The Santa Clara Blues:
Corporate Personhood versus Democracy
by William Meyers
What Corporate Personhood Is
Corporate Personhood is a legal fiction. The choice of the word
"person" arises from the way the 14th Amendment to the
U.S. Constitution was worded and from earlier legal usage of the
word person. A corporation is an artificial entity, created by the
granting of a charter by a government that grants such charters.
Corporation in this essay will be confined to businesses run for
profit that have been granted corporate charters by the States of the
United States. The Federal Government of the
United States usually does not grant corporate charters to
businesses (exceptions include the Post Office and Amtrak).
Corporations are artificial entities owned by stockholders, who may
be humans or other corporations. They are required by law to have
officers and a board of directors (in small corporations these may
all be the same people). In effect the corporation is a
collective of individuals with a special legal status and privileges not
given to ordinary unincorporated businesses or groups of individuals.
Obviously a corporation is itself no more a person (though it is
owned and staffed by persons) than a locomotive or a mob. So
why, in the USA, is a corporation considered to be a person under
In the United States of America all natural persons (actual
human beings) are recognized as having inalienable rights. These
rights are recognized, among other places, in the
Bill of Rights and the 14th Amendment.
Corporate personhood is the idea (legal fiction, currently with force
of law) that corporations have inalienable rights (sometimes called
constitutional rights) just like real, natural, human persons.
That this idea has the force of law both resulted from the power and
wealth of the class of people who owned corporations, and resulted in
their even greater power and wealth. Corporate constitutional
rights effectively invert the relationship between the government and
the corporations. Recognized as persons, corporations lose
much of their status as subjects of the government. Although
artificial creations of their owners and the governments, as
legal persons they have a degree of immunity to government
supervision. Endowed with the court-recognized right to influence
both elections and the law-making process, corporations now dominate not
just the U.S. economy, but the government itself.
The History of Corporate Personhood
Corporations were detested by the colonial rebels in 1776 when
the Declaration of Independence severed the States from
Great Britain. There had been only a few corporations in
colonial America, but they had been very powerful. The Dutch
West India Company had founded New York. Corporations
had effectively governed Virginia, Maryland and the Carolinas.
The political history of the colonies up until 1776 was
largely one of conflict between citizens trying to establish rule by
elected government and the corporations or King ruling through
The new nation or confederation of 13 sovereign states had
few native business corporations. The corporations that
survived the revolution were mainly non-profit institutions such as
colleges [Dartmouth College v. Woodward,
17 U.S. 518 (1819)]. There was not a single bank in the
United States until 1780. Most of that first
bank's stock was owned by the confederate (what we would
later call "Federal") government, and the
bank's charter was revoked in 1785.
"The agrarian charges were numerous...
the bank was a monstrosity, an artificial creature endowed
with powers not possessed by human beings and incompatible with the
principles of a democratic social order." [Hammond, Bray,
Banks and Politics in America from
the Revolution to the Civil War (Princeton: Princeton
University Press, 1991), pp. 48-54] By 1790
four banks had been granted corporate charters by states,
but these banks were not originally purely private institutions.
They served as financial institutions for the states that
chartered them. [Ibid. 65-67]
The federal Constitution of 1788 did not mention corporations at
all. But in the late 1700's and early 1800's
corporations began to be chartered by the states.
This was not without opposition. Thomas Jefferson
said, "I hope we shall crush in its birth the aristocracy of
our moneyed corporations which dare already to challenge our government
in a trial of strength, and bid defiance to the laws of
Like the banks, other early corporations were closely supervised by
the state legislatures that granted their charters. When the
Supreme Court of the United States in Dartmouth College v. Woodward
in 1819, ruled that Dartmouth's charter granted in 1769
by King George III was a contract and could not be revoked by
the New Hampshire legislature, a public outcry ensued.
State courts and legislatures, supported by the people,
declared that state governments had an absolute right to amend or
repeal a corporate charter. [Richard L Grossman and
Frank T. Adams, Taking Care of Business,
Citizenship and the Charter of Incorporation
(Cambridge: Charter, Ink., 1993), p. 11-12]
Until 1886 corporations were not considered persons. It was
clear what they were: artificial creations of their owners and the
state legislatures. They were regulated and taxed.
They could sue and be sued. They were subject to
all of the laws of the land as well as any restrictions placed in
their charters. But from 1819 until 1886 the
wealthiest business people sought to use the Federal Government,
particularly the courts, to get their corporations out from under the
control of the states and their citizens.
During the 1800's the United States went through an enormous
economic expansion, sometimes called the Industrial Revolution, but
that term is misleading. The United States expanded
geographically by grabbing native American Indian territories
formerly claimed by France, Great Britain, and Mexico.
The population exploded. Farm production exploded,
and international trade exploded, with U.S. grain feeding both
growing U.S. cities and Europe. Manufacturing in
the U.S., protected by tariffs from British competition, also
progressed rapidly. The favored form for large businesses became
the corporation. And as these corporations came to dominate
business life, they also began to dominate America's politicians,
lawyers, courts and culture.
The Civil War accelerated the growth of manufacturing and the power
of the men who owned the corporations. After the war, corporations
began a campaign to throw off the legal shackles that had held them
in check. The systematic bribing of Congress was
instituted by Mark Hanna, sugar trust magnate Henry Havemeyer,
and Senator Nelson Aldrich and their associates.
[Jonathan Shepard Fast and Luzviminda Bartolome Francisco,
Conspiracy For Empire, Big Business, Corruption and
the Politics of Imperialism in America, 1876-1907 (Quezon City,
Foundation for Nationalist Studies, 1985), p. 92-97] Most
Supreme Court judges who were appointed were former
In 1886 the supreme court justices were
Samuel F. Miller, Stephen J. Field,
Joseph P. Bradley, John M. Harlan,
Stanley Matthews, William B. Woods, Samuel Blatchford,
Horace Gray, and chief justice Morrison R. Waite.
Never heard of a one of them? These men subjected
African Americans to a century of Jim Crow discrimination;
they made corporations into a vehicle for the wealthy elite to control
the economy and the government; they vastly increased the power of the
Supreme Court itself over elected government officials. How
quaint they are forgotten names. In all fairness,
Justice Harlan dissented from the infamous Plessy v. Ferguson
decision [163 U.S. 537 (1896)], which, as he said,
effectively denied the protection of the 14th Amendment to the very
group of people (former slaves and their descendants) for whom
it was designed.
