hearts and minds

April 1, 2011

The Difference Between a “Person” and a “Party”

My ol’ huntin’ partners, Sid D. Complex and Jesse B. Simple, and I were enjoying a couple beers together this Spring. Jess had just boggled my mind with one of his astute observations on the human condition. So I was trying to appear calm, and in full possession of my faculties while feeling more than usually uncertain and unbalanced.

Sid handled the silence that followed by deftly changing the subject. ‘Know what?’ inquired Sid. ‘The word “Person(s)” appears in the U.S. Constitution 22 times. And that same word pops up 27 times in the Constitutional Amendments (which averages once per Amendment). I know because I counted. But, the word “corporation(s)” doesn’t appear even once in the U.S. Constitution or in any Amendment. What the hell is all this noise about the Supreme Court declaring that a corporation is a person? That’s just plain nuts. A corporation doesn’t bleed, it can’t have kids, a corporation ain’t a person, anybody knows that.’

Smart-as-a-whip Jess came right back, without even pausing to take a deep breath or whet his whistle.
—————————

– ABSTRACT –

The U.S. Constitution (and specifically Article IV section 2 of the Constitution and sections 1 and 2 of the 14th Amendment) are examined to shed light on a legal theory and supreme Court actions, which hold that a corporation is a “Person”, and therefore possess specific rights under the Constitution. Common usage and understanding, as well as the demonstrated intent of those who framed or ratified the Constitution or its Amendments are considered. Primarily, however, the document itself is employed to establish that corporations cannot be shown to be “Persons” under the Constitution, nor to possess any of the Constitutional rights granted to “persons”. A certain Constitutional right that was originally intended for corporations was extinguished by later ratification of an Amendment.

The 14th Amendment (with Congressional authority as provided in section 5) is shown to have substantially failed in accomplishing the clear intent of extending important rights to real persons, at the same time that this Amendment has been erroneously employed (by egregious actions of the supreme Court) to extend unprecedented rights to corporations that were neither intended nor justifiable.

Remedies for the resulting injustices and defects in law and the political system are suggested.

References:

The authentic Constitution of the United States of America, and Amendments

Santa Clara County v. Southern Pacific RR Corporation 1886
(Corporations are “persons” under the meaning of the 14th Amendment!
Note: This momentous declaration was included in the published preface to this case (authored after the fact by a Court clerk who happened to be a railroad company CEO), but the Supreme Court members explicitly did NOT decide this case on ANY Constitutional grounds.  The notion that a corporation is a person under the U.S. Constitution has become the cornerstone principle of corporate law and has resulted in unrestrained corporate power. But that notion, and the supposed precedent established in this case is an unmitigated fraud.)

Buckley v. Valeo 1976
(Distribution of money is equivalent to speech, and thus protected under the First Amendment!)

First Nat’l Bank of Boston v. Bellotti 1978
(Corporations have First Amendment rights!)

Citizens United Incorporated v. Federal Elections Commission 2010
(Corporations can employ unlimited resources to influence elections, political parties, and legislation!)

[Note that all quotation marks in the following essay enclose words that are directly excerpted from the U.S. Constitution and Amendments. It may help to have your copy close at hand while reading this.]

———————————–
[sorry for the interruption. the story continues below.]

‘First, it’s important to note something that most everybody these days has never once considered, or are even aware of’, continued Jess. ‘Now listen up. In Article IV, Section 2 of the Constitution, the Founding Fathers included one single pregnant sentence that employs both the word “Person” and also the word “Party”. To answer your question, Sid, we’ve got to carefully examine that single sentence and that important distinction.’

Sid got up to head for the door, but decided to lighten up the beer cooler instead.

‘At the time the U.S. Constitution was adopted’, said Jess without skippin a beat, ‘a “Person” could actually be legally owned property (a slave), or legally obliged to live, conduct him or herself, and toil exactly as ordered by a particular employer for a defined period of years (an indentured servant). (Some people might think that an indentured servant was, in effect, a slave, for that period of years. But the difference between a slave and an indentured servant in North America went far beyond the difference between the duration of forced servitude. For just one example, it was perfectly legal for a slave to be assaulted, raped, tortured, or killed in any fashion, at any time, for any reason or no reason, by the slave owner, or with the owner’s approval.) Now the Founders established in a single sentence in Article IV section 2 of the Constitution the right (regardless “of any Law or Regulation” to the contrary) of the owner of a slave (or employer of an indentured servant) to have that “Person” be “delivered up on Claim” to the legal owner/employer, even across state lines, should that “Person” happen to have escaped.

