Have you ever wondered what possessed members of the supreme Court to determine that a corporation is a “person”, according to the Constitution? Which passages in the U.S. Constitution (including Amendments) could certain supreme Court Judges have construed to support their determination (in contrast to common understanding and general usage) that a corporation possesses the rights that are explicitly defined for a “person” in the Constitution? Having researched and written about the consequences of this determination several times over the last decade, I became interested and finally compelled to get to this root of the problem. And so I once again studied the Constitution and its Amendments. But this time, I searched in particular for an answer to the question of how in the world anyone can conclude that a corporation possesses the specific Constitutional rights that are described there as belonging to a “person”.
I began by locating and highlighting certain words in the text (such as “corporation”, “company”, “person[s]”, “citizen[s]”, and “people”). Then I studied the context in which those words appear. My search was productive, with results that were startling, informative, and actually simple to comprehend and to share with you. https://clydewinter.wordpress.com/2015/11/19/666-word-proof-that-a-corporation-is-not-a-person/
The word “Person[s]” appears exactly 49 times in the Constitution with Amendments. The fact that the words “corporation” (or “company”) do not appear even once, is not, by itself, deciding evidence, pro or con, regarding the theory that a corporation possesses Constitutional rights. But the omission of any mention of “Corporation” or “Company” in the Constitution is certainly worthy of note. And also noteworthy is the complete absence of any indication in the U.S. Constitution, implicit or explicit, that the word “Person[s]” might mean anything other than simply a living, breathing human being, as the word was commonly and universally understood and used, both then and now. All 49 times that the word “Person[s]” is used in the Constitution are helpful to understanding how those who framed and ratified it understood and employed that word, and how it has been subsequently understood and applied. However, I will focus this essay on just two places that the word “Person” appears that are of critical and deciding importance to this question. I will quote these sentences and refer you to the location in the Constitution where they appear. Considering the key role of this matter in the clear and present danger to representative democracy and to the principle that government should be of, by, and for the people, which we are presently facing in the United States, I urge you to get your copy of the Constitution in hand, so that you can see for yourself the entire context in which these two sentences appear, and evaluate for yourself the argument I will make.
Large numbers of Americans believe that the Founding Fathers intended to provide Constitutional rights only to real, live human beings – NOT to corporations. I do not quite agree. Evidence exists that the framers DID concur in providing a particular Constitutional right to companies/corporations. Our question thus becomes a two-part question. Precisely, (a) “What right(s), if any, were spelled out in the Constitution for corporations?” and (b) “Is a corporation legitimately a ‘person’ in the meaning of the Constitution?” There are just two key citations in the Constitution that are importantly relevant in answering these two questions. Here they are:
The third (and concluding) sentence of Article IV Section 2 is the first key citation bearing directly on whether a corporation holds any rights and/or is a “Person”, under the U.S. Constitution. Article IV addresses relations between the states, relations between the United States and the individual states, and the privileges and immunities of citizens in the 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.”
Article IV Section 2, U.S. Constitution.
This historically embarrassing sentence, of course, was the explicit Constitutional justification for the notorious 19th century Fugitive Slave Laws. And this sentence that is now so important and useful to resolving the question of whether a corporation is a person, under the Constitution, was carefully and laboriously crafted to satisfy the demands of those delegates who were zealously seeking to enshrine in the Constitution itself, certain privileges and property rights of slave owners. It is the height of irony that this sentence should now surface to become our unassailable technical, legal argument in the defense of human rights and democracy, and in attacking the ephemeral, insubstantial premises employed by the direct ideological descendants of those who sought to rationalize and perpetuate slavery for the sake of their obscene wealth and privilege. Justice will prevail, and the arc of history does bend towards justice – so long as people of good will do the right thing.
The impact of this particular sentence was affected some four score years later with the ratification of the 13th Amendment, which abolished slavery in the United States. Nevertheless, this sentence is extremely critical to us today in deciding the question before us. This sentence, exactly as we see it today, was put in the Constitution by the original framers and ratifiers of the Constitution – the “Founders”. Bear in mind that the basic rules of Constitutional law and of common sense include (a) a word that is not explicitly defined in the Constitution [i.e. – “Person”] means what it means in common usage; (b) a word used several places in the Constitution [i.e. – “Person”] does not have different meanings in different places; and (c) two different words used in the same sentence [i.e. – “Person” and “Party”] are not interchangeable synonyms.