In 1868 the 14th Amendment to the United States
Constitution had become law. Section 1 of that Amendment
SECTION 1. All persons born or naturalized in
the United States, and subject to the 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.
"The one pervading purpose . . .
[of the 14th Amendment] was the freedom of the
slave race, the security and firm establishment of that freedom,
and the protection of the newly-made freeman and citizen from the
oppression of those who had formerly exercised unlimited dominion over
him." That is exactly what
Justice Samuel F. Miller said in 1873 in one of the
first Supreme Court opinions to rule on the 14th Amendment.
[83 U.S. 36, 81 (1873)]
But the wealthy, powerful men who owned corporations wanted more power
for their corporations. Their lawyers came up with the idea that
corporations, which might be said to be groups of persons (though one
person might in turn belong to (own stock in)
many corporations), should have the same constitutional rights
as persons themselves. If they could get the courts to agree that
corporations were persons, they could assert that the States, which
had chartered the corporations, would then be constrained by the
14th Amendment from exercising power over the corporations.
Beginning in the 1870's corporate lawyers began asserting that
corporations were persons with many of the rights of natural persons.
It should be understood that the term
"artificial person" was already in long use, with no
mistake that corporations were claiming to have the rights of
natural persons. "Artificial person" was used
because there were certain resemblances, in law, between a
natural person and corporations. Both could be
parties in a lawsuit; both could be taxed; both could be
constrained by law. In fact the corporations had been
called artificial persons by courts in England as early as the
16th century because lawyers for the corporations had asserted they
could not be convicted under the English laws of the time because
the laws were worded "No person shall..."
The need to be freed from legislative and judicial constraints,
combined with the use of the word "person" in the
U.S. Constitution and the concept of the
"artificial person," led to the argument that these
"artificial persons" were "persons" with
an inconsequential "artificial" adjective appended. If
it could be made so, if the courts would accept that corporations were
among the "persons" talked about by
the U.S. Constitution, then the corporations would gain
considerably more leverage against legal restraint.
These arguments were made by corporate lawyers at the
State level, in court after court, and many judges, being
former corporate attorneys and usually at least moderately wealthy
themselves, were sympathetic to any argument that would strengthen
corporations. There was a national campaign to get the legal
establishment to accept that corporations were persons.
This cumulated in the Santa Clara decision of 1886,
which has been used as the precedent for all rulings about
corporate personhood since then.
Though it is not yet clear who hatched this plan or where the
campaign began, the early cases mainly concerned railroads. In the
late 1800's railroads were the most powerful corporations in the
country. Most of the nation's farmers were dependent on them
to haul their produce; even the manufacturing corporations were at their
mercy when they needed coal, iron ore, finished iron, or any
other materials transported. That the lawyers for the
railway corporations had planned a national campaign to make
corporations full, unqualified legal persons is demonstrated
by the Supreme Court making several decisions in which this was an
issue in 1877. In four cases that reached the
Supreme Court [94 U.S. 155, 94 U.S. 164,
94 U.S. 179, 94 U.S. 180 (1877)] it was
argued by the railroads that they were protected by the
14th Amendment from states regulating the maximum rates they
could charge. In each case the Court did not render
an opinion as to whether corporations were persons covered by the
14th Amendment. Bypassing that issue, they said that the
14th Amendment was not meant to prevent states from regulating
Similarly, in 1877, in Munn v. Illinois
[94 U.S. 113 (1876)], the Supreme Court decided that
the 14th Amendment did not prevent the State of Illinois
from regulating charges for use of a business's grain elevators,
ignoring the question of whether Munn & Scott was
a person. Later, in Northwestern Nat Life
Ins. Co. v. Riggs
[203 U.S. 243 (1906)], having accepted that corporations
are people, the court still ruled that the 14th Amendment was
not a bar to many state laws that effectively limited a
corporations right to contract business as it pleases.
Calling silence a victory, from 1877 to 1886
corporate lawyers assumed that corporations were persons, and their
opponents argued that they were not. In Santa Clara
County v. Southern Pacific Railroad Company
[118 U.S. 394 (1886)], at the lower court levels the
question of whether corporations were persons had been argued, and these
arguments were submitted in writing to the Court. However,
before oral argument took place, Chief Justice Waite
announced: "The 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 to any person
within its jurisdiction the equal protection of the laws, applies to
these corporations. We are all of the opinion that
It is not half as strange that the Supreme Court judges
would render such an opinion, given their allegiance to the
propertied class, as the way that they rendered it. These guys
loved to write long-winded, complex opinions; look at any
Supreme Court opinion of the time (or any time)
and you'll see that. This question had never been covered in a
Supreme Court decision; it had been avoided. Here was the
perfect chance for any of nine Supreme Court judges to make
his place in history. All declined. No one wanted
to explain how an Amendment about ex-slaves had converted
artificial entities into the legal equivalent of natural persons.
This opinion without explanation, given before argument had even been
heard, became the law of the United States of America.
No state or federal legislature passed it or even
discussed; no Amendment to the Constitution was deemed
necessary; the citizens were simply informed that they had
a mistaken view about corporations, if they were informed
at all. Future Supreme Courts refused to even consider
the question, preferring to build on it, though occasionally future
justices would try to raise the question again.
Was the 14th Amendment about corporations? One of
the 1886 judges, Samuel F. Miller, had not thought so
in 1872, only 6 years after the Amendment had become law,
when the court was "called upon for the first time to give
construction to these articles." In the Slaughterhouse Cases
[83 U.S. 36 (1872)], he stated
(and I quote at length because it is important not only to the
question of corporate personhood, but to the question of
The most cursory glance at these articles discloses
a unity of purpose, when taken in connection with the history of the
times, which cannot fail to have an important bearing on any question
of doubt concerning their true meaning. Nor can such doubts,
when any reasonably exist, be safely and rationally solved without a
reference to that history, for in it is found the occasion and the
necessity for recurring again to the great source of power in this
country, the people of the States, for additional guarantees of
human rights, additional powers to the Federal Government;
additional restraints upon those of the States.
