hearts and minds

July 25, 2012

Does a Corporation have Constitutional Rights? (Part 1 of 2) A Corporation is a Party, not a Person, under the U.S. Constitution

Is there any truth in the legal theory that a corporation possesses, by authority of the U.S. Constitution, any of the inalienable rights of a person?  In Part 1 we examine a single important sentence in Article IV Section 2 of the Constitution, which helps us answer that essential question.  [Part 2 –  a Corporation Does Not Count as a Person, under the U.S. Constitution - examines another essential argument, based on the 14th Amendment and on the third paragraph in Article I section 2 of the Constitution itself. Corporations v. Persons - the Struggle that will Define the 21st Century, posted May, 2011, and a preceding draft, posted in April 2011, places these two arguments in historical context.]

The last sentence of Article IV Section 2 of the U.S. Constitution states:  “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.”

This sentence defined a particular Constitutional “right” that was possessed by a ‘Party’.  The founders and framers of the Constitution owned slaves outright, or were shareholders in companies and financial institutions that owned slaves, and they profited from slavery.  Being fully aware that a slave owner was not always a ‘Person’, and in compliance with the insistent demands of slave owners, they selected the word ‘Party’, which encompassed all slave owners, including shipping firms, trading companies, mills, factories, plantations, financial institutions, insurance companies, subdivisions of government, educational institutions, churches, etc.

As can anyone, then or today, the Founders recognized that a ‘Party’ might be a ‘Person’, but that a ‘Party’ is not necessarily a ‘Person’.  A ‘Party’ might well be some other legal entity – such as a chartered company (later to be known as a corporation).  For centuries, huge, powerful trading companies owned, for at least part of their lives, virtually every slave brought here in chains from Africa.   Through four long centuries, chartered companies (called ‘corporations’ since the early 1800s) bought, sold, and worked to death, a great many of these ‘Persons’ who were not ‘free Persons’, but ‘Persons’ nonetheless.  The Founders, who deliberated, negotiated, compromised, wrote, and then ratified the Constitution, recognized that a ‘Person’ who is not free might be enslaved by another ‘Person’, or that a ‘Person’ who is not free might be enslaved by some other legal entity that is not a ‘Person’ at all.  So instead of using the word ‘Person’, they very carefully selected the common, encompassing legal term, ‘Party’, when they referred to the slave-holding legal entity with the special Constitutional privilege that this sentence bestowed upon it.

If the Founders had meant or intended companies to be the Constitutional equivalent of a ‘Person’, the Founders would not have needed to refer in this sentence to a ‘Party’.  Instead (and consistent with the entire rest of the Constitution) the Founders would have simply written that the escaped “… Person held to service or labor … shall be delivered up on claim of the PERSON to whom such service or labor may be due”.  But those who wrote and ratified the Constitution decided to precisely assign this right – and only this right! – to a ‘Party’, rather than simply and only to a ‘Person’. Thus the actual, original text of the U.S. Constitution explicitly recognized that a ‘Party’ is distinct and different from a ‘Person’, and in this particular sentence, the Constitution assigned the one and only right that the Constitution has ever assigned to a ‘Party’, which is a legal entity that might be – or might not be – a ‘Person’.

This sentence in Art.IV Sect.2 of the U.S. Constitution establishes explicitly that a legal entity known as a ‘Party’ (i.e. a corporation or a ‘Person’), had one very peculiar Constitutional right – the right to demand and expect the summary capture and return of a ‘Person’ alleged by that ‘Party’ to be a slave who had escaped to a state that outlawed slavery.  However, other than this one, most exceptional, Constitutionally defined ‘right’, the Founders clearly left it to the Congress and the states, and to the people, to define, regulate, proscribe, and describe the privileges, responsibilities, and limits – even the very existence – of legal entities that are not ‘Persons’.

Most importantly (for us in the 21st Century) this sentence establishes clearly that the U.S. Constitution has always had a word for an entity such as a corporation. That word is ‘Party’. That word is not ‘Person’.  The Constitution has never bestowed on a corporation (or a ‘chartered company’, if you prefer) the rights that it explicitly recognized as belonging to a ‘Person’ or to ‘the People’.  It is exquisitely ironic that, due to the insistent demands of 18th century slave owning ‘Parties’, and the consequent horrific suffering and exploitation of the ‘Persons’ held enslaved, today we can cite this redundant but compelling, and apparently now necessary evidence that according to the Constitution itself, a Corporation is NOT a Person.