In Article IV, the “Person” who has fled one state and escaped into another is a living, breathing human being. Historically, only living human beings (indeed, many thousands of them) have been “delivered up” under Article IV Section 2 … while a corporation has never been “delivered up” under section 2. But the word of exceptional importance to us in this sentence is paradoxically not the word “Person”. We must focus our attention on the word “Party”, and on the Constitutional difference between a “Party” and a “Person” as made clear in this Article. This single sentence is one of only two places in the entire Constitution, including all the Amendments, where the word “Party” is employed. [The other place is in Article III section 2 where “the United States” is defined as a “Party” in a controversy.] It’s important to us in the 21st century because both the word “Party” and the word “Person” are used in this one Article IV Section 2 sentence. They can’t and don’t mean the same thing!
[The following brief comment does not directly pertain to the subject of my essay, but I cannot forbear from digressing and pointing out at this point that the right of due process is not provided by Article IV to the “Person” alleged by the “Party” to be an “escaping” person. The Constitution summarily provided that such a “Person … shall be delivered up” on nothing more than the “Claim of the Party” which asserts that “… service or labor may be due”. Hmmmm. All the boss-man has to do is point his finger at you and claim you owe him service or labor, and the Constitution says that your days of freedom are over, and you are to be “delivered up”, without even a day in court to determine whether the “Claim” is just or not. And make no mistake. That is exactly what actually happened, to alleged “escaped persons”, countless times, for many decades, in the United States, in exactly that way. And that sentence has never been explicitly repealed by Amendment or adjudicated by the Court from the Constitution. It’s still in there, and it just might be used in the future in regards to the fine print in a contract of some kind that a “Person” or “Persons” (or even their legal guardian!) might sign with a “Party”. But – let’s leave this brief digression and return now to the subject of this essay – whether a corporation is a “person” under the Constitution.]
What is a “Party”? A “Party” in Article IV is a legal entity to whom “such Service or Labor may be due”, and which may make a “Claim” that a “Person…escaping…shall be delivered up …” to it. The Founders did NOT say that the “Person…escaping…shall be delivered up on Claim” of the Person to whom service or labor was due. The Founders said that the “Person…escaping…shall be delivered up on Claim of the Party to whom such Service or Labor may be due.” Why did the Founders not simply use again their repeatedly used word “Person” instead of using the word “Party”? The answer is simply that a “Party” might not be a “Person”. A slave owner, for example, might be (and indeed often was) a business enterprise! Chartered companies traded, bought and sold, imprisoned, worked, and ‘disposed of’ slaves (as well as plantations, livestock, mills, factories, real estate, and other property) at will, for centuries in North America. The Founding Great White Fathers, in agreeing to employ the word “Party” here, sought to prevent an alleged escaped slave from successfully asserting her or his freedom before a court in a free state by using the legal “technicality” that he or she had been owned by a corporation, and not a person. Virtually every slave brought here from Africa was at some time (and sometimes for their entire lives) owned by a company/corporation – not a person. And it was very common for companies in America to buy, sell, hold, and work slaves. Therefore, here in Article IV, the Framers of the Constitution explicitly declared a Constitutional right that they asserted belonged to any legal entity – such as a chartered slave trading company or some other enterprise, or to a slave-owning person. And they designated the legal entity that possessed that particular right a “Party” – a simple concept and term that is very different and distinct from the word “Person”, but which (like the word “Person”) was widely and commonly and well understood by everyday people, including lawyers, at that time, as well as by everyday people here and now. A “Party” is simply a legal entity, which might mean an actual live human being, or which might mean an artificiality recognized by the state, such as a corporation. The key point for us here is that a “Party” is not necessarily a “Person”.
With the single remarkable exception of that one horrendous slavery-protecting sentence in Article IV section 2 which we have been discussing, the Constitution did not define any rights or responsibilities possessed by a legal entity (a “Party”) that was other than a “Person[s]”, “Citizen[s]”, “State[s]”, or branch[es] of the federal government. The Framers and ratifiers of the U.S. Constitution simply left it to the Congress and to the states and to the people, to define, charter, enable, circumscribe, and otherwise regulate and define the privileges and responsibilities and limitations of legal entities such as corporations.
This single sentence in Article IV Section 2 clearly (a) Delineates the only Constitutional right that the Founders described for a “Party“, and certainly intended to be enjoyed by a legal entity such as a corporation, and (b) Explicitly, incontrovertibly establishes (and confirms the massive evidence, noted elsewhere and by other sources) that the Founders, and the people themselves, never intended to, or did, invest a corporation with the Constitutional rights ascribed to a “Person”. A corporation, under the Constitution, is nothing more nor less than a “Party”, and a “Party” is not the same thing as a “Person”.