Fortunately, that history is fresh within the memory of
us all, and its leading features, as they bear upon the matter
before us, free from doubt.
The institution of African slavery, as it
existed in about half the States of the Union, and the
contests pervading the public mind for many years between those who
desired its curtailment and ultimate extinction and those who desired
additional safeguards for its security and perpetuation, culminated in
the effort, on the part of most of the States in which slavery
existed, to separate from the Federal Government and to resist
its authority. This constituted the war of
the rebellion, and whatever auxiliary causes may have contributed
to bring about this war, undoubtedly the overshadowing and
efficient cause was African slavery.
They [Negroes] were in some States forbidden to
appear in the towns in any other character than menial servants.
They were required to reside on and cultivate the soil without
the right to purchase or own it. They were excluded from many
occupations of gain, and were not permitted to give testimony in the
courts in any case where a white man was a party. It was said
that their lives were at the mercy of bad men, either because the
laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or
misconception may have been mingled with their presentation, forced
upon the statesmen who had conducted the Federal Government in
safety through the crisis of the rebellion, and who supposed that, by
the thirteenth article of Amendment, they had secured the result of
their labors, the conviction that something more was necessary in the
way of constitutional protection to the unfortunate race who had
suffered so much. They accordingly passed through Congress the
proposition for the fourteenth Amendment, and they declined to treat
as restored to their full participation in the government of the Union
the States which had been in insurrection until they ratified that
article by a formal vote of their legislative bodies.
We repeat, then, in the light of this recapitulation
of events, almost too recent to be called history, but which are
familiar to us all, and on the most casual examination of the language
of these Amendments, no one can fail to be impressed with the one
pervading purpose found in them all, lying at the foundation of each,
and without which none of them would have been even suggested; we mean
the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly made
freeman and citizen from the oppressions of those who had formerly
exercised unlimited dominion over him.
It has been argued that the men who wrote the 14th Amendment
specifically meant for the word "person" to be a loophole
which you could drive a giant corporation through. Apparently in
one of the railroad cases, an attorney, who had been on the
committee that drafted the Amendment, waived a paper before the court
claiming that it documented such; but the paper was not entered as
evidence, nor (apparently) was it shown to anyone, nor was it saved.
However, careful research has shown that,
John A. Bingham (the member of Congress who is known
to have been chiefly responsible for the phraseology of Section One
when it was drafted by the Joint Committee in 1866), had,
during the previous decade and as early as 1856-1859, employed not
one but all three of the same clauses and concepts he later used in
Section One. More important still, Bingham employed these
guarantees specifically and in a context which suggested that
free Negroes and mulattoes rather than corporations and
business enterprise unquestionably were the persons' to which he
then referred. [Graham, Howard Jay,
Everyman's Constitution, State Historical Society
of Wisconsin, 1968][See also Graham, Howard Jay, The Conspiracy Theory
of the Fourteenth Amendment, @ The Yale Law Journal,
Vol. 47: 341, 1938]
Before the Supreme Court determined that corporations were
persons and hence had constitutional rights female citizens
had decided that the Fourteenth Amendment should be interpreted to
give them the right to vote. In Minor v. Happersett
the Supreme Court ruled that "women" were not
persons for the purposes of the Fourteenth Amendment.
The moral and legal depravity of the Supreme Court during this period
(though of course they saw their job as securing the property of
those of their class), and the absurdity of treating corporations
as persons with natural and constitutionally recognized rights, is
illustrated by the deterioration of the legal position of the former
slaves and their descendants during this time. A series
of Supreme Court Judgments [92 U.S. 214 (1875),
92 U.S. 542 (1875), 106 U.S. 629 (1882),
109 U.S. 3 (1883)] of cases where men classified
as Negroes sought the protection of the 14th Amendment
narrowed the scope of that protection. Finally, in the infamous Plessy v. Ferguson
[163 U.S. 537 (1896)] decision, the Supreme Court
ruled that a man who was 1 part slave by ancestry
and 7/8 of white/free ancestry could be forced to sit in
a Aseparate but "equal" section of a
passenger train. In effect, this decision declared
people with non-European ancestors to not be persons with
constitutional rights. The decision would not be
overruled by a future Supreme Court until Brown v. Board
of Education in 1954.
Only justice John M. Harlan dissented in Plessy v. Ferguson.
Of the justices who had ruled that corporations were people in Santa Clara v. Southern Pacific,
three were still justices and rules that natural persons of the
wrong skin color were not persons in Plessy v. Ferguson.
These infamous three were Stephen J. Field,
Samuel Blatchford, and Horace Gray.
Two Supreme Court judges, Hugo Black and
William O. Douglas, later rendered opinions attacking the
doctrine of corporate personhood. I supply here most of
justice Black's opinion:
But it is contended that the due process clause
of the Fourteenth Amendment prohibits California from determining
what terms and conditions should be imposed upon this
Connecticut corporation to promote the welfare of
the people of California.
I do not believe the word 'person' in the Fourteenth
Amendment includes corporations. 'The doctrine of
stare decisis, however appropriate and even necessary at times,
has only a limited application in the field of
constitutional law.' This Court has many times changed its
interpretations of the Constitution when the conclusion was
reached that an improper construction had been adopted. Only
recently the case of West Coast
Hotel Company v. Parrish, 300 U.S. 379,
57 S.Ct. 578, 108 A.L.R. 1330, expressly overruled
a previous interpretation of the Fourteenth Amendment which had
long blocked state minimum wage legislation. When a statute
is declared by this Court to be unconstitutional, the decision until
reversed stands as a barrier against the adoption of similar
legislation. A constitutional interpretation that is wrong
should not stand. I believe this Court should now overrule
previous decisions which interpreted the Fourteenth Amendment to
Neither the history nor the language of the
Fourteenth Amendment justifies the belief that corporations are
included within its protection [303 U.S. 77, 86].
