fathers of the United
States were not interested in giving constitutional rights to
corporations. In fact, they wanted to regulate corporations very
tightly because they had had bad experiences with corporations
during colonial times. The crown charter corporations like the
East India Company and the Hudson Bay Company had been the rulers
of America. So when the constitution was written, corporations
were left out of the Constitution. Responsibility for corporate
chartering was given to the states. State governance was closer
to the people and would enable them to keep an eye on corporations.
In the eighteenth century, corporations
had very few of the powers that we now associate with them. They
did not have limited liability. They did not have an unlimited
life span. They were chartered for a limited period of time, say
10 or 20 years, and for a specific public purpose, such as building
a bridge. Often a charter would require that, after a certain
amount of time, the bridge or road be turned over to the state
or the town in which it was built. Corporations were viewed differently
in early America. They were required to serve the public good.
But over time people forgot that corporations
ad been so powerful and that they needed to be strongly controlled.
Also, corporations began to gain more power than the wealthy elite.
After the Civil War, Congress passed several
constitutional amendments relating to slavery. The Thirteenth
Amendment freed the slaves, the Fourteenth Amendment gave the
newly freed male slaves equal protection and due process under
law, and the Fifteenth Amendment gave voting rights to these same
former black male slaves.
The Fourteenth Amendment used the word
"person" in the body of the amendment. This caused some
confusion about who "persons" were. Did women qualify?
Or corporations? The Supreme Court responded by saying that the
word "person" in the Fourteenth Amendment meant just
That, however, wasn't the end of it. Corporations
had a lot of money and a lot at stake, and they took case after
case to court. In 1886, corporations gained a victory. Before
the Supreme Court session to announce the decision in the case
Santa Clara v. Southern Pacific Railroad, Chief Justice Waite
said that the court wouldn't hear arguments on whether the Fourteenth
Amendment clause on equal protection applied to corporations;
they all believed that it did.
The case was decided on other grounds.
But, the principle that corporations have Fourteenth Amendment
rights was inserted by the Supreme Court reporter in a header
in the published report of the case. A couple of years later,
in the case Minneapolis & St. Louis Railroad v. Beckwith (1889),
the Court cited the Santa Clara case as the precedent for corporations
having due process and equal protection under the Fourteenth Amendment.
With that, corporations became legal persons in the United States,
and gained the ability to challenge in federal court regulatory
actions at the state level.
Corporations had been looking for a way
to control the process of state regulation and taxation. Now they
were able to control it by having the federal government say you
can't discriminate, when discrimination meant any rule that applied
just to corporations, such as railroads. Of the Fourteenth Amendment
cases brought before the Supreme Court between 1890 and 1910,
19 dealt with African Americans and 288 dealt with corporations.
The corporations won more than 200 of these cases.
Federal regulatory agencies were also
being created during this time. In 1893, corporations won a case
called Nohle v. Union River Logging, which gave them Fifth Amendment
due process rights against the federal as well as state governments.
For the first 100 years or so of U.S.
history, Supreme Court decisions regarding corporations were made
under the artificial entity corporate theory. But from 1886 or
1889 on, the justices wrote their opinions in terms of personhood,
and they considered corporations to be corporate persons.
MM: How does the history of "substantive
due process" fit into the story?
Edwards: A 1905 case called Lochner v.
New York established the doctrine of substantive due process.
Lochner was about a New York state law limiting the hours that
people could work in bakeries. Lochner said that the law violated
"substantive due process" because it invalidated contracts
the bakeries had with their workers. This case involved an individual,
but the ruling was then extended to cover corporations. Lochner
became shorthand for using the constitution to invalidate government
regulation of the corporation. Until the mid-1930s, the court
used this doctrine to invalidate, or to prevent states from enacting,
economic regulations-minimum wage, maximum hours and related issues-usually
under the due process clause of the Fourteenth Amendment.
In the thirties, the Court became a little
bit more liberal and eventually overturned Lochner, shifting away
from substantive due process.
MM: What is the lingering importance of
Edwards: Corporate lawyers began to go
through the Bill of Rights and claim more and more of these rights
for corporations. The Fourth Amendment right against search and
seizure, for example, is used to keep corporations like Enron
from having to open up their books. Corporations' Fourth Amendment
protections require OSHA [the Occupational Safety and Health Administration]
to produce a warrant to check for safety regulations, which gives
employers time to clean things up. It also requires the EPA to
produce a warrant before checking for environmental infractions.