So far as I know, neither the supreme Court in its published opinions, nor any legal arguments presented to the Court pertaining to this strange and ill-founded legal theory that a corporation is a person under the Constitution, nor any pertinent legal texts or scholarly studies, have ever cited or considered the unambiguous evidence contained in the Constitution itself, implicit in the concluding sentence of Article IV section 2. But we, the people, can no longer allow it to be ignored.
The other key citation in the Constitution bearing on whether a corporation is a “person” under the Constitution is the 14th Amendment, which contains four (and only four) sentences employing the word “person[s]” (all located in sections 1, 2, and 3, which are very brief and to the point). Note that the 14th Amendment is invariably cited by the Supreme Court when it has asserted that a corporation is a person. So pay close attention to the 14th 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.
Section 2: Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed…
Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath… as an officer of the United States … or of any state … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same…
The 14th Amendment to the U.S. Constitution
When you read the first sentence in section 1, it is clear that a corporation can not be, and never has been properly considered a “citizen” (in order to vote, run for elected office, pull jury duty, serve in the military, or otherwise enjoy the “privileges and immunities” of citizens, for example). Only a “person” can become a citizen, and a “person” is a living breathing human being.
When you read the first sentence in section 2, consider carefully the undeniable fact that corporations are not and never have been counted as “persons” residing within a state, or a congressional district, for purposes of apportioning representation in Congress. Article I section 2 of the Constitution mandates this “Enumeration” every ten years, and corporations have never been counted as “persons”, since day one. Is it possible that the U.S. Constitution has been blatantly violated (from 1790 and every ten years, and every national election since) by the Census and by the entire governmental apparatus which was established by the Constitution, in failing to enumerate corporations and other legal entities (other than actual human beings living in the United States) for purposes of apportioning representation in Congress and presidential electors? That would be a simply ludicrous argument to make, and just stating it illuminates with stark clarity that neither the Founders themselves, nor the framers and ratifiers of the 14th Amendment, nor the people themselves, of any generation over the two-plus centuries since the nation’s founding, harbored any intention whatsoever that a corporation be considered a “person” under the Constitution.
When you read the first sentence of section 3, consider whether a corporation qualifies to be a Senator or Governor or other public official. Of course not. A Senator or other public official must first be a “person” – which is a living, breathing human being. Ask, do the corrupted members of the Supreme Court think that a corporation can legitimately hold office as a U.S. Senator or Congressman or President or Justice? (On second thought – don’t ask them that question. In the first place, they won’t answer it – I suppose, on the specious grounds that this question just might come before the Court some day, so they dasn’t talk about it. And when they do answer that question, with a Court decision, if we have anything at all left of our brains and our spirit, we will not like their answer – unless we the people first gain control of what should be our government before they can drop the gavel on their twisted answer to it.)
Could these three sentences opening sections 1, 2, and 3 in the 14th Amendment that explicitly use the word “person” lead any rational, sane person to believe that those who wrote and ratified the 14th Amendment, or the people in general, had any intention whatsoever that a corporation was to be construed as a “person”, or possessed the Constitutional rights of a “person”? Of course not. Our 14th Amendment argument boils down, first, to the fact that corporations have never been counted as “persons” by the Census, which has been explicitly mandated by the Constitution since ratification, and which has been used every ten years since 1790 to apportion Congressional representation, initially according to the Constitution itself and, since 1868, according to the 14th Amendment. And our argument slams shut with the simple assertion that the “person” to be enumerated (or not) by the Census (as described in the first sentence of section 2 of the 14th Amendment), is precisely the same “person” whose rights to due process and equal protection of the law are explicitly stated in the sentence immediately preceding it – (the concluding sentence of section 1 of the same Amendment). There cannot be two deeply different and contradictory meanings of the word “person” in those four contiguous sentences.
Historically, the 13th, 14th, and 15th Amendments were motivated and ratified, at the end of the Civil War, to end slavery and to ensure that basic rights of the freed slaves be established and protected. The 14th Amendment ensured that slaves and their descendants, freed by the Emancipation Proclamation and the 13th Amendment, could become citizens, and would have their basic human and civil rights (as “persons”) protected against wholesale violation by potentially hostile, reactionary, and racist individuals, groups, and local and state governments. Only a complete knucklehead or a fully corrupted Court Judge could conclude that the 14th Amendment was written and ratified based on the assumption that a corporation is a “person”. Yet that is exactly what the supreme Court outrageously did without a legitimate deciding, concurring, or dissenting opinion on the point 2 decades after the 14th Amendment was ratified! And that is exactly what the corrupt 5-4 majority of the supreme Court explicitly did in 2010!