The historical purpose of the Fourteenth Amendment was
clearly set forth when first considered by this Court in the
Slaughter House Cases, 16 Wall. 36, decided
April, 1873-less than five years after the proclamation of
its adoption. Mr. Justice Miller, speaking for
the Court, said:
'Among the first acts of legislation adopted by
several of the States in the legislative bodies which
claimed to be in their normal relations with the
Federal Government, were laws which imposed upon the
colored race onerous disabilities and burdens, and curtailed
their rights in the pursuit of life, liberty, and property
to such an extent that their freedom was of little value, while
they had lost the protection which they had received from their
former owners from motives both of interest and humanity.
'These circumstances, whatever of falsehood or
misconception may have been mingled with their presentation, forced
... the conviction that something more was necessary in the way
of constitutional protection to the unfortunate race who had
suffered so much. (Congressional leaders) accordingly
passed through Congress the proposition for the
fourteenth Amendment, and ... declined to treat as restored
to their full participation in the government of the Union
the States which had been in insurrection, until they ratified
that article by a formal vote of their legislative bodies.'
16 Wall. 36, at page 70.
Certainly, when the Fourteenth Amendment was submitted for
approval, the people were not told that the states of the South
were to be denied their normal relationship with the
Federal Government unless they ratified an Amendment granting new
and revolutionary rights to corporations. This Court,
when the Slaughter House Cases were decided
in 1873, had apparently discovered no such purpose. The
records of the time can be searched in vain for evidence that this
Amendment was adopted for the benefit of corporations. It is
true [303 U.S. 77, 87] that in 1882,
twelve years after its adoption, and ten years after the Slaughter House Cases, supra,
an argument was made in this Court that a journal of the
joint Congressional Committee which framed the Amendment,
secret and undisclosed up to that date, indicated the committee's desire
to protect corporations by the use of the word 'person.' Four years
later, in 1886, this Court in the case of Santa Clara
County v. Southern Pacific Railroad,
118 U.S. 394, 6 S.Ct. 1132, decided for the
first time that the word 'person' in the Amendment did in some
instances include corporations. A secret purpose on
the part of the members of the committee, even if
such be the fact, however, would not be sufficient to justify any
such construction. The history of the Amendment proves that the
people were told that its purpose was to protect weak and helpless
human beings and were not told that it was intended to remove
corporations, in any fashion, from the control of
state governments. The Fourteenth Amendment followed the
freedom of a race from slavery. Justice Swayne said in the Slaughter Houses Cases, supra,
that: 'By any 'person' was meant all persons within the
jurisdiction of the State. No distinction is intimated on
account of race or color.' Corporations have neither race
nor color. He knew the Amendment was intended to protect
the life, liberty, and property of human beings.
The language of the Amendment itself does not support the theory that
it was passed for the benefit of corporations.
The first clause of section 1 of the Amendment reads:
'All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.'
Certainly a corporation cannot be naturalized and 'persons' here is
not broad enough to include 'corporations.'
The first clause of the second sentence of section 1 reads:
'No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States.' While efforts have been made to persuade
this Court to allow corporations to claim the protection of
this clause, these efforts have not been successful.
The next clause of the second sentence reads: 'Nor shall any
State deprive any person of life, liberty, or property,
without due process of law.' It has not been decided that
this clause prohibits a state from depriving a corporation
of 'life.' This Court has expressly held that
'the liberty guaranteed by the 14th Amendment against
deprivation without due process of law is the liberty
of natural, not artificial persons.' Thus, the words
'life' and 'liberty' do not apply to corporations,
and of course, they could not have been so intended
to apply. However, the decisions of this Court, which the
majority follow, hold that corporations are included in this clause
in so far as the word 'property' is concerned. In other
words, this clause is construed to mean as follows:
'Nor shall any State deprive any human being
of life, liberty or property without due process
of law; nor shall any State deprive any corporation
of property without due process of law.'
The last clause of this second sentence of section 1 reads:
'Nor deny to any person within its jurisdiction the
equal protection of the laws.' As used here, 'person' has
been construed to include corporations.
[303 U.S. 77, 89] Both Congress and
the people were familiar with the meaning of the
word 'corporation' at the time the Fourteenth Amendment was
submitted and adopted. The judicial inclusion of the
word 'corporation' in the Fourteenth Amendment has had a
revolutionary effect on our form of government. The states
did not adopt the Amendment with knowledge of its sweeping meaning
under its present construction. No section of the Amendment
gave notice to the people that, if adopted, it would subject every state
law and municipal ordinance, affecting corporations, (and all
administrative actions under them) to censorship of the
United States courts. No word in all this Amendment gave any
hint that its adoption would deprive the states of their long-recognized
power to regulate corporations.
The second section of the Amendment informed the people that
representatives would be apportioned among the several states 'according
to their respective numbers, counting the whole number of persons in
each State, excluding Indians not taxed.' No citizen could gather the
impression here that while the word 'persons' in the second section
applied to human beings, the word 'persons' in the first section in some
instances applied to corporations. Section 3 of the Amendment said
that 'no person shall be a Senator or Representative in Congress,' (who
'engaged in insurrection'). There was no intimation here that the
word 'person' in the first section in some instances included
This Amendment sought to prevent discrimination by the states against
classes or races. We are aware of this from words spoken in this
Court within five years after its adoption, when the people and the
courts were personally familiar with the historical background of the
Amendment. 'We doubt very much whether any action of a State not
directed by way of discrimination against [303 U.S. 77, 90] the
Negroes as a class, or on account of their race, will ever be held to
come within the purview of this provision.' Yet, of the cases in this
Court in which the Fourteenth Amendment was applied during the
first fifty years after its adoption, less than one-half of 1 per cent
invoked it in protection of the Negro race, and more than
50 per cent. asked that its benefits be extended
If the people of this nation wish to deprive the states of their
sovereign rights to determine what is a fair and just tax upon
corporations doing a purely local business within their own state
boundaries, there is a way provided by the Constitution to accomplish
this purpose. That way does not lie along the course of judicial
amendment to that fundamental charter. An Amendment having that
purpose could be submitted by Congress as provided by
the Constitution. I do not believe that the
Fourteenth Amendment had that purpose, nor that the people believed
it had that purpose, nor that it should be construed as having that
Hugo Black, dissenting, Connecticut General
Life Insurance Company v. Johnson
[303 U.S. 77, 1938]. Justice Black was not
alone in his questioning of the legitimacy of corporate personhood.