MM: What kind of First Amendment rights
do corporations have?
Edwards: They have the right to spend
unlimited amounts of money on overturning referenda, established
by the Boston v. Belotti decision in 1976. Buckley v. Valeo, in
1977, said that political contributions, including financial contributions
to candidates and parties, are equivalent to speech. This applies
to both corporations and human persons.
Corporations have the right not to speak.
This argument was used to overturn a law in Vermont requiring
the labeling of bovine growth hormone, with the courts ruling
that because the Food and Drug Administration has not required
such labels on health grounds, corporations could not be required
to label their products.
In many of the important cases establishing
corporate personhood and corporate rights, the Supreme Court has
not been unanimous. For example, Boston v. Belotti was a 5-4 decision,
with Justices White, Brennan, Marshall and Rehnquist dissenting.
Over the past 75 years, Justices Douglas, Brandeis and Black made
some insightful dissents.
MM: Nike has recently been involved in
a high-profile First Amendment case.
Edwards: In that case, a sweatshop activist
accused Nike of lying about their use of sweatshop labor in a
letter to the editor, and argued that this violated consumer protection
laws barring false advertising. Nike's lawyers said that this
was political speech, not advertising, and that in political speech,
you can say whatever you want, true or not.
The California Supreme Court decided that
this was not political speech. They did not decide that Nike did
not have political speech rights, but that Nike was speaking because
the company wanted to clear its name in order to sell more products.
This case is being appealed to the U.S.
Supreme Court, and the Supreme Court is going to decide whether
or not this particular speech of Nike is protected speech or not.
The ACLU [American Civil Liberties Union]
is saying that Nike has a right to free speech. As I understand
it, they feel that more speech is better and that they are protecting
our right to hear as well as Nike's right to speak.
MM: In what other ways does corporate
personhood affect concrete policy or government's ability to restrict
Edwards: It's like a roadblock that needs
to be removed before all sorts of other options to limit corporate
power can be pursued. The fundamental issue is: Who makes the
rules? Who governs the country? Do the corporations govern as
people, or do the people govern? Are the corporations subservient
to people or not? After corporate personhood is eliminated, we
could begin to challenge many other sources of corporate power.
We could prohibit all political activity
by corporations. We could stop all corporate political donations
and corporate lobbying. We could inspect plants for environmental
and health violations without a warrant or prior notice. We could
revoke corporate charters by popular referendum. We could prohibit
chain stores from doing business in our town, county or state,
and the erection of cell towers. We could stop advertising for
tobacco, guns and other dangerous products. We could levy differential
taxes for corporations and restrict their size. We could require
labeling for genetically modified foods.
This is just a short list of what we could
do. We could go in a lot of places where we can't go now and don't
even think to go because of constitutional restrictions. If you
redefine who is a person, if you redefine what a corporation is
in relation to We the People, then you open up a lot of avenues
now blocked by this strange concept of a corporate half person
entity that shape-shifts between public and private as suits it.
MM: What can people do about this?
Edwards: I'll tell you what our strategy
is. We believe that a constitutional amendment is needed to clarify
who is a person in the United States. All living, breathing human
beings would be included, but no non-human beings.
I know a constitutional amendment is very
difficult, but that is what we think is the proper way to change
things-in the constitution, not in the Supreme Court. At some
point, the Supreme Court might hear a case and they could overturn
corporate personhood. But we think that the question, "Should
corporations have the rights of legal persons?" is a political
question, a question for the people.
We're starting at the grassroots level.
We're encouraging people to pass resolutions in their towns to
create corporate personhood-free zones -to build up strength at
the grassroots level. Moving on from there, we hope to do a statewide
constitutional amendment, and once we get some of those we would
go for the federal amendment. That sounds like a lot of work,
but that is the proper way to do it, the democratic way.
Jan Edwards is a member of the Women's
International League for Peace and Freedom "Challenge Corporate
Power, Assert the People's Rights: Abolish Corporate Personhood"
Leadership Team. She was the co-chair of the Redwood Coast Alliance
for Democracy, which introduced the first ever successful resolution
on corporate personhood to the Point Arena, California City Council
in 2000. She also hosts a show on Mendocino Community Radio called
"Corporations and Democracy."
Control of American Democracy