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I’m a Person, Too, You Know: How Corporations Stole our Identities

Believe it or not, the United States started out as a haven for the anti-corporate people of the world. Those who founded this country possessed a great distrust of corporations. So much so, in fact, that not one right was explicitly granted to corporations in the Constitution. The very word "corporation" does not appear in it, not once. It thus may seem a little incongruous that today corporations are granted nearly the same rights under this authoritative document as are individual United States citizens. But the fact is that over the past 200 plus years, the Supreme Court has interpreted the Constitution in a manner that has allowed corporations to ascend to unprecedented levels of power.

The phenomenon even has a name, and that name is "corporate personhood." And corporate personhood, friends, is why corporations are able buy elections, why they often get away with false advertising, why it’s so easy for their employees to get away with insider trading, and why it so often seems as if there is nothing at all in place to curb the actions and whims of the all-powerful corporation.

It all started, in a way, with the passing of the Fourteenth Amendment, which was intended to ensure the rights of blacks in the wake of the Civil War. The Fourteenth Amendment was not the cause, but it was the enabler. I hate quoting passages, but there is no way around quoting the Fourteenth Amendment in this case. One has to see it in order to appreciate the absurdity of what has been done with it over the ensuing 130 years:

"All persons born or naturalized in the United States, and subject to jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

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…"

It seems pretty clear that this passage is talking about people, right? Well, hold on to your hats...

Two phrases in the passage to note in the amendment are "privileges and immunities" and "equal protection." These are two key phrases that have been employed by the Supreme Court in granting corporations, well, privileges and immunities and equal protection, under the United States Constitution.

The Supreme Court took its first step toward granting corporate personhood in 1873, when it decided the Slaughterhouse Cases. The case involved a monopoly in the slaughterhouses of New Orleans. The dissents essentially stated that monopolies should be illegal because they deprived the individuals running the other slaughterhouses of their property, since business is a form of property, without due process, thus violating the Fourteenth Amendment. Fair enough. But this idea given in the Slaughterhouse dissent opened the door for future decisions in which protection would be shifted from the individual running the corporation to the corporation itself.

Thirteen years later, the Court took the dissent in the Slaughterhouse Cases to heart, and then some, when it decided in Santa Clara County v. Southern Pacific Railroad that "(t)he court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

In just 18 years, the Fourteenth Amendment had morphed from a law intended to protect blacks into a law that in reality protected corporations (the overwhelming majority of which, we all know, were and are owned and run by whites), at least to the extent that corporations now received "equal protection" under the law. With this decision, the Supreme Court essentially said that legally speaking you can’t place any restrictions on a corporation that you can’t place on an individual citizen. You can’t deprive a corporation of life, liberty, or property any easier than you can a person (whether it can possess life in the first place is another story).

From here, things only got better for the corporation and worse for the individual. In 1905, the Court actually protected the rights of a corporation over those of an individual when it ruled in Lochner v. New York that the State of New York could not limit the number of hours worked by a bakery employee, regardless of the harm involved in working in such an environment for an extended length of time, because doing so would infringe on the bakery’s right to freedom of contract. In other words, the individual was made to suffer so the company would not lose any of its rights as a "person."

The ensuing 30 or so years are generally known as the Lochner Era, a time during which the Supreme Court granted corporations continually broader protections under the Constitution. With the New Deal, the Lochner Era ended, and for a while it looked as if corporations would be subject to more stringent regulation. In the end, however, the New Deal only shifted the way in which corporations would use the Constitution to their advantage.

With the New Deal, federal regulation began to outstrip state regulation. Moreover, that regulation became macroeconomic, whereas before the Stock Market Crash it had been more microeconomic in nature (All this means is that instead of regulation being passed with one industry in mind, such as steel or the railroads, it was now passed with the intent of regulating the economy as a whole). As a result, corporations found that instead of using the Fourteenth Amendment in their defense, they could employ the Bill of Rights and thus eventually take their legal protections to unprecedented levels. While the Fourteenth Amendment proved less effective at combating the new regulations because its wording applies to state regulation and not federal regulation, the First, Fourth, and Fifth Amendments provided highly effective alternatives.

By the 1960s, corporate personhood had entered the "Modern Era." The concept of property was changing, as ideas and other intangibles came to be considered property. As a result, corporations were able to claim protection on a much wider range of issues by placing more and more ideas, documents, and communications under the heading of property. For example, in Sea v. City of Seattle, the Supreme Court determined that under the Fourth Amendment, a search warrant would be necessary in order to inspect corporate documents, since such documents qualified as intellectual "property." This means that authorities can’t look at corporate documents unless they already have probable cause that the corporation has already done something wrong. They can’t just check documents to make sure that nothing is amiss. The message to corporations is not "don’t do wrong," but "don’t look suspicious."

So, to summarize things up to this point: the Fourteenth Amendment allowed the Supreme Court to designate corporations as people. And once they possessed "personhood," corporations were able to claim Bill of Rights protection. Just as the authorities do not have the right to go through your personal belongings without a court-justified reason, they do not have the right to go through corporate documents either, because these documents are the "personal belongings" of the corporations. And these corporate documents include things that could easily tell whether said corporations are complying with the law or not— whether they are paying their taxes, whether they are running sweatshops, whether they are dealing in insider trading, any number of things, really.

It doesn’t end with the Fourth Amendment and protection against searches and seizures, of course. The First and Fifth Amendments have both been continually invoked by corporations in protecting their advertising and publicity practices. In addition, as federal regulation has in recent decades again lost ground to state regulation, corporations have again been using the Fourteenth Amendment in their defense. In short, corporations have taken the Constitution and made it their own.

It’s something that doesn’t get talked about much—perhaps because the business conglomerates are the only ones we can hear talking these days—but corporations possess nearly the exact same rights as people do in this country. On the surface, you might say that’s fine, so they have rights, entrepreneurial interests should be protected. But the problem comes in the fact that corporations possess an infinitely louder and more powerful voice, and infinitely deeper pockets, than the vast majority of individual citizens. Corporations have freedom of speech protections, which doesn’t sound so bad. But when a corporation speaks, millions hear it. Not so with the individual. And it is inherent in the nature of the corporation that money and profit are its sole interests. Corporations don’t have hearts. They don’t distinguish between right and wrong. They only distinguish between profit and deficit. Their motives are not for life, liberty, and the pursuit of happiness, but for profit. And if profit becomes the ultimate recipient of protection in this country, it seems inevitable that the rights of the individual will get lost in the balance sheet.


Sarah Stodola

Sarah Stodola is a writer living in Brooklyn and the managing editor of Me Three, an online literary journal.


The Brooklyn Rail

NOV 2003

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