Here is the link to the article that is criticized by this essay. You might want to read it first.
In “Let Us Now Praise Corporate Persons” appearing in the Jan-Feb 2015 issue of The Washington Monthly, Kent Greenfield, a self-described “progressive who teaches corporate law”, looks askance at “the corporations-are-not-people crowd” and complains that the core principle of our Movement to Amend “isn’t helping fix the problem – in fact, it’s making it worse.” Professor Greenfield first identifies the core principle of the Movement to Amend,then he replaces that core principle with a distortion of that principle, and then he proceeds to attack the distortion he has fashioned. He also claims he knows a way to “fix the problem”. But the “problem” that concerns him is not corporate rule and the resulting destruction of Constitutional representative democracy and the unalienable rights of a person. The problem that really troubles him is the grassroots Movement, which seeks to establish government that is of, by, and for the people, instead of government that is by and for corporations and the super-rich.
As weak and transparent as are his faulty logic and stealth attack, his re-framing of our Movement in order to discredit it, does have the potential of undermining its support. And Professor Greenfield’s kool-aid has been widely distributed since that magazine article appeared. He has taken his show on the road. Shortly after his article appeared in print in January, he was adoringly interviewed at length on a nationally syndicated National Public Radio program, featuring his critique of the Movement. And the red carpet was rolled out for him again, on the nationally broadcast TV program, Democracy Now, in what was mis-characterized as a “vigorous debate” with another law professor, specifically focusing on the Movement. Neither speaker in that “debate” even mentioned national Move to Amend. More recently, the Greenfield article that was published in the Washington Monthly appeared again (unaltered, but under a different title) in the summer 2015 edition of The Utne Reader. And despite his claim of being a friendly “progressive”, careful attention to the substance of the message he is disseminating exposes his clear intent to undermine the growing national groundswell of grassroots support for a Constitutional Amendment to end legalized bribery and corporate rule, and to establish democracy while protecting and strengthening the rights of the people.
He begins by pointing out and naming the “one belief that unites [the notoriously fractious American left] more than most” – the belief that a corporation is not a person! (Greenfield uses the slightly different, but somewhat confusing and even alienating phrase, “corporations are not people”.) And Greenfield repeats that phrase (while subtly snubbing it) five times (!) in the first ten sentences of his nine-page essay. By doing so, he clearly spotlights the target he intends to discredit – the essential, uncompromising core principle of the Movement to Amend, which is that corporations do not legitimately have the Constitutional rights of a person. Greenfield then proceeds to divide the Movement into (a) unidentified sensible moderates who “limit themselves” to questioning something which he calls “the Court’s campaign finance jurisprudence”, as opposed to (b) the radical “corporations-are-not-people crowd”. Never inquiring at all into the validity or the basis for that core principle, he very briefly introduces his straw man to stand-in for that principle. It is at this point that Greenfield first introduces to readers his idea that, “groups sprang up to fight corporate personhood“.
Before we let Greenfield get away with a glaring mis-characterization in his opening paragraph, it is important to state that the belief that corporations do not legitimately have the inherent, unalienable rights of a person does NOT unite merely “The American left”, as the professor asserts. That non-partisan, non-ideological belief unites the American people, as polls and election results have shown for the last decade. . But let us continue examining the corporate law professor’s argument.
Greenfield then subdivides part (b) of the Movement by naming the most outrageous (to him) radicals of all – those who have not only refused to “limit themselves to attacking the Court’s campaign finance jurisprudence”, but have also gone far beyond merely “making a broader attack on corporations being able to assert any First Amendment speech rights”. These most brazen of all radicals (c) “have called for disabusing all corporations or businesses of any Constitutional right.” Notably, the national organization that is and has been leading the grassroots Move to Amend [See: https://movetoamend.org/ ] does not even appear on the professor’s list! I can’t imagine that Greenfield is ignorant of Move to Amend. Perhaps guidance from corporate think tanks is the reason for his outlandish failure to even mention Move to Amend.