‘The reason I am drawing this section of this particular Article of the U.S. Constitution to your attention is that in this sentence, the slave or indentured servant was designated as a “Person”, but the owner or employer was designated as a “Party”. The choice of the word “Party” at this point makes perversely good sense. An owner or an employer could be a person – or it could be some other legal entity – such as a corporation, or a unit of government, for example. You didn’t have to be a “Person” in order to have a financial interest in having an escaped slave that you owned be returned to you from anywhere in the United States or territories. George and Tom and Alex and Ben and Charley and the rest of the Founders undoubtedly considered a chartered company to be a “Party” and not a “Person” when they devised the Constitution and Article IV. And since they decided to grant the right defined in Article IV section 2 to such a company which happened to own slaves, as well as to a person who owned slaves, they quite sensibly and precisely used the word “Party” there, instead of “Person”, when referring to the “Party to whom such Service or Labor may be due.”

‘The Constitution says “Person” when it means “Person”, and it says “Party” when it means “Party”. See, a person can be a “Party”, but a “Party” is not necessarily a “Person”. Only a person can be a “Person”. Get it? Like you and everybody with an ounce of sense knows, now or three hundred years ago, you gotta be a living, breathing human being to be a “Person”. I’m getting a little ahead of myself here, but it’s not a “Party” that has Second or Fourth or Fifth Amendment rights, and it’s not a “Party” that qualifies to be a Representative in Congress. And likewise for all 49 places in the Constitution where the word “Person(s)” is specifically employed’

Sid cracked open a cold one. ‘Gimme one too’, I pleaded, with success. The story was getting interesting. Sid returned to the chair he had been occupying.

‘The Founders did NOT say that the escaped “Person … shall be delivered up on Claim” of the Person to whom service or labor was due’, Jess stressed. ‘The Founders said that the escaped “Person … shall be delivered up on Claim of the Party to whom such Service or Labor may be due.” The Founders did this to preserve these very special (and very strange!) rights for ANY owner of a “Person”. They specifically did not preserve ONLY the right of a “Person” who owned slaves. They carefully preserved the right of any “Party” that owned slaves. And they did that simply because a “Party” that owned slaves (or the services of an indentured servant) often was a corporation. If they had used the word “Person” instead of “Party”, some smart-ass Abolitionist lawyer would have been able to challenge in court a corporation seeking return of its escaped slave by simply pointing out that a corporation does not have the rights of a person, under the Constitution. They used the word, “Party” instead of “Person” in order to close a huge loophole. I guess they woulda been pretty stupid to have missed that one.

‘The Founding Fathers, in Article IV section 2 clearly and unmistakably distinguished between a “Person” – which they quite reasonably perceived (throughout the Constitution and even all subsequent Amendments) as a living breathing human being – a human being who might commit treason or felony (on one hand) or run for President (Art. II sect. 1) or Senator (Art. I sect. 3) on the other hand, or become a “Citizen” (Amendment XIV section 1), or be an escaped slave (on still another hand) – and a “Party” (which might be a person, or which might not be a person at all, but instead be a corporation) that held legal ownership over an enslaved “Person”. And in the very same sentence, the Founders defined the Constitutional rights of a “Party” that was “due” the “Service or Labor” of such an enslaved “Person”. There’s a big difference between a “Party” (which, in the Constitution, is a legal entity, such as a real, live person or a corporation) and a “Person” (which can only be a living, breathing, mortal human being).

‘The corrupted and incompetent supreme Court was dead wrong in 1886 and the five out of nine majority was dead wrong again in 2010. “Persons” have numerous Constitutional rights. But under the Constitution, a corporation is (if it is anything at all) a “Party”, not a “Person”. And the Constitutional rights of a “Party” are fully and clearly defined in Article IV section 2, and nowhere else.

‘The catch is, of course, that Article IV section 2 was effectively repealed almost a century later by the ratification of the 13th Amendment to the Constitution, which abolished slavery in the USA. So it is now a moot point whether the Founding Fathers, in Art. IV sect. 2, did in fact provide Constitutional rights to corporations. Maybe you guys don’t think so, but actually, I think they did. Far as I can tell, the Constitutional rights of a corporation were very real, and were explicitly defined in Article IV section 2 – and nowhere else. Regardless of that, the abolition of slavery by the 13th Constitutional Amendment a century later, ended the Constitutional rights of corporations (or of any other “Party”) to have their escaped slaves “delivered up” to them, to do with as they pleased. Article IV section 2 of the Constitution, together with the universal usage and meaning of the word “Person”, clearly establishes that the Founding Fathers never intended to bestow on corporations the rights that are guaranteed to “Persons” by the Constitution. Although persons working for corporations have rights, and persons who own stock in corporations have rights, and persons who are directors of corporations have rights, corporations themselves – corporations, per se – have no (remaining) Constitutional rights whatsoever, since the ratification of the 13th Amendment abolished slavery in the USA.