In 1787 and 1791, the Founders had established (in the Constitution and in the Bill of Rights) the mandate that the federal government not violate certain basic human rights. Bracketed between the two defining sentences that begin sections 1 and 2 of the 14th Amendment, each of which clearly define a “person” as a living, breathing human being, and which have universally been interpreted and applied to do so, is the most important sentence of that Amendment. The second (and concluding) sentence in section 1 of the 14th Amendment (ratified some 80 years after the Constitution and the Bill of Rights were ratified), explicitly required, for the first time, that each of the states was also forbidden to deprive any “person” of these most basic human rights of due process and equal protection of the laws. Even the fanciest of corporate lawyers (and despite wearing the cloak of a supreme Court Judge) cannot get away with saying that the “person” that is guaranteed the rights of due process and equal protection of the laws by the 14th Amendment is not precisely the same “person” that is meant by the three surrounding sentences of that very same Amendment. Even the slickest, crookedest, forked tongue calling himself a “Justice” or a Constitutional law “expert” cannot get away with saying that (only) the “person” referred to in the second sentence of section 1 – the due process and equal protection clause – (in stark contrast to all of the “persons” referred to in the entire rest of the 14th Amendment) just might be a son-of-a-gun corporation. Even simple, everyday people can figure that out – without a lawyer, thank you. And anyone who can’t figure that out shouldn’t be allowed to be a lawyer or a judge – and certainly shouldn’t continue to be allowed to hold office as a supreme Court Judge!
The 14th Amendment did NOT just “give” citizenship and basic human rights to people of color or ex-slaves. Actually, sections 1, 2, and 3 of the 14th Amendment did not say a single word about color or national origin or slavery. Read it again. Section 1 of the 14th Amendment defined citizenship in the United States for the very first time. That was a very good and very important thing for all of us. And Section 1 mandated, for the very first time, extremely important human rights for ALL of us “persons”, (regardless of our color, age, nationality, creed, or sex, and no matter which of the states we happened to find ourselves in). The 14th Amendment directly benefited and strengthened the civil rights of each and every one of us – not just people of color or ex-slaves. Don’t forget that. When corporate stooges and corrupt judges attempt to bestow on corporations the inherent human rights that the Constitution says belong to the people, they are trying to steal, dilute, and make meaningless, the basic civil rights of ALL of us – not just the rights of those people who had been recently freed from slavery.
The historical widespread subsequent ignorance, abuse, disdain, and neglect of the 14th Amendment in America, and the grotesque misuse and distortion of the 14th Amendment by the U.S. supreme Court, resulted in a cruel and hugely ironic injustice. The refusal to apply 14th Amendment rights to real, live people resulted in the tragic, brutal, oppressive century of American apartheid known as the era of lynching and Jim Crow laws. The essential human rights protections described in the 14th Amendment were blatantly and entirely disregarded and ignored until the landmark Civil Rights and Voting Rights Laws were finally enacted a full century later.
Instead, those basic rights of “persons” that were enunciated in the second sentence of section 1, were almost immediately seized upon by corporate strategists and employed, without justification, to assert that corporations have all the constitutional rights that in fact should belong fully and only to real, live human beings. Besides a century of lynchings and other Jim Crow era human rights violations, this led directly to the gross inequities of the Gilded Age and the protracted tragedy of the Great Depression. In recent decades, even greater reliance on, and extension of the legal hoax that a corporation has the Constitutional rights of a 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 primary looters, no recovery of the massive loot, and no regulations or enforcement to effectively prevent it from happening to us again and again. The aberration and travesty continues to this day, and will continue, and worsen, until we, the people, put a stop to it.
Until the people demand and obtain a return to the intent of the Constitution regarding the rights of a “person”, the people will remain, as we currently are, without protection from unbridled corporate power.
In addition to this analysis, or if you harbor any doubts about whether the supreme Court has been dead wrong in granting to corporations the constitutional rights of a “Person”, I encourage you to inspect the 21 other places where the word “Person” was employed in the text of the Constitution as it was adopted on September 17, 1787, and the 22 other places where it was employed in the Amendments. See if you can find even one use of the word “Person” in which it is conceivable that the word applied or referred to a corporation, or to anything other than a living, breathing human being.