Justice Douglas, dissenting in Wheeling Steel
Corp. v. Glander [337 U.S. 562 (1949)],
gave an opinion similar to, but shorter than,
the one quoted above, to which
Justice Black concurred.
Why Corporate Constitutional Rights Are Anti-democratic
Is corporate personhood (including the whole range of
corporate constitutional rights) a bad thing?
If you are a wealthy corporate stockholder who
doesn't care about the environment or the fate of less wealthy
human beings, the answer is no. In fact,
corporate personhood is right up there with corporations =
limited liability as one of the good things in life.
For the rest of us, corporate personhood is a very bad
Corporate personhood changes the relationship between people and
corporations and between corporations and the government, and even
between government and the people. The effects of this
change in relationships range from loss of liberty and income for
citizens to the destruction and poisoning of the earth and the
corruption of the U.S. governments (including state and
local governments). As outlined in the
Declaration of Independence,
the Articles of Confederation, the Constitution,
the Federalist Papers, and the Anti-Federalist Papers,
government derives its powers and responsibilities from
the people. Corporations, chartered by governments, are
subject to the people with the government acting as an
intermediary. Corporate personhood allows the
wealthiest citizens to use corporations to control
the government and use it as an intermediary to impose their will
upon the people. It is this basic about-face from democracy
that should most concern us. But because of our corrupted
legal system, corporate media, and corrupted
elected officials, social activists usually focus their
efforts on the bad, even horrible, results of corporate
control of government and society. Reformers run around
trying to get bureaucrats to enforce the minimalist regulations that
have been enacted into law, rather than finding a way to prevent
the corporate lawyers and lobbyists from writing the laws.
Take, for instance, the
Environmental Protection Agency (EPA) and its feeble
attempts to clean up the most toxic sites in the
United States. Almost all of these sites were created by
large corporations. Regulation of corporations was traditionally
left to State governments; the Federal Government
regulated only interstate commerce (though in the
20th century, it increasingly used its power to regulate
interstate commerce as a means to regulate all commerce).
Why did the State governments not prevent the creation of
toxic sites in the first place?
One might claim that there was simply, in the past,
a lack of knowledge on everyone's part about the environment
and the dangers of toxins. This theory does not stand up
to analysis. Poisoning wells was a crime from the earliest of
times. Government standards for food purity and safety go back to
at least the Middle Ages. Sanitation laws came into
common existence in the U.S. during the 19th century.
But toxic sites were the result of toxic dumping by
large industrial corporations. They dumped toxic byproducts
into the air, into waterways, and onto the ground.
They continue to do so today with environmental law
written to give them permission to pollute up to specified levels,
and even at higher levels if they are willing to pay
small fines. In addition, they have used their
political power to force taxpayers to pay to clean corporate
toxic spills. In some cases, they have escaped financial
liability through the corporate bankruptcy laws, which limit
the liability of stockholders.
Billions of dollars that were paid out in dividends
to stockholders cannot be reclaimed by the people in order to cover the
costs of toxic cleanup at taxpayers' expense.
After corporations were given personhood and
constitutional rights in 1886, state governments began to
find that attempts to regulate corporations were thwarted both by
Supreme Court decisions and the Arace to the bottom."
The immediate effect of the Santa Clara decision was the
protection of corporations from some (but not all)
state regulation; state regulations could be tested in
federal courts to see if they violated the corporations
constitutional rights. If a state successfully, and
with federal court approval, prohibited an industry from
dumping waste in streams and rivers (and actually
enforced such a law) the industry would simply move to
a state that had no such law or enforced it laxly.
In recent decades, the Supreme Court has ruled that corporations
have the Fourth Amendment constitutional right to freedom from
random inspection [See ** v. City of Seattle,
387 U.S. 541 (1967) and Marshall v. Barlow's, Inc.,
436 U.S. 307 (1978), among others].
Without random inspections, it is virtually impossible to enforce
meaningful anti-pollution, health, and safety laws.
What would it take to make corporations stop polluting and pay to
clean up the messes they have created? They would have to be
prohibited from lobbying. They would have to be prohibited from
contributing to political campaigns. They would need to lose their
limited liability status. They would need to have their
charters limited and enforced. They would need to be subject
to inspections without warrants, and they would have to have their
ability to buy decisions in their favor in the courts ended.
In order to remove any of this set of privileges, we would
need to make it legally clear that they do not have corporate personhood
or the constitutional rights the courts pretend go with it.
Or consider subsidized corporate timber harvesting on
government lands. One might see this as a case of simple, raw,
economic and political power. The timber companies wish
to grab (privatize) the profits in a situation and pawn off
(socialize) the costs by charging them to the taxpayers. They
do this by writing the laws governing the sale of timber.
It is sold cheap, and the government does not take into
account its own costs (administration,
building roads, etc.) in setting prices.
The net result is that taxpayers loose money,
the timber industry makes profits, and the environment is
managed in an unsound manner. Corporate personhood does
not, in itself, cause laws to be written to subsidize the
wealthy holders of timber company stock with the
income taxes laid on the backs of ordinary wage earners.
But it has created the situation is which corporations are
free to lobby and corrupt the political process.
To prevent them from lobbying and contributing to
political campaigns, we must revoke their
corporate personhood and constitutional rights.
Look at the recent consolidation of the media, from bookstores
to cable television empires. This is part of the process
of putting Americans in chains. Corporations are able to
stifle individual liberty by driving out small local businesses and
replacing them with cloned outlets. What does that have
to do with corporate personhood? Well, some people,
realizing that in the long run local communities prosper with
locally owned businesses, have tried to limit the corporate chain's
right unlimited expansion. In the case of Liggett v. Lee
[288 U.S. 517 (1933)] the State of Florida
had imposed a filing fee for licenses for stores that was
progressive: a person opening one store would pay a
$5.00 fee, whereas a large chain was required to pay $30.00
per store. J. C. Penny Company challenged the law
and the Supreme Court of the U.S. ruled that this law
violated the 14th Amendment's principle of equal protection.