‘The 14th Amendment, section 1, proves this point again, when it defines “citizens of the United States and of the State wherein they reside” as “persons born or naturalized in the United States …”. Now no one has ever even tried to let a corporation vote as a “citizen”, for example. Corporations cannot become “citizens”, and never have been citizens, simply because they are not “persons” – whether or not they were “born” in some non-biological sense (like an idea or a song is “born”) in the United States. Just as you said, Sid, a corporation is no more a “person” than a song, or a mathematical theorem, or a political action committee, is a “person”.

‘Section 2 of the 14th Amendment clearly states that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state …” No one has ever even tried to count corporations as “persons” (in addition to real, live, human-being persons) in order to apportion our Representatives in Congress – because corporations are not and never have been “persons”. Section 2 doesn’t say to subtract the number of corporations from the total number of “persons” in order to apportion Representatives because no sane, rational person, then or now, had the silly idea that a corporation was a “person”. Now I ask you, isn’t this obvious and plainly true to anyone with a functioning brain who thinks about it? – Anyone, that is, other than the five knuckleheads among our current nine supreme Court Judges who in 2010 ruled to the contrary.

‘Those two sentences in section 1 and section 2 of the 14th Amendment make crystal clear, to all but the most hopelessly deranged, that a corporation is not a “person”.

‘Bracketed directly between those two sentences in the 14th Amendment that I just told you about is the most important sentence of the 14th Amendment. That’s the one that was intended to require that each and every individual state that was part of the United States, be forbidden to “… 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.” In 1787 and 1791, the Founders had established, right in the Constitution and in the Bill of Rights, the requirement that the federal government not violate these basic human rights. But the 14th Amendment, ratified in 1868, explicitly required, for the first time, that each of the states was also forbidden to deprive any person of these most basic human rights.’

[Footnote, added here by the scrivener: It’s mighty interesting that the 14th Amendment was bitterly resisted by more than one “Party” on the specious grounds that the precious human rights it enshrined for all of us in the Constitution, trespassed somehow upon something called ‘states rights’. The motivating intent of the 14th (and the 15th) Amendments was to protect the newly acquired basic human and civil rights of “persons” who had long been held in slavery, after slavery was abolished by the 13th Amendment. But section 1 of the 14th Amendment extended extremely important new human rights protections to ALL of us “persons”, regardless of our color, age, or sex. The abuse, misuse, and grotesque distortion of the 14th Amendment is the height of irony, and one of the greatest historical injustices that has ever occurred. And the aberration and travesty continues to this day, and will continue until we, the people, put a stop to it. The basic, essential human rights protections described by section 1 of the 14th Amendment were virtually unenforced until the (what should have been unnecessary) 19th Amendment explicitly and redundantly mandated the right of women to vote more than fifty years later, and the landmark Civil Rights Law and Voting Rights Law were finally enacted a full century later. On the other hand, the sandwiched sentence in the 14th Amendment about basic rights of “persons”, that was just discussed by Jess, was almost immediately seized upon by corporatists and falsely and without justification, employed to begin to assert that corporations have all the constitutional rights that in fact belong fully and only to real, live human beings. This led directly and immediately to the obscenities of the Gilded Age and the tragedy of the Great Depression. In recent decades, even greater reliance on, and extension of the legal hoax that a corporation is a Constitutional “person” has culminated in a continuing series of the largest and escalating financial frauds that have ever occurred in the world, with no imprisonment of the looters at the top, no recovery of the massive loot, and no regulations or enforcement to effectively prevent it from happening to us again and again. The people are currently without protection from unbridled corporate power.]

