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subverting the constitution
Corporations as Persons
The United States’ revolutionary war grew out of the monopolistic policies, supported by corrupt British crown and government, of the Earth’s first major corporation, the East India Company. So claims Thom Hartmann in his book Unequal Protection. Once overthrown, our corporations quest to return to power was resisted by Jefferson, Madison and other pro-democracy anti-federalists (Hamilton and Adams leading the Federalists). These forces see-sawed over the years of changing administrations, congress and courts, but with Reagan, Bush, Bush II. and now Trump, they have overwhelmed the barricades (not that Carter, Clinton and Obama were untainted but like democrats in general, a bit less enthusiastic servants of the 1%). So the original Tea Party was a protest of corporate unfair, monopolistic practices. Ironic that today’s “Tea Party” are actually created by and acting on behalf of the ideological descendants of that corporate point of view.
Hartmann’s book examines just how corporations came to be regarded as persons and how prior to that subversive act, corporations were considered mere legal entities subject to regulation by real persons through their representatives in government. As corporations and business interests rose in power and wealth they used their influence to populate the Congress, White House and Judiciary with as many anti-democratic officials as possible, posing of course as patriots, lovers of “freedom.” By freedom they meant, without saying so, freedom for business to avoid regulation. Not everyone went along so there were occasional openings to advance democracy. Women once arrested for attempting to vote gained suffrage. Black citizens, brutalized and oppressed, overcame the most blatant aspects of Jim Crow and children came to be protected from exploitation in the workplace – all of this only with great sacrifice and vigorous activism, marked by frequent set-backs and Trump-style, in-your-face, pushback.
The author sets out to highlight what’s at stake, what he calls the commons. In a broad sense the commons is the life system, without which life simply cannot continue. Capitalism, on the gigantic level of corporations committed to nothing but profit-making, is a threat to this biological balance. It shows up for us in trade agreements that empower panels of businessmen (!) to overrule the constitutional laws of nations whenever those countries, in the judgement of a handful of unnamed corporate officers – in secret, unappealable deliberations – decide that said laws interfere with trade. Hartmann provides examples, one where U.S. laws aimed at limiting fishing nets that, though used for other species, inadvertently kill dolphins in devastating numbers, were thrown out. Another perversion in this equation is the corporate patenting of life forms and of medicines that have been used by indigenous peoples for generations which now can be legally forced to pay the patent holders for infringing on their “intellectual property.”
An interesting statistic Hartmann provides early in the book quotes a 1998 FBI report on crime which claims street crime costs our society about $4 billion dollars that year. The Corporate Crime Reporter for that same year estimated corporate crime at somewhere between $100 and 450 billion. Quite a range but even if the low one is accurate it’s still way higher than street crime. The corrupt privatization of our prison system, where profits are enhanced by increased criminalization, leads to incarceration of our most vulnerable populations but this targeting, predictably, focuses on street criminals, and even of promoting passage of selective laws that criminalize behavior of target groups. One should keep in mind that the mainstream media is itself corporate and so these disparities are likely to be downplayed in favor of promoting fear of street crime and terrorism.
The evolution of the assault on democracy began early on, when the Jefferson/Madison faction more or less defeated the Hamilton-Marshall faction. The victory however was short-lived and probably the source of Jefferson’s thought that “Eternal vigilance is the price of liberty.” Hartmann outlines the struggle to remain vigilant and resist the anti-democratic beast, pin-pointing the Supreme Court case that established corporations as persons, the Santa Clara decision. The author cites various theories as to how this happened and puts forth his own.
This book was published prior to the Citizens United decision that strengthened the ridiculous personhood claim. A Supreme Court decision is written out by a clerk, starting with a summary. The summary is NOT law, it’s only a summary. So a clerk with blatant corporate ties inserted a phrase in the summary at odds with the actual content of the decision. That insertion then was cited in future case, by Justices and state supreme courts sympathetic to the corporate view as precedent to hand down pro-corporate decisions.
At one point Hartmann provides the disturbing data that up to that decision, corporations (primarily railroads at the time) had used the 14th Amendment 288 times seeking personhood for corporations while only 19 cases were brought in defense of the obvious purpose of the Amendment, to provide equal protection for black people. The supreme irony is that Railroads could afford to bring litigation repeatedly, hoping to eventually find a sympathetic court, whereas women and blacks were left begging, “Can I be a person too?”
The Supreme Court appointed Bush II to the presidency and Bush II. appointed Chief Justice Robertson, the Democrats allowing it, themselves being beholden to corporate campaign contributions, and all these little interrelated corruptions entangle us in the present very-hard-to-be-optimistic-about situation.
Until the Santa Clara case, most of the corporations-as-persons cases did not succeed. Hartmann offers a summary of what happened with that case: “An amendment to the Constitution which had been written by and passed in Congress, voted on and ratified by the states, and signed into law by the President, was radically altered in 1886 from the intent of its post-civil war authors.” The sympathetic court (or clerk) sought by the railroads was found and made it that much easier to further subvert the Constitution, the latest incident being Citizens United and the unfortunate, and illegitimate, appointment of Gorsuch to the court. The railroads would have been pleased. The corporations certainly are.
- Image: Inc Railroad Steaming over the Constitution is an illustration by the author, Tom Ferguson.
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