This was at a time when the Jim Crow system of
discrimination against blacks was at its height; blacks were still not
considered persons protected by the 14th Amendment, but
corporations were. Judge Brandeis's dissent in the case is
well worth reading for anyone interested in a critique of the growth of
corporate power up to 1933.
If terrorists had tried to bomb independent bookstores out of
existence in the 1990's, people would have been demanding police
protection for our neighborhood bookstores. Instead,
the independents, which had survived fairly well against the
earlier versions of bookstore chains, were bombed (economically) by
Barnes & Noble and Borders.
Now independent book publishers, who had long
struggled to survive against the big corporate publishing empires, can
have their books effectively censored by two "buyers",
one working at each of the chains. Now the dream of
owning a small bookstore and carrying the books that you love has been
replaced by the nightmare of being a low-paid clerk in a chain
bookstore. Corporate personhood offers little or no advantage
to small, local stores and businesses: it is of advantage only to
the national and international corporations.
The book industry is just one segment of the media industry that
has consolidated at an accelerating pace at the end of the
20th Century. Laws could have been enacted insuring a
multitude of voices on the radio and TV and in newspapers and
magazines, but instead we are subjected to one voice:
the voice of money. Endowed with
corporate personhood, the media corporations have been
able to lobby and influence politicians
(with campaign contributions) to allow media empires
to effectively extinguish meaningful freedom of the press in the
Compare the position of most real persons in the U.S.
at present. Most real persons are lucky if they can
shake their congress person's hand; few of us have the
power to talk to any congressman on any committee that might help our
personal interests. Most real persons were not consulted
before Congress acted recently to toss out the
New Deal era banking laws, allow the consolidation of the
media industry, or change the rules for
personal bankruptcy. But multinational corporations have
unlimited access to Congress. They buy that access with
campaign contributions (and often, lucrative jobs for
ex-Congresspersons). The public is told what to think by a
(almost always) unified media voice. The public is
usually not even told when critical anti-democratic or economic changes
are being considered by Congress.
Because of corporate personhood and corporate
constitutional rights, the ordinary, natural person has
become a second-class person in the eyes of the law.
A person who has to work for wages as a corporate employee
loses his Constitutional rights (such as free speech)
when he steps onto corporate property, according to
the courts. In any dispute he has with a
corporate person he is confronted with the economic penalty of
having to buy justice from lawyers and courts, which for
the corporation is a tax-deductible expense. For an
international corporation, a million dollars
in legal costs hardly affects the bottom line; for a
real person, a thousand dollars in legal costs
may mean missing a rent or mortgage payment. Even if
ordinary people try to work together, as in a labor union,
they are not afforded the same privileges as a corporate person.
Finally, look at the corporate contributions to politicians and their
overall ability to influence political thought through the
corporate media. Without ever giving a penny to a
politician's campaign the corporate media would have enormous
control of the political process through their ability to filter news
and opinions. Dependent on other out-of-control
corporations for their own advertising income, they have no
reason to anger their real clients by impartially reporting
the news. When you add to that the enormous amounts of money
that corporations are able to use to affect the political process,
you have the makings of absolute control of government
and society. There have been some efforts by states
and the federal government to put some mild restrictions on
corporate campaign spending. But in First National Bank
of Boston v. Bellotti [435 U.S. 765 (1978)]
the U.S. Supreme Court declared that
corporate persons have the same free speech rights as
natural persons, and could spend unlimited sums of money
"A speaking" in the form of ads and campaign
contributions. The Massachusetts Supreme Court had
unanimously upheld the validity of the campaign finance reform law
Summing up, corporate personhood is bad because it is the basis of
corporations being regarding by the Supreme Court with other
rights, such as equal protection under the law,
free speech, the right to remain silent in
criminal cases, and protection from searches.
These rights in turn have been used by the corporations to
corrupt our citizens, government and legal system,
to treat workers and small businesses as economic prey,
and to destroy the environment we all depend on to sustain life
What would change if corporations lost personhood?
There are two broad areas that could change if we revoked
corporate personhood. One is directly related to corporations
not being persons for the purposes of the 1st, 4th,
and 14th Amendments. The other is the critically
important secondary effect of what can be achieved if we push
corporations out of the political process, which can be achieved
only if we remove their personhood. Knowing exactly what would or
could change has to be based on what changes have been made,
or prevented, since the establishment of corporate personhood
as a legal principle in 1886.
Fortunately, we do have a road map of sorts,
a mirror image of this issue. In 1896, the
United States Supreme Court, in Plessy v
Ferguson, effectively declared that "Negros"
were not protected by the Fourteenth Amendment, were not in
fact the persons it was meant to protect. In 1956,
in Brown v. Board of Education,
the Supreme Court ruled so that suddenly "Negroes"
again became full legal persons. I hope I don't
need to describe the plight of African-Americans and other people
of color during the period from 1896 to 1956, nor will
I recount the campaign necessary to get the court to change its
mind in 1956.
Were African-Americans (and others classified as non-white)
suddenly better off the day after the 1956 ruling?
Potentially yes, but factually, no. It took years
of protests, court cases, legislative changes, changes in
people's awareness and semantics, and even many
people's murders at the hands of those who opposed change,
before African-Americans began to be treated, legally, socially,
and economically, as citizens and persons.
The process is not yet complete.
When corporate personhood is terminated, whether it be by a
Supreme Court decision, an Amendment to the
U.S. Constitution, or by citizens and States recovering
the power to govern themselves democratically,
the next day it may seem like nothing really has changed.
But the potential for change will be as great as it was for
people of color after Brown v. Board of Education.
Just as in 1956, you could predict that, finally guaranteed the
protection of the Federal Government under the
Fourteenth Amendment, people of color might soon be able to
shop with white people, have the vote, elect people
of color to office, and make substantial economic gains,
we can predict what can happen after the ending of
corporate personhood. But these things will not happen
unless there are years of protests, court cases, legislation,
and changes in people's awareness. We can't predict
the details, but since we know what has been obstructed in
the past, we can see what freedoms the people might gain once we
begin to end corporate dominance.
Corporate personhood is at the root of such Supreme Court
rulings as First National Bank of Boston v. Bellotti
[435 U.S. 765 (1978)], which equate corporate
donations to political campaigns with free speech. They allow
corporate money to govern the political process.
