hearts and minds

May 30, 2013

Does a Corporation Have Constitutional Rights? – A PA judge says “No!”

A Note of Respect and Gratitude to Debbie O’Dell Seneca, President Judge Emeritus of the Washington County, PA. Court of Common Pleas, for her Ruling in a Case involving Damages Suffered by Families due to “Fracking” (Extraction of Natural Gas) done by a Corporation:

Please accept my congratulations for your recent courageous ruling that a corporation does not possess Constitutional rights, and for asserting that, if corporations could claim Constitutional rights, then corporations would become a “… legal fabrication superior to the law that created and sustains it”.

I share with many people a deep concern about the struggle that will define the 21st Century – Corporations v. Persons. I have studied and, from time to time, written about this struggle for more than a decade, and a little over two years ago I finally felt impelled to personally dig into the tap root of the problem and closely examine an underlying question: “What, specifically, is in the U.S. Constitution that would allow a Supreme Court Justice to conclude that a corporation legitimately possesses the rights that are defined there as being the rights of a person?” I found an answer that has been overlooked for too long, and to our peril.

Part 1 of my two-part essay, “Does a Corporation Have Constitutional Rights?” examines a single sentence in Article IV Section 2 of the U.S. Constitution that appears at first glance to be irrelevant, and is also assumed to be obsolete, but is actually critically important to us today because it makes crystal clear the intent of the Constitution in this matter. This sentence is the one and only place in the entire U.S. Constitution (with Amendments) where the word “Party” is employed. It is indeed fortunate for us that this very same sentence also uses the word “Person”! With a little thought, you will appreciate the significant implications of this. Part 1 concludes that: ‘A Corporation is a “Party”, NOT a “Person”, under the U.S Constitution’.

Corporations, of course, were not even called corporations when the colonies were separating from rule by and for the British monarchy. They were known then as companies, and were chartered by the Crown. Crown chartered companies (and the corporations, licensed by the states of the United States, which soon succeeded them) engaged in the highly profitable trans-Atlantic slave trade, owned vast plantations and other endeavors that employed many thousands of slaves, and financed and insured the institution of slavery, from top to bottom. Aside from the taking of virtually all the land and resources of the entire Western Hemisphere from the indigenous people who had lived here for a thousand generations prior to the European invasion, slavery was the biggest thing going, the most extravagantly profitable, the most pervasive enterprise at the time of the Revolution, and in succeeding decades, in America. And most of the Founders themselves profited greatly from – many even engaged directly as slave owners in – the highly profitable entrepreneurial opportunities presented by slavery (and indentured servitude), and by trafficking in those oppressed multitudes, in America.

Chartered companies (and later, corporations) actually owned, for at least part of their tragic lives, millions of slaves who were brought here from Africa, and a great portion of the millions who were subsequently bred into slavery here. Not only that, a great number of all indentured servants were in peonage to companies (first chartered, and later incorporated) until their debt was erased. Every slave and indentured servant was a “Person”, and was referred to as such by the Constitution. But since many companies owned slaves and indentured servants (and therefore not every owner was a “Person”!) an owner was referred to by the Constitution, as a “Party” – not as a “Person”. A “Person” or some other legal entity can be a “Party”, you see. But a “Party” (which might in this case be a corporation) is not necessarily a “Person”! So the Founders were careful to use that distinction right in the text of the Constitution itself, where they felt it was needed and appropriate, to avoid any confusion or mistake. Let’s show some appreciation for their careful and precise use of the language. It makes our case ironclad and watertight.

This sentence establishes a certain Constitutional “right” for a “Party” which claims ownership of the “Service or Labor” of a “Person”. But this sentence also establishes that the Founders, when writing, considering, and ratifying the Constitution did not believe or intend that a “Party” is the same as a “Person”. Whether you call it a company or a corporation (I’ll subsequently refer to both as a “corporation”) Article IV section 2 makes crystal clear that the Constitution holds such an entity to be a “Party”, with the rights described in the Constitution for a “Party” – not the rights of a “Person”.
In short, the Founders did not believe, intend or even accidentally imply, that a corporation is a “Person” or that any such legal fabrication possesses the rights of “We the People”.

Part 2 of “Does a Corporation Have Constitutional Rights?” spotlights the Constitutional mandate for the enumeration of “Persons”, and the consequent apportioning of Representatives in Congress among the states. That mandate occurs both in Article I Section 2 of the original text, and again, four score years later, in the 14th Amendment. Taken in historical context, these clauses establish that if a corporation were somehow construed to be a “Person” in the 14th Amendment and the U.S. Constitution, then the Census has never been properly conducted by the Congress, and the U.S. Congress itself has been illegally and illegitimately constituted from the very first Congress, all the way through to today’s 113th Congress. Part 2 concludes that “A Corporation Does NOT Count as a Person, under the U.S. Constitution”.

