The Corporate Achilles Heel

The Corporate Achilles Heel

by Rick Casey

Protest rally on the first anniversay of Citizen's United,
Boulder, CO
January 21, 2011



Introductory Remarks

I'd like to thank the Boulder County Democrats, the Coffee Party, and especially Move To Amend, its founders and its many volunteers, and all the other people who are here today working on these fundamental and vitally important issues: corporate personhood and the disastrous Supreme Court ruling on Citizens United. Both must be reversed; but today I want to emphasize what I consider the Achilles Heel of the power of corporations: namely, the legal fiction that we call corporate personhood.

The Setting

Corporations are some of most powerful organizations in the history of the world. It's said that of the 100 largest economies on the planet, 51 of them are corporations -- and that statistic is several years old. Maybe it's even more now. They have grown so powerful that it is difficult indeed for even the US government to control them -- but I don't need to tell you that. You know this! So how can we, the common people, ever hope to bring them under control? How can we even have the audacity to think that we, the common people, can even confront them, these mighty corporate behemoths which stop at nothing in their quests for riches and power, which are trashing our planet, eroding our communities and which have turned our hard-earned democratic form of government into a joke that is governed by a financial plutocracy?

Why? Because we have the truth on our side.

How? Because the very concept of a corporation is a legal fiction.

The Early History

A corporation does not exist in Nature. It was not made by God. It is never mentioned in the Constitution. Corporations exist in their current form in our country only because the Supreme Court of the United States says that they can exist in that form. But is the Supreme Court always right? Are they so perfect that, in their infinite wisdom, we should allow them to perpetuate this blatant falsehood -- that a corporation is equal to a human being before the law? No, my fellow citizens, we should not! And this is why:

Because corporate personhood is a legal fiction with the flimsiest of foundations. It was never actually decided by a court decision. It was never legislated into existence by any legislature. No, it was established by hook and by crook, I would say -- and I think if you read the history of how it happened I think that is exactly how you would describe it too.

You should know it for certain that corporations were kept on damn short leashes by all the state governments, where they were incorporated, during the first 75 years of our country's existence. Every American patriot who fought in the Revolution knew they weren't just fighting the King's army -- they were also fighting against the Crown Charted corporations that operated the American colonies on the King's behalf. So when the newly formed American states allowed a corporation to come into existence, it could only do so for a specific stated purpose that served a specific local need and for a specific period of time. Corporations could not own other corporations. When their charter expired, the assets were divided among the shareholders, and it was dissolved. And if they did not operate within the stated purpose of their charter, they were either fined or their charter was revoked -- pronto! Dozens of corporations had their charters revoked in first half of the 19th century. The young Nation, and its founding Fathers, were rightfully wary to keep the power of corporations under strict control, because they had known firsthand what it meant to be dominated by giant, transnational corporations, such as the East Asia Company.



The Change

So how did this change? It changed when the railroad companies, in the aftermath of the Civil War, began craftily using the 14th Amendment to their own legal advantage. That Constitutional amendment, which helped to end the Civil War and was passed in 1868, was supposed to grant citizenship to anyone born in America, and to overturn the Dred Scott decision (another astoundingly bad Supreme Court decision in 1857). Do you think when the US Congress passed the 14th Amendment, they thought they were establishing corporate personhood? I don't think so!

No, to my mind, the 14th Amendment was perverted -- yes, perverted I would say is about the right word to describe this disastrous turn of events -- by Corporations to apply the Amendment to themselves, as legal persons in the eyes of the law. Don't believe me? It's true! The first such Supreme Court case was Santa Clara Country vs Southern Pacific Railroad in 1886, where the term "corporate person" was first used -- but not in the case itself. No, it was interjected into the court summary by a clerk! A clerk! It was never even mentioned by one of the Supreme Court justices in their decision. But once established, a precedent was set, and that is how this legal fiction got established: by corporations, mostly railroads, which were the largest corporations back then, who agressively pushed a concious legal strategy to achieve it. And so it spead: between 1886 and 1910 there were 307 more cases brought before the Supreme Court regaring the Fourteenth Amendment. Nineteen of them involved the rights of African Americans; two hundred and eight-eight of them were about Corporations seeking human rights. And that, my friends, is how this legal fiction started. (1)

The Aftermath

But is this such a bad thing, you might ask? Should we be so concerned that something so remote, so artificial, this complicated legal abstraction really be of such concern to us? And besides, it has been around since 1886, one hundred and twenty five years. How can we ever expect to reverse 125 years of corporate law?

My friends and fellow Americans, it's because we have to do this. We simply have no choice. Corporations have used this legal fiction over the last 125 years to bend and shape and force and warp our entire economy -- really! the entire legal and financial system that supports the economy, and without which it could not operate -- into an economy that exists for the health and well being of who? [pause....then softly] Not human beings. Not for the nurturing of our children. Not for sake of families and communites, where human beings are meant to grow and develop, be educated...and play....and love.

NO!! We have an economy that exists for the health and well being of General Motors, of Exxon, of Goldman Sachs, and for the military industrial complex that eats up over half of each your tax dollars, year in and year out!!! Just look at who is most rewarded in our economy -- and you will see why the economy exists.

The Right Thing To Do

So, I ask you again, how can we, the common people, the little people, dare to stand up against these colossal economic empires? It is a dark time in our country, a dark time....but does that mean we give up? There have been dark times in our country before....and some people did not give up...such as Howard Zinn, the late great historian, who knew full well the dangers of excessive corporate power; and here what he might say today:

"To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places--and there are so many -- where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction. And if we do act, in however small a way, we don't have to wait for some grand Utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory." 2

Yes, my friends -- reversing corporate personhood is the right thing to do!!
Let's get started today!!
Thank you!!

1 Hartmann, p. 105

2 Zinn, p. 208

References


Constitutional Accountability Center (2010). A tale of two courts: Comparing corporate rulings by the Roberts and Burger courts. 1200 18th Street, N.W., Suite 1002, Washington, D.C. 20036. www.theusconstitution.org.
 


Barry Friedman (2009). The story of ex parte Young: Once controversial, now canon. New York University School of Law, New York University Public Law and Legal Theory Working Papers, NELLCO Year 2009. barry.friedman@nyu.edu. (Friedman is Fuchsberg Professor of Law and Vice Dean, New York University School of Law. B.A., University of Chicago, 1978; J.D., Georgetown University Law Center, 1982. His faculty biography calls him a leading authority on constitutional law.)

David H. Gans & Douglas T. Kendall (2010). A capitalist joker: The strange origins, disturbing past and uncertain future of corporate personhood in American law. Constitutional Accountability Center. www.theusconstitution.org.
Howard Jay Graham (1968). Every man’s constitution. Madison, Wisconsin: State Historical Society of Wisconsin.

Thom Hartmann (2002). Unequal protection: The rise of corporate dominance and the theft of human rights. Rodale.

Ted Nace (2003). Gangs of America: The rise of corporate power and the disabling of democracy. San Francisco: Berrrett-Koehler, 2003.

Howard Zinn (1980). You Can't Be Neutral on a Moving Train: A personal history of our times.

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