These rulings can be reversed once the 1886 decision
is reversed, since they are directly dependent upon it.
Then we should be able to force corporations out of the
political process. We could do this through legislation
or through the chartering process. Without personhood,
the corporations are not entitled to
1st Amendment rights; they will have only what privileges
the people, through our government, gives them.
We can and should prohibit them from making any kind of
contribution to politicians, to lobbying groups,
or to campaigns involving referenda. Any advertising
that does not sell products, that is, any advertising not
presenting factual information about the products or services
a corporation offers, should be prohibited.
Later in this essay, the secondary effects of removing corporations
and their money from the political decision making
(including regulatory) process will be examined. First, other
changes that are directly dependent upon revoking
corporate personhood need examining.
Without the protection of the 14th Amendment, corporations could
be purposefully discriminated against in legislation.
It would even become possible to discriminate against
particular types and sizes of corporations. The citizens
would thereby gain much greater control over the economy,
both nationally and at the local level.
For instance, the Supreme Court in the past,
based on corporate personhood, has held that States and
localities cannot favor small or local businesses over corporate
chain stores or out-of-state businesses, as in Liggett v. Lee
[288 U.S. 517 (1933)]. Towns that want all business
to be local, or even that want to keep out certain chains but
allow others, will be able to have that control,
if they wish. They could also finally have truly
effective "bad boy" laws (which prohibit
businesses with criminal records from operating in
a community), as opposed to the current ineffective ones
(because we'll be able to limit corporations appeals to
Without personhood, the due process used for corporations could
be different than the due process used for individuals or
unincorporated businesses. As an illustration,
corporations might only be allowed a single hearing when their
actions effect an endangered species, rather than the current
system where they can spend millions of dollars of their
own money, and of taxpayer money, and of the
non-profit environmental groups that oppose them, in an
unending series of appeals and diversionary legal filings.
Another example would be that corporate charters, granted by
the states, might channel certain types of corporate wrongdoing
into special courts where justice is swift and stern, including the
immediate closing of businesses that violate environmental,
consumer safety, or labor laws.
Another important constitutional "right" given
to corporations is protection under the 4th Amendment,
which states, "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be
searched, and the persons to be seized."
The key Supreme Court decision here was Hale v. Henkel
[201 U.S. 43 (1906)], which established that
corporations have protection under the 4th Amendment based
in part on their status as persons. It was decided that
a subpoena issued by a federal grand jury to
the secretary of a corporation, MacAndrews & Forbes Company,
amounted to such an unreasonable search and seizure.
This ruling made it difficult to enforce the Sherman
anti-monopoly act, which naturally required the papers
of corporations in order to determine if there existed grounds
for an indictment. Oddly, the same ruling recognized it would be
very hard to give the 5th Amendment right that "nor shall
any person ... be compelled in any criminal case to
be a witness against himself," because a corporation,
not being a natural person, cannot testify at all. It
can be represented in court by natural persons, who cannot
take the 5th on the corporation's behalf, because you only
have the right to not incriminate yourself; you have
no immunity to testifying against other persons.
The importance of the 4th Amendment right of
corporate persons is shown, among other places, in Marshall v. Barlow's, Inc.
[436 U.S. 307 (1978)].
The Occupational Safety and Health Act
of 1970 (OSHA), enacted to try to get employees safe working
environments, allowed for surprise inspections of workplaces.
These inspections were struck down by the Supreme Court,
which declared that OSHA inspections required either the
corporation's permission or a warrant. Apparently the
constitutional personhood rights of corporations trump
the rights of real persons. Thousands of
workers have died, been maimed, or poisoned
since 1978, while on the job; many of these accidents
were preventable, but the Supreme Court did not consider the
liberty of the workers, only the liberty of corporations
and their wealthy owners in making this murderous decision.
No workplace that follows OSHA safety rules need
fear a surprise inspection.
Revoking corporate personhood and 4th Amendment rights
for corporations would allow the government to make reasonable
inspections to insure worker safety, to insure that
toxic substances are not being emitted, and to insure that
corporations are operating as allowed by their charters and
the law. Revoking personhood should not be feared by
law-abiding, legitimate businesses and corporations who are obeying
We now return to the possible secondary results of ending
corporate personhood and getting corporations out of the
With corporations out of the political process, the whole nature
of regulation would change for the better. Whether
regarding the environment or food safety, we would not
have to compromise with powerful corporate political machines.
Do the people want to prohibit clear-cutting?
Then the laws will prohibit clear-cutting, because
no politician will be on a wood-products
corporation's payroll. Do the people want
zero emissions into streams and rivers?
Then the law will prohibit any and all toxic emissions,
because the politicians will rely on people for votes, not on
polluting corporations for money to buy votes.
The main roadblock to single-payer, national health care has
been the enormous amount of lobbying and campaign contributions from
those corporations that profit from the current system.
By prohibiting corporate-sponsored
campaign contributions to politicians and corporate-sponsored
propaganda on television, the national consensus in favor
of national health care could no longer be thwarted.
Ending corporate personhood is no more a magic-bullet than was the Brown v. Ferguson
ruling, or the passing of the Fourteenth Amendment itself.
As long as there is a society, there will be struggle over
how resources, including political powers, are allocated.
Ending corporate personhood and corporate
constitutional rights would result, not in a level
playing field, but in a field where
We the People have the advantage again, where in any
particular issue that is fought out in the public arena,
the people are more likely to win than the owners of
How We Can Revoke Corporate Personhood
Corporate personhood and corporate constitutional rights are
a lie. How do we get the courts and government to
The simple solution would be to somehow bring a case involving only
corporate personhood to the Supreme Court and ask them to
rule on it. Hopefully they would take a
strict-constructionist line and recognize that the Constitution
does not mean corporations when it says persons.
This method is unlikely for a variety of reasons,
the foremost being that the current Supreme Court is a product
of the corporate-dominated legal system and appointees are
designated by corporate-dominated presidents and approved by a
corporate-dominated Congress. In addition,
many roadblocks have been built into the system to prevent such a
case from even coming to the Supreme Court. We would need a law in
some State or locality specifically denying
corporations personhood, but attorneys and judges have so
far taken the view that any such law would be outside the allowable
bounds for local jurisdictions. They can
(and certainly will) advise elected officials that they
cannot even allow such a law to come up for a vote
But neither did the railroad attorneys simply declare
corporations "persons" and a few days later, have
the Supreme Court agree with them. Powerful as
they were, it took them 15 years to get
corporate personhood enshrined in the system.