Suddenly the corporate law professor turns chummy and genially informs us that, “These are my people … many of the leaders of this movement are friends and respected colleagues”. How liberal of Kent – claiming that some of his own “friends” are those flaky anti-corporate personhood types! He confides in us that his “coal miner grandfather once sat [him] down” and tried to teach him that if it wasn’t for the union, Kent would not have been able to sit and talk with his grandpa – perhaps Kent might not have even been born! He claims to be “an oddity – a progressive who teaches corporate law” – (apparently not the same type of “oddball” as Donald Trump, with whom he favorably compares himself many pages later, in illustration of the voluntary “reforms” he proposes to “make corporations more like persons, not less”. He concludes his opening gambit with a self-promoting assertion. “A corporate lickspittle I’m not”, says he. You be the judge of that.
Now Greenfield climbs back on his high horse, and for the rest of his essay, he flails at his straw man, while ignoring what the Movement truly stands for. He conflates an alleged fight to “destroy corporate personhood”, with the core principle of the Movement to Amend, which is that corporations do not legitimately have the Constitutional rights of a person. Greenfield misrepresents the Movement as standing for something that is easy to discredit and attack, rather than dealing with what it actually stands for, which is virtually impossible to marginalize or refute. Greenfield has committed the classic sophomoric logical fallacy of setting up a phony straw man argument. He intends to discredit the core principle of the Movement to Amend, but he will try to do that by framing it as seeking “to destroy corporate personhood”, instead. There can be no doubt that Greenfield is basing his defense of corporate power, and his attack on the Movement of the People to Amend, on the premise that the Movement seeks “to destroy corporate personhood”. He repeats the phrase “corporate personhood” 25 times in his essay.
The corporate law professor has arrived at the hors d’oeuvres and cocktails of his “Let Us Now Praise Corporate Persons” essay. From now on, Greenfield will be wandering about, dropping names of various corporate icons, sprinkling historical references that he feels are somehow germane, and promoting nuances of his suggestions for voluntary corporate “reforms” that might make corporations seem a tad bit “democratic”, a little less grasping and greedy, even sort of ‘caring’. And now and then he’ll take another gratuitous poke at the “destroy corporate personhood” straw man he has set up. He’ll do that for the rest of the essay, rather than grapple directly and honestly with the simple but critically important contention of the Movement of the People to Amend, that corporations do NOT legitimately have the Constitutional rights of a person, and that the imposition of the fraudulent doctrine that a corporation is a Constitutional person prevents the people from establishing, defending, and enjoying democracy; and government that is of, by, and for the people; and life on a planet that will be able to continue to sustain life as we know it. Greenfield’s most direct, but also most deceptive and unsubstantiated contention in his “Let Us Now Praise Corporate Persons” essay is that:
“… the attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite. What’s the best way to control corporate power? More corporate personhood, not less.”
But his contention misfires as the reader tries to catch and then follow the thread of his straw man argument through the next eight pages. It’s deceptive because it misrepresents the goal and strategy of the Movement. It’s unsubstantiated because he never does more than surmise, and postulate illogical hypotheses and irrelevant analogies that this Movement of the People is bolstering rather than threatening corporate rule, and he certainly never provides evidence, much less a convincing argument, that his magical, mysterious way is “the best way to control corporate power”.
It’s appropriate at this time to inquire, what exactly is the difference between the core principle of the Movement and the straw man that Greenfield sets up to attack it? The core principle of the Movement is that: Corporations do not legitimately have Constitutional rights.
The straw man argument that Greenfield employs is to establish in the minds of his reader or listener, a mythical movement, which is dedicated to abolishing “corporate personhood”.
But the term “corporate personhood” is not the same as “Constitutional rights for corporations”.
“Corporate personhood” is an encompassing catch-all term that stands for a wide variety of different legal concepts. It means pretty much whatever the person using it wants it to mean.
The straw man argument that Greenfield falsely postulates is that the Movement, for example, would end the principle of limited liability for corporations and their owners. The Greenfield straw man argument, for another example, presents the outrageous fiction that our Movement would prevent victims from recovering civil damages from massive injuries inflicted on them, individually or collectively, by corporate negligence or malfeasance. The Greenfield straw man argument, for a third example, deceitfully implies that our Movement to Amend would block corporations from entering into contracts with other corporations, with government agencies, or with actual Constitutional “persons” like you, me and other humans. The law professor making this straw man argument appears to prefer avoiding the fact that corporations do not need Constitutional rights in order for shareholders to be protected from liability for actions of the corporation; or to engage in a legally binding contract with another corporation, with a government agency, or with a person; or to sue or be sued in court.