Ironically, we do not need a Constitutional Amendment to correct the Constitution in this case.
We only (but desperately, and undoubtedly) need a Constitutional Amendment to correct the unjustified and unjustifiable false precedent that was asserted, and subsequently cited, by certain corrupted and/or incompetent inhabitants of the U.S. Supreme Court, commencing in 1886.
The text of the Constitution itself, including its Amendments, clearly and without any ambiguity establishes that a corporation is not a person, and does not have the rights of a person.
Article IV sect. 2 makes explicit and undeniable that obvious, common sense distinction, which is clearly implied everywhere else, throughout the Constitution, including all Amendments.
Furthermore, no legitimate argument to the contrary can be made that is based on the actual meaning and intent of the U.S. Constitution and Amendments.

Let’s take a moment right here and now to expose and demolish a distracting false rumor. Establishing that a corporation does not have Constitutional rights does not mean that corporations cannot exist, or engage in business for profit, or make contracts, etc. It just means that corporations can be regulated and restrained – and empowered – if and as we so choose – by the people and their elected representatives. It means that the people’s “inalienable rights” are sovereign over government, and that fabricated legal entities such as corporations are NOT. It’s a pretty basic distinction, and a mighty important one for us to insist on reclaiming. After all, huge corporations, somewhat in contrast to human babies, are conceived in a seductive atmosphere of pecuniary promises and lurid legislation, ‘born’ of a menage of crafty lawyers, watchful bean-counters, and lobbyists, becoming intimately familiar, on many levels, with government officials and their ambitious, career-minded staffers.

My essays on this particular subject, including my proposal for a Constitutional Amendment to correct this U.S. Supreme Court travesty (and also to more explicitly protect the rights of the people) are posted on this Hearts and Minds blog.
This link will directly access them for you and for anyone else who can help our Movement:

https://clydewinter.wordpress.com/category/constitutional-law/corporate-personhood/

Learn about, join and support these two nationwide and local grassroots organizations (neither of which seeks or accepts corporate “donations”) both of which depend on everyday people like you and me to build our Movement. Both are committed to the people winning this struggle, and to getting a strong and effective Amendment, which establishes that (1) a Corporation is NOT a Person! and does not legitimately have any Constitutional rights; and (2) Money is NOT Speech!, and the expenditure and distribution of large quantities of money to influence government officials, political parties, public elections and referenda, is not Constitutionally protected “free speech”; it is legalized bribery and corruption of government.

MOVE TO AMEND http://www.movetoamend.org
PUBLIC CITIZEN http://www.citizen.org

There is nothing wrong with an everyday citizen, with no particular specialized credentials, finding a simple but sound and unimpeachable answer to a very ominous and vexing problem. After all, that’s how a real democracy, and our Constitutional government, is supposed to work. I believe that this long overlooked 2-part argument can and should be an important tool for our Movement to use in this life-and-death struggle for the future and for life as we know it on Earth.

Thank you, Judge O’Dell Seneca, and all others fighting for this Movement of the People.
Thank you for standing up for justice, and for the Constitutional rights that belong to the people.
We, the people, will help you fight against attacks directed against you because of your stand for judicial integrity and the plain truth.
We support and join your stand for government that is of, by, and for the people – instead of government that is corrupted by and for the rapidly growing power of corporations.

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3 Comments »

  1. That’s right, the Constitution does not EVER mention corporations, and the one time it does mention “Party” is the fugitive slave act you refer to (Article IV, Section 2). In my copy of the Constitution printed by the National Constitution Center, there is a footnote that this was changed by the 13th Amendment, the emancipation amendment.

    There are 2 issues here: corporations should not have Constitutional rights, and money is not speech.

    RIGHTS

    So the Constitution clearly NEVER MENTIONS either companies or corporations, and clearly therefore did not intend, when they wrote about rights, to endow them with such. Companies, businesses, corporations – they are not part of the conversation in the Constitution.

    The 2010 Citizens United Decision says that “corporations are entitled to Constitutional rights”, clearly stated. Couldn’t be clearer. Corporations had (ostensibly) obtained the 14th Amendment rights in 1886, then got a few more through other suits, but had never had them ALL before Citizens United. This is truly dangerous, and I can think of no other word than simply crazy , for the chaos it will cause us.

    In the end, the Constitution is saying these rights are unalienable rights of human persons, and the government cannot take them away from us. These rights ARE the American Revolution; the Crown is no longer sovereign, but We the People became sovereign.
    when we give our rights away – and to our INVENTIONS! – to corporations, we have given them more power than We the People now have, because they also have immense privileges.

    The right way to think about corporations is that We the People have given them the PRIVILEGE TO EXIST, and we (should) have dominion over them. They always will have free speech through each and every shareholder, CEO and President; that cannot be taken away. But unlimited spending in elections and secret donations ARE NOT what our Founders had in mind, and the damn Supreme Court knows it . They were able to function just fine before the 14th Amendment in 1886, and if they should have rights, well let’s write the laws for it. They are NOT EQUIVALENT TO PEOPLE before the law, is my objection!

    MONEY AS SPEECH

    Move to Amend is restoring the 1st Amendment to its original meaning, and Constitutional rights to its rightful owners, We the People. The 1st Amendment has no such word as money in it; the Supreme Court are the justices who changed the meaning of the 1st Amendment, too, by inserting the word money. If you review the 1st amendment it becomes clear it is a definition of FREEDOM: of peaceable assembly, of the press, of speech, and of religion, and the right to petition the government for redress of grievances.

    THESE are the activist judges, and were not elected, either, so the action is also very undemocratic. It all really suspends belief! But what isn’t, these days?

    Mary Laan
    Move to Amend

    Comment by Mary Laan — May 30, 2013 @ 10:35 pm | Reply

    • Thank you for your service to the Movement of the People to Amend the Constitution, Mary.

      You are, of course, right that the Movement focuses on two issues. This posted essay concentrates attention on one of those two issues – the argument regarding whether a corporation legitimately possesses any Constitutional rights. And I chose to focus on that issue in this essay largely because some large organizations which have attached themselves to the Movement to Amend have unaccountably (and very mistakenly, in my opinion) failed to address, advocate, educate, and organize around that very issue. A corporation clearly does not legitimately possess the rights which were defined in the U.S. Constitution as the rights of a person. That truth is fully and clearly established by the actual text of the Constitution itself. And the purpose of this essay is to make that argument both rigorous and understandable, and hopefully, widely available to the people. A sound knowledge base is essential for the people to acquire true power. And true power will undoubtedly be necessary to overcome corporate usurpation of people’s Constitutional rights and of the Constitutional responsibilities of government.

      Focusing people’s attention merely on “abolishing citizens united” is both semantically ignorant and politically unwise and inadequate. Characterizing our Movement by using the very words that were cleverly selected by our well-funded opposition to confuse and divide the everyday people who need to become informed and organized, is not evidence of good instincts or thinking. In fact, it’s goofy. We can do better than that. And politically, returning to the status quo of 2009 will not correct the massive problems of corporate control of all three branches of government, and of both political parties, which were well entrenched by that time. I know that we agree, Mary, that the point of developing the momentum to achieve a Constitutional Amendment regarding illegitimate corporate power is not in order to simply return to the corruption and legalized bribery that existed prior to 2010. Finally, we both realize that there is no wisdom in renouncing and disabling the use of ones most powerful arm, before even entering the epic struggle we face. Virtually everybody (speaking of everyday people, from all walks of life now) agrees that a corporation is not a person, and should not have the Constitutional rights that were defined for a person. While probably as many people agree that money is not the same thing as speech, the truth is that the First Amendment does protect “freedom of speech”, and we have a tougher sale to make when we are framed as proposing government to restrict the freedom of political speech. We certainly should not unilaterally and voluntarily abandon either of the two principles of our Movement, but if I had to make a choice between “A Corporation is Not a Person!“, and “Money is NOT Speech!“, I’d choose to establish that “A Corporation is NOT a Person!” under the Constitution. You and I certainly would not simply discard that principle without even using it in the struggle ahead. It’s not wise to tie one’s strongest arm behind ones back before climbing in the ring for the fight of the century.

      The second principle of our Movement to Amend, as you indicate, asserts, briefly, that the expenditure and distribution of large quantities of money to influence government officials, political parties, and public elections and referenda, is not Constitutionally protected “free speech”. It is legalized bribery and corruption, and it can and should be prohibited or otherwise regulated. This principle is concerned with the nature and character of speech, which is protected by the First Amendment, and whether and when and how “speech” and expenditures of money and other resources can be infringed, constrained, or regulated.

      The “free (political) speech” principle resolves itself into two distinct problems. One problem is essentially a matter of definitions and distinctions – and some common sense leavened with a sense of justice. For example, should expenditures of money be Constitutionally equivalent to speech in terms of the First Amendment? Should super-rich people and corporate entities be entitled by the Constitution to “donate” large sums of money to influence government? Should corporate “speech” (and expenditures) in general, be able (under the Constitution) to be regulated differently from the verbal speech that is expressed by a person? Should it be Constitutionally permissible to prohibit or regulate a person who is not a citizen, or a corporation which is not a person, from engaging in efforts to influence (especially by employing large sums of money) our government, its officials, its policies and actions, or its political processes?

      To realize the second problem concerning “freedom of speech”, compare the Second Amendment with the First. The Second Amendment states that, “… the right of the people to keep and bear arms, shall not be infringed.” The First Amendment, in contrast, states that, “Congress shall make no law … abridging the freedom of speech …” Do you see the difference? The people have the right to keep and bear arms and no one and nothing can infringe on that right. On the other hand, freedom of speech is only protected from abridging by Congress, not by other parties, and the 1st Amendment doesn’t explicitly state that the people have the right of freedom of speech. In fact, the Roberts Court, in 2010, exploited that difference in wording to assert that it’s not the people’s right, per se, which is protected by the 1st Amendment, its only the speech itself that is protected, and only from abridging by the government. That First Amendment wording has been very cleverly twisted and exploited by corporatists on the current Supreme Court, to severe disadvantage of the people and our rights.

      The Constitution has thus been interpreted to mean that property rights trump free speech rights. And corporations have increasingly and notoriously been blatantly “abridging the freedom of speech” of employees, stockholders, customers, litigants, – in fact corporations have been increasingly abridging the free speech of virtually everybody. We need the Constitution to state, instead, that “… the right of the people to freedom of speech (and assembly and petition for redress of grievances and religion) shall not be infringed.”
      So, I have to question whether a goal of our Movement should be simply to “restore the First Amendment to it’s original meaning.” In the first place, the meaning is a bit ambiguous, and subject to corrupt misinterpretation. The people’s right, and the people who exercise that right, need to be protected – not merely the speech itself. In the second place, we, the people, in the 21st Century, need our freedom of speech to be protected from being abridged by anyone, including corporations – not just by Congress. We also need our freedom of speech and assembly to no longer be restricted to barricaded or fenced “free speech” enclosures, and to no longer be automatically abolished when any private property rights are even remotely involved.

      I also take minor factual issue with your statement that, “the Constitution is saying these rights are unalienable rights of human persons …”. In fact, it is the Declaration of Independence (not the Constitution) which makes that historic assertion of the “self-evident” Truth of “unalienable Rights”.

      What has happened is that corporate usurpation of the Constitutional rights of the people, and of the legitimate explicit Constitutional powers of government, coupled with opportunistic misappropriation of the specific somewhat unfortunate wording of the First Amendment, has elevated corporate power while toppling democracy, and removed any democratic restraints on corporate power until it has grown, like a gargantuan Frankenstein monster, past the point where it is both too big to fail and also too big to jail, and shriveled the Constitutional rights of a real, live person to an insignificant sham.

      Corporate power, and the aristocracy which wields it, is consolidating a counter-revolution that has been undertaken against the U.S. Constitution and against the People, who, as you have importantly and correctly pointed out, are sovereign in a democracy. This regressive, repressive, reactionary, anti-democratic corporate power has not shown “a decent Respect to the Opinions of Mankind”, and it has derived its illegitimate “Rights and Powers” despite, not from, “the Consent of the Governed”. It has gained intolerable power from corruption in high offices and through “a long Train of Abuses and Usurpations” that renders it “unfit to be the Ruler of a Free People.”

      The answer to the question of how long we shall be disposed to suffer, and how dreadful and despotic conditions will become, is blowing in the wind.

      Comment by clydewinter — May 31, 2013 @ 10:28 am | Reply

  2. Another well crafted essay by Clyde … tied together nicely in a succinct, well thought out package. Also thanks to Mary Laan whose complimentary comments, also succinct and forged from the facts and sweat equity gleaned thru her tireless efforts regarding this very important issue. I couldn’t agree more and anyone actually paying attention and not playing word games would have a difficult task in assembling any type of viable argument in contradiction to these. As was evident in Obama’s last speech on May 23rd, (full of deceitful platitudes and irrational rationals for all of his heinous actions which hopefully he will be allowed to pay for in some alternate universe where mercy and justice prevail — unlike our own where only the one lonely voice of Medea Benjamin had the intrepid wherewithall to present a more truthful and accurate account … and was stifled), the society in which we live has been and is indeed controlled by the corporations that have been given supreme power by a bought supreme court. I post this comment in solidarity with Clyde and Mary.

    Comment by Joe Rad — May 31, 2013 @ 9:33 am | Reply


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