The Founders did NOT write, “… the right of a Party to keep and bear arms shall not be infringed”.  The Founders did NOT inscribe “… nor shall any Party … be compelled in any criminal case to be a witness against itself, nor be deprived of life, liberty, or property, without due process of law”.  They did not declare, “The House of Representatives shall be … chosen … by the Parties of the several States”.  These are the rights of a person, of any person, the rights of the people.  ‘Person’ is what they wrote, and ‘Person’ is what they meant – not ‘Party’, not ‘corporation’.

The U.S. Constitution itself, establishes beyond doubt that the rights explicitly recognized by the Constitution as the inherent rights of a ‘Person’, the inalienable rights of ‘the People’ are the rights of living, breathing human beings. The U.S. Constitution explicitly recognizes that a ‘Party’ is not the same as a ‘Person’, and establishes, beyond rational challenge, that a corporation is a ‘Party’, not a ‘Person’.

The Constitution was and is imperfect, but it is, and always has been, absurd and clearly incorrect to assert that the Constitution itself does not consider slaves (and women and indentured servants and children) to be ‘Persons’, but that it does consider a corporation to be a ‘Person’. The text of the Constitution itself proves this beyond a doubt.

In the U.S. Constitution, with amendments, the word “person” is used 49 times, the word “people” is used 9 times … and the words “corporation” or “company” are not used at all. The word “Party” is used in three places, in the entire Constitution – in the Article IV Section 2 sentence quoted above, once in Article III Section 2, and once in the 13th Amendment. Clearly, the word “Party” (as used in the U.S. Constitution) could refer to a person, or to a legal entity created by the people, such as the U.S. government, or a chartered company (corporation). The use of the word “Party” (in a sentence which importantly also uses the word “Person”!) lets us nail down the Constitutional definition of the word “Person”, and makes crystal clear whether the U.S. Constitution ever considered anything other than a living human being to be a “Person”.

This argument has never been officially considered by the U.S. Supreme Court partly because no Constitutional issues were decided or ruled upon by the Supreme Court in the 1886 case when a preface written by a court clerk laid the unsupportable cornerstone for subsequent corporate law in America with his fraudulent assertion, fabricated to fulfill the wildest fantasy of an anti-democracy corporate lawyer, top executive, or major owner, that “… corporations are persons within the intent … of the 14th Amendment …”.  That outrageous assertion later became the shaky foundation for a subsequent judicial coup d’etat, the devastating consequences of which are being increasingly impressed on the people, but are still not commonly understood, or effectively disposed of by us.
[See our 14th Amendment argument: Part 2 - a Corporation does not count as a Person]
Parts 1 and 2 provide an airtight, never before employed argument, based on the Constitution itself, which clearly disproves (such that everyday people, or even an honest legal scholar, can see) the absurd, unjustifiable legal theory that a corporation is a person under the Constitution. But an airtight, clear proof will not, by itself, do more than help us solve our problem and correct the gross injustice and the grotesque distortion of our Constitution that has so long existed, and continues expanding to overwhelm and abrogate human rights and democracy.  Too much corporate power has been accumulated, consolidated, and unleashed for that to happen without a massive, difficult, possibly protracted, but absolutely necessary struggle.

However, we must not continue to ignore and neglect an important tool and its potential application just because the tool was found in the 21st century by a nobody in the middle of nowhere, instead of being presented to us on a silver platter by a suitably credentialed and anointed robed Oracle, and just because using the tool effectively will most certainly not, in itself, be all that is needed for the people to prevail in this struggle.

Part 2 – based on the 14th Amendment and on Article I, Section 2. (para. 3)
“A Corporation Does Not Count as a Person, under the U.S. Constitution”

“Corporations v. Persons – the Struggle that will Define the 21st Century”

The original draft of this two part argument, first posted in April, 2011

Other essays spotlighting this problem and its terrible consequences for democracy, human rights, and our future.

Proposed Constitutional Amendment to establish beyond doubt that a corporation is not a person in the meaning of the U.S. Constitution, that money is not equivalent to speech in the meaning of the First Amendment, and to explicitly protect in the Constitution, important rights of the people.

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