Corporations Are Not Persons
by Ralph Nader and Carl J. Mayer
excerpted from the book
The Ralph Nader Reader
(Originally appeared in The New York Times, April
Our Constitutional rights were intended for real persons,
not artificial creations. The Framers certainly knew about corporations
but chose not to mention these contrived entities in the Constitution
For them, the document shielded living beings from arbitrary government
and endowed them with the right to speak, assemble and petition.
Today, however, corporations enjoy virtually the same umbrella
of constitutional protections as individuals do. They have become,
in effect, artificial persons with infinitely greater power than
humans. This constitutional equivalence must end.
Consider a few noxious developments during the last ten years.
A group of large Boston companies invoked the First Amendment
in order to spend lavishly and thus successfully defeat a referendum
that would have permitted the legislature to enact a progressive
income tax that had no direct effect on the property and business
of these companies. An Idaho electrical and plumbing corporation
cited the Fourth Amendment and deterred a health and safety investigation.
A textile supply company used Fifth Amendment protections and
barred retrial in a criminal antitrust case in Texas.
The idea that the Constitution should apply to corporations
as it applies to humans had its dubious origins in 1886. The Supreme
Court said it did "not wish to hear argument" on whether
corporations were "persons" protected by the Fourteenth
Amendment, a civil rights amendment designed to safeguard newly
emancipated blacks from unfair government treatment. It simply
decreed that corporations were persons.
Now that is judicial activism. A string of later dissents,
by Justices Hugo Black and William 0. Douglas, demonstrated that
neither the history nor the language of the Fourteenth Amendment
was meant to protect corporations. But it was too late. The genie
was out of the bottle and the corporate evolution into personhood
was under way.
It was not until the I9705 that corporations began to throw
their constitutional weight around. Recent court decisions suggest
that the future may hold even more dramatic extensions of corporate
In 1986, Dow Chemical, arguing before the Supreme Court, suggested
that the Fourth Amendment's prohibition against unreasonable searches
and seizures should prohibit the Environmental Protection Agency
from flying planes over Dow's manufacturing facilities to monitor
compliance with environmental laws. Although the Court permitted
the flights on technical grounds, it appeared to endorse Dow's
expansive view of the Constitution.
That year, corporations received the most sweeping enlargement
of their free speech rights to date. In a 5-3 decision, the Court
invalidated a California regulation ordering a public utility
monopoly to enclose in its billing envelopes a communication from
a nonprofit rate-payer advocacy group that financed the insert.
The purpose of the regulation was to assist the Public Utility
Commission in achieving its authorized goal of reasonable rates.
Even so, the Court held that the enclosures violated a new corporate
First Amendment right "not to speak." Associate Justice
William H. Rehnquist wrote in a pro-consumer dissent that to "ascribe
to such artificial entities an 'intellect' or 'mind' [for constitutional
purposes] is to confuse metaphor with reality."
Today, corporations remain unsatisfied with their ascendant
constitutional status. They want much more. At a I987 judicial
conference in Pennsylvania, lawyers counseled that corporations
use the First Amendment to invalidate a range of Federal regulations,
including Securities and Exchange Commission disclosure requirements
that govern corporate takeovers, and rules affecting stock offerings.
Businesses angry at Congressional attempts to ban cigarette
advertising-by that, we mean commercial carcinogenic speech-are
alleging First Amendment violations.
The corporate drive for constitutional parity with real humans
comes at a time when legislatures are awarding these artificial
persons superhuman privileges. Besides perpetual life, corporations
enjoy limited liability for industrial accidents such as nuclear
power disasters. They also use voluntary bankruptcy and other
disappearing acts to dodge financial obligations while remaining
The legal system is thus creating unaccountable Frankensteins
that have human powers but are nonetheless constitutionally shielded
from much actual and potential law enforcement as well as from
accountability to real persons such as workers, consumers and
Of course, individuals in these companies can always exercise
their personal constitutional rights, but the drive for corporate
rights is dangerously out of control.
Too frequently the extension of corporate constitutional rights
is a zero-sum game that diminishes the rights and powers of real
individuals. The corporate exercise of First Amendment rights
frustrates the individual's right to participate more equally
in democratic elections, to pay reasonable utility rates and to
live in a toxin-free environment. Fourth Amendment rights applied
to the corporation diminish the individual's right to live in
an unpolluted world and to enjoy privacy.
Equality of constitutional rights plus an inequality of legislated
and de facto powers leads inevitably to the supremacy of artificial
over real persons. And now the ultimate irony: Corporate entities
have the constitutional right, says the Supreme Court, to patent
living beings such as genetically engineered cattle, pigs, chickens
and, perhaps someday, humanoids.
This is not to say that corporations should have only the
legal rights emanating from state charters that create them. What
is required, however, is a constitutional presumption favoring
the individual over the corporation.
To establish this presumption, we need a constitutional amendment
that declares that corporations are not persons and that they
are only entitled to statutory protections conferred by legislatures
and through referendums. Only then will the Constitution become
the exclusive preserve of those whom the Framers sought to protect: