What does this year’s Oscar winner for best film and the topic of a new book on corporate power have in common? Besides the Oscar announcement and book release being just days apart, the title of the best film, “The Shape of Water” describes a property of nature that corresponds to a major theme described in We the Corporations: How American Businesses Won Their Civil Rights by UCLA Law Professor Adam Winkler.
Like water, corporations are increasingly legally malleable and pliable. Water conforms to whatever shape it occupies. It’s natural law. The “shape” or definition of corporations is not due to gravity or any other law of nature. The “shape of corporations” is increasingly due to intentional and deliberate activist Supreme Court decisions over more than the past century, with some decisions seemingly contradicting previous ones, yet virtually always providing corporations greater flexibility and power.
The widening and deepening anger over the ever-expanding abuses and assaults of corporations to people, communities and the planet coupled with the frustration that traditional activist responses are less effective has given rise to greater interest in the subject that Winkler examines: corporate personhood and rights.
Winkler’s historical account of how corporations came to acquire constitutional rights of people is helpful, especially if it reaches new audiences. It’s a history, however, that for the past number of years, if not decades, has been shared in great detail in talks, writings, workshops and videos by the Program on Corporations, Law & Democracy, Women’s International League for Peace & Freedom, Community Environmental Legal Defense Fund and Move to Amend – as well as in earlier books, most notably Unequal Protection: How Corporations Became ‘People’ and How You Can Fight Back by Thom Hartmann. That history spelled out that the shape of corporations was not like water, but more like bedrock – strictly defined by We the People through elected representatives by separate corporate charters and later general incorporation acts. Sovereign people were in charge of their legal creations with corporations only possessing privileges, not inalienable rights.
Not as helpful for people wanting to understand this complex topic and interested in taking meaningful action for fundamental change is Winkler’s lack of clarity in some of the articles about his book over the term “corporate personhood.” “Corporate personhood” and “corporate constitutional rights” are not the same.
Legal personhood for incorporated entities (i.e. corporate personhood) are legal rights established by governmental laws — known as statutory rights. The legal capacity or legal “personality” of corporation includes the ability to make contracts and other obligations, hold property, sue to enforce their rights and be sued for breach of duty.
Constitutional rights, including the Bill of Rights, were originally intended solely for human beings — albeit, at first, only to white, male, property owners. Constitutional rights were never intended to apply to corporate entities. The word “corporation” is not mentioned anywhere in the Constitution. Corporate constitutional rights have been granted exclusively by the unelected body of the Supreme Court. No public official or voter has ever had the authority to grant corporate entities inalienable constitutional rights.
The growing grassroots movement to end corporate constitutional rights, facilitated by Move to Amend, and proposed by its We the People Amendment – declaring that only human beings possess inalienable constitutional rights and that money in political elections, which is not equivalent to First Amendment free speech, can be legislatively regulated — doesn’t advocate to end corporate personhood, only corporate constitutional rights. Corporate personhood and corporate constitutional rights are not interchangeable, at least not in the law. Mixing the two only produces confusion, which leads to inaction, which we as people under expanding corporate assaults and plunders cannot afford at a time when fundamental democratic change is urgent.
The repeated fears expressed by Winkler and others that ending corporate rights would result in random government seizure of property or censorship of the media doesn’t square with the law or reality and, again, confuses corporate personhood and constitutional rights. A corporation as an entity representing the collective individual constitutional rights of its shareholders to defend their property rights would not change with the abolition of the corporation’s constitutional rights. The landmark New York Times v. Sullivan case upholding freedom of the press made no mention of the newspaper’s corporate form – what shielded the Times was the First Amendment’s “freedom of the press” not corporate constitutional rights. And why do we never, ever hear of such grave injustices toward corporations in other western “democracies” – countries with statutory protections of corporations (i.e. personhood) but apparently none of which have anointed corporations with inalienable constitutional rights? How many “corporate persons” have we seen on life rafts flocking to U.S. shores to escape the carnage of corporate “death penalties” and other miseries to the corporate life and limb?