‘It’s pretty clear to me’, continued Jess, ‘that the Founding Fathers agreed that (with the highly interesting exception of that one sentence in Article IV section 2) the Constitution, with the Bill of Rights, was s’posed to outline the basic rights of “Persons” (and “Citizens”) and the structure and function of the federal government – while federal and state and local laws were left to define and circumscribe legal entities such as corporations. Now the famed Founding Fathers didn’t explicitly define in the Constitution words they used that were in common, everyday public use, whose meaning was universally understood – words like “Person”. But we oughta recognize that in none of those 49 places in the Constitution and Amendments that you told us about, Sid, is that word used in a way that implies that a “person” is anything other than a living, breathing human being. And in most of those 49 places, the word “person(s)” is, without question, referring to nothin’ but a living, breathing human being.

‘So’ declared Jess with finality, ‘it’s clear as a Liberty Bell that the Founders and the framers and ratifiers of the Constitution and of all of the existing Amendments, including the crucial 14th Amendment, never intended that corporations were to be considered as “persons”, or that a corporation should possess the same constitutional rights as a “Person”.’

With that, Jess stopped talking, raised and tipped his bottle, and the contents disappeared down the hatch. Sid released a thoughtful and resounding belch. I fell off my chair. And nobody noticed.

Here’s more illumination on this pretty damn important subject:

Citizens United v. Federal Elections Commission – the Supreme Court Strikes Out
https://clydewinter.wordpress.com/2010/02/01/citizens-united-v-federal-elections-commission/
Governing People For Profits
https://clydewinter.wordpress.com/2009/11/11/governing-people-for-profits/
Paying for Elections – Low Cost and Up-Front or High Cost and Under-the-Table
https://clydewinter.wordpress.com/2008/01/02/pay-for-elections-low-cost-and-up-front-or-high-cost-and-under-the-table/
How Wisconsin Legislators Voted on Ending Legalized Bribery
https://clydewinter.wordpress.com/2008/06/05/how-wisconsin-legislators-voted-on-ending-legalized-bribery/

Join the struggle to win democracy and get government that is of, by, and for the people – not the corporations

Wisconsin Democracy Campaign – sign the petition.
http://www.wisdc.org/

Move to Amend
http://movetoamend.org/

Public Citizen
http://democracyisforpeople.org/

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6 Comments »

  1. It sounds like you’d be interested in Milwaukee Move To Amend, so here’s some information on our next meeting, at the end of my e-mail.
    Our aim is to get a resolution on the Milwaukee ballot stating that corporations are not people and money is not speech, all working toward a national Constitutional Convention and a federal constitutional amendment along the same order. We are approaching the problem from a grassroots perspective because we think we have more of a chance that the legislators will respond to this. We will be going door to door to educate and collect signatures.
    This is all in response to the Jan. 21, 2010 Citizens United decision that unequivocally made corporations people and money speech.We probably wouldn’t have this governor or so much influence by the Koch brothers if it weren’t for this decision.

    MOVE TO AMEND!
    The US Constitution
    CORPORATIONS AREN’T PEOPLE.
    FIGHT THE CITIZENS UNITED DECISION!
    Citizens United Jan. 2010 was a Supreme Court decision that stated corporations can spend unlimited money on political campaigns, and that corporations are people, and money is speech! Even our President is affected. FIGHT BACK! This is the ROOT of our problems.

    A couple of excellent websites are Move to Amend and Public Citizen. If you want to read a very good book on this subject, try Thom Hartmann’s Unequal Protection. Available at Amazon.

    4th Meeting

    April 18th
    Monday
    6:30 P.M.
    Downtown Public Library
    On north side of Wisconsin Ave between 8th & 9th Sts.
    Meeting Room 1.

    SPONSORED BY WILPF
    (WOMEN’S INTERNATIONAL LEAGUE FOR PEACE & FREEDOM!)

    Bring your ideas and opinions

    Comment by Mary L — April 3, 2011 @ 5:33 pm | Reply

    • Thank you, Mary, for a most constructive comment.
      I have researched and written four articles focusing exclusively on this very subject over the last five years (see category: Constitutional law), and also many other articles which examine problems and solutions that wouldn’t be necessary if the U.S. Supremes had not concocted that absurd, outrageous daffynition that “a corporation is a person”. I hope those articles are useful to Move to Amend and allies fighting for real correction of this oppressive injustice.

      Comment by clydewinter — April 3, 2011 @ 6:06 pm | Reply

  2. Someone posted a link to this post on facebook. Thank you! After browsing my way through your blog today, I have to tell you it makes me very happy to see a voice of reason in the middle of the country speaking up.