We will need a sustained grassroots campaign to abolish
corporate personhood. This campaign has barely begun.
We can win with education and action. We must
try to pass laws abolishing corporate personhood in every
local government and in every state. We must argue
before the courts so that they become familiar with our ideas.
We must pass referenda and then protest when our referenda
are struck down by the corrupt judiciary. We must demand
that elected representatives take a stand against
corporate personhood if they want the votes
of environmentalists, workers, and small business owners.
And we must argue our points in the law schools where
future generations of lawyers and judges are
Supreme Courts do not work in a vacuum. When the
public cries out for an issue to be tried,
the Supreme Court loses its prestige. Perhaps even its
ability to govern the country, if it refuses to hear
the issue. Even if, in the first case,
the Supreme Court ruled in favor of corporate personhood,
if they at least gave an actual rational to their madness, we would
be able to tear it apart. We could focus on each point of
their argument and bring suits appropriate to overruling
We could, and probably should, clarify our position by
an Amendment to the Constitution that clarifies the
legal status of corporations. Amending the Constitution
is a very difficult process, but it is the ultimate expression of
the people's authority.
The corporate media will not be on our side. We must
communicate through our natural inter-connectivity as a
Other tactics are available besides education, legislation,
and lawsuits. We can find corporations that will
publicly and voluntarily renounce their corporate personhood.
We can boycott corporations that lead the fight to retain
corporate personhood. We can add civil disobedience
and direct action to our campaign. If a State revokes
corporate personhood, and the Supreme Court
overturns them, we could refuse to participate in the
federal government and simply govern ourselves through
the State government until the Supreme Court sees
The struggle to abolish slavery was long and difficult.
Even as abolitionists seemed to have won, by passing
the 13th and 14th Amendments, counterattacks were being
prepared. Corporations were
pronounced "persons" in 1886, and in 1896,
black people were declared to be sub-persons. In the
20th century we have seen the emergence of wage-slavery on a
massive scale. We must ask ourselves:
Are corporations to be our masters? Or are we to
be free? What price are we willing to pay for
our freedom, and what price do we pay now for our
The Abolition of corporate personhood is part of the abolition
of slavery. It is deeply connected to our need to save
the earth from environmental destruction. This is not an
optional campaign. Hard as it might be to
fight now, it is better to fight now than
in 20 years when corporations are even more entrenched and the
average person has sunk even deeper into our modern style
Frequently Asked Questions
What would be the immediate effect of revoking corporate
The only immediate effect of revoking corporate personhood, either at
the state level or by the Supreme Court, would be to cause the
legal status of corporations to revert back to that of
artificial entities. (We should refuse to use the old
terminology of artificial persons.) They could still be
represented in courts by attorneys and would be subject to
the law and taxation.
However, a whole body of Supreme Court decisions would have to
be re-examined. The ability of States,
when granting or renewing corporate charters,
to restrict harmful activities of corporations would be
greatly enhanced. New legislation to protect
the environment, workers, small businesses, and consumers
could be enacted without worrying that it would be struck down by
the Supreme Court.
How would small businesses be affected?
Small, incorporated businesses would become artificial entities
under the law. Most small businesses have gained
no meaningful advantage from corporate personhood.
Small businesses do not have the kind of money it
takes to corrupt the political process that large corporations
have. Small businesses would be better situated to protect
their interests since laws favoring local businesses
over national and international corporations would become
If corporations can't lobby, how can they get laws that are
fair to them?
Revoking corporate personhood would not immediately prevent
corporations from lobbying, but it would allow laws to be
passed (and enforced) that would restrict
corporate lobbying and campaign contributions. If a
state legislature or Congress is considering legislation that
affects a particular industry, they would be able to hold hearings
and interrogate corporate representatives.
If a corporation feels its needs a change in
the laws, not for its own profits, but in order to
insure competition or public safety, it could petition
the legislature to hold such a hearing.
What about past harms done by corporate personhood?
That is an interesting question with no certain answer. The
Constitution prohibits ex post facto laws (laws that
punish for deeds committed before the law was written),
and properly so. However, revoking
corporate personhood does not create an
ex post facto law. It may be possible to force
corporations to rectify damage they did to the environment during
the era of corporate personhood.
Would the media lose its freedom of the press and free
The ruling that corporate ads on political and
social issues is free speech could be overturned, but the
corporate media would continue to have freedom of the press.
New legislation would be needed to restrict corporations
to ownership of a single radio or TV station,
newspaper, or magazine and to insure that individual and
non-corporate voices could be heard as well.
How will revoking corporate personhood affect non-profit
Non-profit corporations would continue to operate as the
artificial entities that they are. However, it would be
possible to restrict for-profit corporations from working for
Why don't unions have corporate personhood?
Unions don't have corporate personhood, even though they are
also, legally, artificial entities, because unions have never
fought to get it. Unions have largely avoided the
court system, correctly seeing it as the home court of
Why do you want to restrict the freedom of stockholders and
people who work for corporations?
This is a trick question. Corporate lawyers and
propagandists will try to get people who work for corporations to
support corporate personhood by lying to them about
the effects of revocation. In fact, individuals,
whether they work for corporations or not, will retain
all of the freedoms recognized in the Constitution.
In addition, individuals will have their freedom enhanced by
not having their liberty overpowered by the rule
of corporations. Only the artificial entity of
the corporation will be redefined to have restrictions on
Wouldn't we lose the power to tax and regulate corporations?
In the art of lying it is hard to surpass corporate lawyers.
They have managed to place in the minds
of law students, in the texts of some
law books, and in the public mind, the idea that
corporate personhood is necessary to bring corporations under
rule of law. This is such a big lie it is
amazing that they can tell it with a straight face.
Corporations were taxed when they were
artificial entities, long before they were
granted personhood. They were more subject to
the rule of law, not less, before receiving
personhood. Read up on the history; don't be
November 13, 2000
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