Winkler makes an important point that the Supreme Court decreasingly considers corporations as their own legal person in constitutional cases. The Citizen United v. FEC ruling, for example, which expanded the ability of corporate entities to donate (or invest) in elections wasn’t based on the “corporations are people” premise, but rather on two arguments. First, limiting corporate political speech was a violation not because the organization Citizens United was a corporate person, but because limiting its corporate speech violated “listeners’ rights.” The person, not the government, had “the right and privilege to determine for itself what speech and speakers are worthy of consideration,” stated Justice Kennedy in his majority opinion. Second, limiting Citizens United’s political speech was actually a limit on collective individual speech since the corporation is merely a type of voluntary association of people, specifically shareholders. It’s not just individuals who have constitutional rights, so the argument goes, but individuals in their associated form who come together for mutual purposes.
While the Court has a long history of concocting fantastic pretzel-like legal contortions to justify widening the power and rights of the few and privileged and denying the rights of those historically oppressed (i.e. justifying women as subordinate to men, slaves as property, holding up Jim Crow segregation for sixty years, etc.), it’s nevertheless critical to understand and strategically counter the latest defenses to corporate concentrated power.
A person has no more the inalienable right to “listen” as (s)he has the rights to speak at will, for as long as (s)he may want for hours on end before, say, a city council meeting – including being prohibited from speaking at all if the message isn’t germane or the person may live outside the community. Reasonable limits are legitimate and the rule (e.g., usually a five minute maximum testimony at council meetings). Curious that nowhere in the Citizens United ruling was referenced rights to be heard from individuals whose voices are drowned out since they aren’t wealthy or don’t own a corporation. These rights are completely absent from the equation when calculating corporate free speech.
When it comes to corporations as nothing more than an association of persons, it’s back to the “shape of water” argument. When it’s convenient for a corporation to be separate from its shareholders to avoid being personally liable for a corporate malfeasance, then there’s zero connection, but when it’s convenient for the corporation to shield itself behind its human employees, shareholders, etc., then it’s nothing more than that — a mask to shirk responsibility. Corporate agents can’t have it both ways.
For those of us dedicated to opening up the democracy space that corporations have forever been trying to close, it’s necessary that any final proposed constitutional amendment addressing corporate rule close these loopholes.
Winkler has stated, “[t]he question is not whether corporations should have rights but which rights corporations should have. Today’s steady expansion of corporate rights is a product of giving corporations the same rights as their members. Instead, we should treat corporations as separate legal persons — with only those rights appropriate for corporations.” He’s correct. The corporate rights or protections that corporations should possess should be statutory. Inalienable rights belong alone to human beings.
Corporations have been playacting as “persons” in too many ways for too long – well deserving its own separate academy award for the category of “Worse Stand in for a Human Being.” Yet the Oscar it deserves is no more a legal person than Oscar Meyer (the corporation). Both are objects created by human beings to presumably serve some useful purpose (though maybe questionable given the ingredients in many hot dogs). It’s time that we clearly affirm that unalienable constitutional rights must be reserved exclusively for human beings, not for a hot dog or any corporation– no matter how much they may dramatically act like one.
The legal profession — too many Supreme Court Justices, almost all corporate attorneys and more than a few constitutional law professors — has been the directors and producers of this frightful show. With straight faces they have expanded or argued for corporate rights over human rights and the right to thrive in a livable world.
We cannot be intimidated or confused. While not lawyers or jurists, the vast majority of people in this country have PhDs on being on the short end of one assault or another by wealthy corporations. Permitting such assaults to people, communities and the planet – be they defended by corporate constitutional rights, listener’s rights or any other concocted bogus legal constructs — is the ultimate theatrical fantasy that has been a real life disaster that only an independent, diverse and fearless democracy movement will end.