    Being on the East Coast, it often seems as though the middle of the country has lost it’s collective mind. Maintaining the stance that “middle America” is not some amorphous blob of one mind, and collectively losing it… while being pounded via the media only with the voices of those who do appear to have “lost it” and are making much noise can be difficult at times, to say the least. To be thinking “it simply cannot be that middle-America has collectively lost all sense of sanity and reason. There MUST be some sanity there” and then repeatedly only hear the voices of those who do seem to have actually lost all sense and reason can be disheartening to say the least.

    But here you are, a voice of intelligence and sanity. Your blog has made my day. If it’s alright with you, I would love to add you to my blogroll.

    Comment by placidair — April 15, 2011 @ 12:23 pm | Reply

    • Thank you for the compliment, and of course you may list my blog on your blogroll.

      At least part of your perception of the “middle of the country” is, sadly, shared by many who actually live here. Typically, an aspiring and more than competent artist or writer sooner or later realizes that she/he must leave middle-America to achieve status and recognition (and an income) precisely because (1) the unassuming inhabitants of “fly-over states” maintain a very low glass ceiling over the creative gifts and aspirations of talented artists emerging from their own ranks, and (2) the coastal sophisticates expect homage paid in full and in person before they will anoint an artist from the provinces. In the Midwest, you have to be famous somewhere else before your value will be recognized here. In the distant cultural palaces, you have to come, hang out, and suck up for a while, in order to survive and maybe prosper.

      You are certainly right that this one-two repression of the spirit of creativity (which is also the spirit of significant reform and revolution), as well as the shared perception and buttressing of the collectively muddled mind, is massively reinforced by the corporate media.

      But perhaps those of you inhabiting the swanky salt sea coasts are also reflexively afflicted with a complementary malady. For one example, consider the coverage, in both the news and the op-ed columns, by the famed, most powerful, most highly regarded journalists and newspapers on both coasts, during the many months preceding the invasion of Iraq more than eight years ago. In September of 2002, I wrote an article “The Madness Must End“, months before the Members of Congress (of both major parties) voted overwhelmingly for the authorization sought by President G.W. Bush. That article was published in one of two small local newspapers circulated in this (strongly majority) right-wing fundamentalist Republican middle-American county. It was only the third article of mine that had ever been published. It appeared at the very instant that the New York Times and the Wall Street Journal and other coastal media giants and their highly compensated “journalists” and editors were posting articles in pathetic lockstep with the inexorable drumbeat of propaganda and in tune with the deadly cacophony of lies being disseminated daily by the Administration. The written and emailed comments to our local newspaper from readers when my article appeared were eighty percent (80%!) favorable, approving comments.

      https://clydewinter.wordpress.com/2006/08/05/the-madness-must-end/

      In the United States of America, and in these ominous opening years of the Third Millennium C.E., who among us can, with any degree of justification, claim that some other entire region of the country appears to have “lost its collective mind”, while maintaining a certainty that our very own region has not “lost all sense of sanity and reason”?

      I think that it is more valuable, as well as essential, that we all think carefully (and comment on) the substantive issue and argument presented by another (especially if it is carefully researched and considered) rather than merely scan to determine if the other agrees, superficially, with our own point-of-view, and then comment, superficially and emotionally, on no more than the simple conclusion that we agreed or disagreed. It is both more difficult, and far more valuable, to discern failures of our own, and of our own familiar immediate culture, than it is to discern apparent failures of “the other”, and those in the distance.

      P.S. I was paid 25 dollars for my regular newspaper column. That didn’t even pay my meager out-of-pocket expenses in writing and submitting it. My column was canceled in 2008 because of a series I was writing examining the Wisconsin legislature, and spotlighting the elected legislators representing this particular region of the state. I still have not joined Facebook. Maybe that’s why my writing for the cause remains virtually invisible and unknown, not only nationally and in Wisconsin, but even in so-called “progressive” circles and media, and here in this particular local region I have referred to as, “the halo of hubris and privilege – the belly of the beast”. Or maybe it’s due to how I write.

      Comment by clydewinter — April 17, 2011 @ 12:51 pm | Reply

  3. Hi, I like your blog, I have BKH and Scottish Fold, just look at my homepage. Best regards from Lower Saxony (Germany)

    Comment by Kitten and Cats — May 9, 2011 @ 10:32 am | Reply

  4. […] The original draft of this two-part essay, first posted in April, 2011 […]

    Pingback by Does a Corporation have Constitutional Rights? (Part 1 of 2) A Corporation is a Party, NOT A Person, under the U.S. Constitution | hearts and minds — April 15, 2013 @ 9:00 am | Reply


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