NOTE: Thom Hartmann is the author of The Last Hours of Ancient Sunlight
From: http://www.CommonDreams.org/views02/1226-04.htm
Published on December 26, 2002 by CommonDreams.org
Sing, Dance, Rejoice - Corporate Personhood Is Doomed
A Review of Thom Hartmann's Unequal Protection: the Rise of Corporate
Dominance and the Theft of Human Rights
by Richard W. Behan
Unequal Protection may prove to be the most significant book in the
history
of corporate personhood, a doctrine which dates to 1886. For 116 years,
corporate personhood has been scrutinized and criticized, but never
seriously threatened. Now Thom Hartmann has discovered a fatal legal
flaw
in its origin: corporate personhood is doomed.
What is "corporate personhood?" Suppose, to keep Wal-Mart at bay,
your
county commissioners enact an ordinance prohibiting Wal-Mart from doing
business in your county. The subsequent (and immediate) lawsuit would
be a
slam-dunk for Wal-Mart's lawyers, because this corporation enjoys -
just as
you and I do as living, breathing citizens - the Constitutional rights
of
"due process" and "equal protection." Wal-Mart Stores, Inc.
is a
person,
not in fact, not in flesh, not in any tangible form, but in law.
To their everlasting glory, this is not what the Founding Fathers
intended,
as Mr. Hartmann explains in rich and engaging detail. And for 100 years
after the Constitution was ratified, various governmental entities led
corporations around on leashes, like obedient puppies, canceling
their
charters promptly if they compromised the public good in any way. The
leashes broke in 1886, the puppies got away, and the public good was
increasingly compromised - until it was finally displaced altogether.
Today, the First Amendment protects the right of
corporations-as-persons to
finance political campaigns and to employ lobbyists, who then specify
and
redeem the incurred obligations. Democracy has been transformed into a
crypto-plutocracy, and public policy is no longer crafted to serve the
American people at large. It is shaped instead to maintain, protect,
enhance or create opportunities for corporate profit.
One recent example took place after Mr. Hartmann's book was written.
Senators Patty Murray from
inserted
a last-minute provision in this year's defense
appropriation bill. It
directed the Air Force to lease, for ten years, one hundred Boeing 767
airplanes, built and configured as passenger liners, to serve as aerial
refueling tankers. Including the costs of removing
the seats and
installing
the tanks, and then reversing the process ten years from now, the
program
will cost $17 billion. The Air Force never asked for these planes, and
they
weren't in President Bush's budget for the Defense
Department.
Political
contributions from the Boeing company totaled $640,000 in the 2000
election
cycle, including $20,230 for Senator Murray and $31,100 for Senator
Stevens.
(NOTE FROM JEAN: I would not be surprised if those one hundred Boeing
767
airplanes are to be used to actually spread poisonous chemtrails
over
The chairman of the CSX Corporation, Mr. John Snow, has been nominated
by
President Bush to be the new Secretary of the Treasury. Mr. Snow's
company,
another legal person, exercised its Constitutional rights by
contributing
$5.9 million to various campaigns - three-quarters of it to Republicans
-
over seven election cycles. It was a wise investment. In 3 of the last
4
years, averaging $250 million in annual profits, CSX paid no federal
income
taxes at all. Instead, it received $164 million in tax rebates - money
paid
to the company by the Treasury Department.
No, this is not what the Founding Fathers intended democracy to be.
Thomas
Jefferson and James Madison, as Mr. Hartmann details, were seriously
anxious about "moneyed corporations" and their potential interference
in
public affairs. The Bill of Rights these two men drafted contained the
ten
Constitutional amendments that survive, and two more that did not: one
was
to control corporate expansion and dominance. (The other was to
prohibit a
standing army.)
As the 19th century wore on American corporations entered
lawsuit after
lawsuit to achieve a strategic objective: corporate personhood. With
that,
they could break the leashes of social control and regulation. They
could
sue county commissioners. Or lease their unsold airliners to the Air
Force.
Or collect millions in tax rebates.
In his spellbinding Chapter 6 - "The Deciding Moment" - Mr. Hartmann
tells
how corporate personhood was achieved.
Orthodoxy has it the Supreme Court decided in 1886, in a case called
Clara
indeed legal persons. I express that view myself, in a recent book. So
do
many others. So do many law schools. We are all wrong.
Mr. Hartmann undertook instead a conscientious search. He finally found
the
contemporary casebook, published in 1886, blew the dust away, and read
written decision of the Court did he find corporate personhood
mentioned.
Not a word. The Supreme Court did NOT establish corporate personhood in
In the casebook "headnote," however, Mr. Hartmann read this
statement:
"The
defendant Corporations are persons within the intent of the clause in
section 1 of the Fourteenth AmendmentÖwhich forbids a
State to deny to
any
person within its jurisdiction the equal protection of the laws." Here,
anyway, corporate personhood was "provided" - in the headnote,
instead
of
the formal written decision of the Supreme Court. But that's not good
enough.
What is a "headnote?" It is the summary description of a court
decision,
written into the casebook by the court reporter. It is similar to an
editor's "abstract" in a scientific journal. Because they are not
products
of the court itself, however, headnotes carry no legal weight; they can
establish no precedent in law. Corporate personhood, Mr. Hartmann
discovered, is simply and unequivocally illegitimate.
The court reporter for
Bancroft
Davis, a graduate of
Mr. Hartman has in his personal library 12 books by
original
editions. They display
industry,
and they support persuasively Mr. Hartmann's argument that
injected
the personhood statement deliberately, to achieve by deceit what
corporations had so far failed to achieve in litigation.
If
speculate about his tactics. Perhaps he thought judges in the future
would
read his headnote as if it could serve as legal precedent, and would
thereafter invoke corporate personhood in rendering court decisions.
That
would be grossly irregular, and it would place corporate personhood in
stupendous legal jeopardy if it ever came to light. But something of
that
sort must have happened, because corporate personhood over time spread
throughout the world of commerce - and politics.
Mr. Hartmann doesn't fill in this blank, but his daylighting
of the
irregularity will be the eventual undoing of corporate personhood. Its
alleged source in
Corporate
personhood simply cannot now survive, after Mr. Hartmann's book, a
rigorous
and sustained legal attack.
Sustained it will have to be, for years or decades or even longer:
corporations will fight the attack bitterly, but we now know corporate
personhood has utterly no basis in law.
Richard W. Behan's current book is Plundered Promise:
Capitalism,
Politics,
and the Fate of the Federal Lands (Island Press, 2001). For a
description
of the book, a synopsis, and further information, go to
http://www.rockisland.com/~rwbehan/
Mr. Behan is currently working on a more broadly
rendered critique,
Derelict Democracy: A Primer On the Corporate Seizure of America's
Agenda.
He can be reached by email at rwbehan@rockisland.com.
For more on Mr.
Hartmann's book, see http://unequalprotection.com