Summarizing – under the Constitution with Amendments , and in particular, Article IV section 2, and the 14th Amendment, sections 1, 2, and 3, clearly:
• A “person” is a living breathing human being, and as such, exclusively possesses all Constitutional rights explicitly described for a “person” or “persons”.
• A “person” working for a corporation has rights, a “person” who owns stock in corporations has rights, and a “person” who is a corporate director has rights. These Constitutional rights are exactly the same rights that any “person” possesses, regardless of corporate affiliation.
• Corporations are legal entities that possess rights that were spelled out in the Constitution for a “Party”. But a corporation (as well as a planet, a foreign government, a forest, etc.) is not a “person”, and certainly does not legitimately possess Constitutional rights guaranteed to a “person”.
W.E.B. Du Bois presciently defined the over-riding problem of the 20th century, at its outset, as the problem of the color line. We Americans can and must, each and all of us, finally erase the adverse effects of that color line. Our task, to help America live up to its promise, has been to obliterate a line – the color line -that so tragically and unjustly divided and still divides people against ourselves. Our task now is to clearly define a very different line – the legal line that distinguishes we, the living people, from them, the un-dead corporate entities.
The defining struggle of the 21st century at the outset of the 3rd Millennium, and underlying all other political issues, will be to establish and defend the line between a person and a corporation. Prevailing in that struggle will be necessary in order to win government that is of, by, and for the people (instead of government that is by and for the corporations and the super-rich), and to value life and our planet before and above property and profits.
This study is inspired by, and dedicated to the brilliance and the spirit of Tecumseh, Frederick Douglass, Harriet Tubman, Crazy Horse, Ida B. Wells, Joe Hill, W.E.B. DuBois, Malcolm X, Muhammad Ali, Martin Luther King Jr, Cesar Chavez, Rosemary Nigro, Dolores Huerta, Dorothy Height, Diane Nash, Rachel Carson, Harriette Parker, Walt Bresette, Roberta Blackgoat, Skip Porter, John Gilman – and so many, many other American exemplars of courage, compassion, and integrity, past and present, famous and not-so famous, who let their own little light shine, let it shine – for us and for the future.
Essays spotlighting the consequences of Constitutional “corporate personhood”:
Join the struggle to win government that is of, by, and for the people – not the corporations:
Legally negating the supreme Court rulings in the cases noted below which have established the legal fiction of that a corporation is a Constitutional “person”, and the resulting destruction of government that is of, by, and for the people, will require either (a) a supreme Court that will fully reverse the terrible precedent it has established, or (b) the Congress to insist and remedy, through explicit legislation, that its Constitutional responsibilities and powers have been usurped by certain supreme Court rulings, or (c) a Constitutional Amendment. Lesser statutory reforms may, or they may not, contribute some temporary relief or helpful tactical delay or opportunities to organize. But the only real solution will be to fully rescind the injustice that is now enshrined in Constitutional law.
References: [Note, this is NOT a complete list, by any means. Important references are not included here, and I need to do further research to provide a complete list.]
The Constitution of the United States of America, and Amendments
[The following noted legal cases that were heard by the supreme Court include only some cases that most importantly advanced and then consolidated the legal theory that under the Constitution, a corporation is a person and money is speech. Other cases, as well as cases that tended in the opposite direction (which have been effectively reversed by rulings in the above cases) are not listed here.]
Santa Clara County v. Southern Pacific RR Corporation 1886
(A corporation is a “person” under the meaning of the 14th Amendment! This case can be seen as starting the ball rolling, and is considered by many legal, academic, and business specialists as establishing the cornerstone of corporate law. The exquisite irony of this case is that the crucial assertion that a corporation is a “person” in the meaning of the 14th Amendment, was (a) never examined or challenged in arguments presented to the Court, and (b) the legal reasoning behind the assertion was neither revealed nor examined in the deciding unanimous Opinion of the Court, and (c) the assertion itself was made only in the headnotes to the case, and (d) the Opinion of the Court explicitly examined and rejected the necessity of ruling on, or establishing any precedent in, a matter of Constitutional law. This castle of corporate Constitutional law has been erected on a foundation of deception, evasion, and absolutely no substance.)
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
(Corporate personhood means 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!)
Arizona Free Enterprise Inc. v Bennett 2011
(Public financing of elections [to counter corruption and improper influence] is ruled unconstitutional!)