The truth is that the Movement does not actually target “corporate personhood”. The Movement targets the unjustifiable doctrine that corporations possess rights that are defined by the U.S. Constitution. That is a very big difference – one that must not be ignored.
Here is a side note of warning to those who are or will become a part of the Movement of the People to Amend. “Corporate personhood” may seem like a convenient sound bite to use, but it is a trap that we should take care to avoid. When someone says that she wants to abolish “corporate personhood”, an easy response and rebuttal – just ask Professor Greenfield! – is to question how she is going to get her roofing, plumbing or car built or repaired, or how she is going to sue the bastards when the work isn’t done right. “Corporate personhood” casts too large and imprecise a net. We actually don’t want, and we certainly don’t need, to be framed as a movement to abolish “corporate personhood”. Declaring – like some are – that you want to abolish “corporate personhood” is like opening Pandora’s box or breaking a piñata on April Fool’s Day. Open it and see what comes out at ya. Attacking “corporate personhood”, without thinking about what it really means, simply because it’s a phrase that rolls easily off the tongue and gets a few friendly heads nodding, gives the people nothing substantial to hold onto, but it invites our corporatist opposition (such as Professor Greenfield) to use whatever they want in that box to discredit us and to confuse the people.
The straight truth is that the Movement to Amend does not seek to abolish “corporate personhood”. The Movement is focused like a laser on a very precise target. This Movement intends to end the judicial coup d’etat that has fraudulently established the unjustifiable legal doctrine that corporations have Constitutional rights. The Movement does NOT seek to abolish all the many possible meanings and interpretations of “corporate personhood”.
Professor Greenfield defined “corporate personhood” by asserting, “Understand that ‘corporate personhood’ simply expresses the idea that the corporation has a legal identity separate from its shareholders.” That’s a fair statement and no one is quarreling with it. In fact, MOVE TO AMEND often argues that a corporation is an artificial legal entity, not a Constitutional “person”. That clearly defines a ‘separate legal identity’, does it not? The Movement is simply insisting that: Corporations do not legitimately have Constitutional rights. That’s all. That’s not too much. But that’s crucial.
Corporations do not need Constitutional rights to be able to exist and function effectively. In a democratic republic, the people, and the law – not corporations – are sovereign. But when unrestrained corporations usurp the rights of the people, usurp the responsibilities of government, and also are enabled to violate the unalienable rights of a person, then the people become subservient to corporate rule. That’s not democracy. That’s oligarchy and serfdom and getting worse. That’s not what our U.S. Constitution was intended to establish. And that’s not what we the people, or what life on our planet needs. That is what is at stake here.
At only one point, deep in his essay, does Greenfield stumble upon the Movement’s core principle. He says, “When the left cries that corporations are not people, what they mean is that corporations should not be able to claim the constitutional rights that human beings can. Yet even here, there is reason to praise corporate personhood. Remember, the opposite of a constitutional right is a government power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. That power can be abused, and corporate personhood is a necessary bulwark.” [bold faced type added]
Not a word of understanding does he express for that core principle. Outrageously, he again falsely implies that only an emotional ideological fringe element of the people as a whole (“the left [that] cries”) maintains that corporations do not legitimately have the Constitutional rights of a person. He takes exception to it with his very next sentence. But he fails to make a direct rebuttal or any attempt at factual correction of this core principle. Instead, he again smacks his straw man, and then heads off on a tangent, which doesn’t help make his case one bit, although it does drag a stinking distraction across the trail. We’ll follow the bait just long enough to show that it’s only junk. There are two major fallacies in his simplistic instruction that gets ditto heads nodding instead of thinking: “Remember, the opposite of a constitutional right is a government power.” We’ll cite just one historical example to illustrate the first fallacy.
Consider the Constitutional rights of any person to due process and equal protection of the laws, and the privileges and immunities of any citizen of the United States, as expressed by the 14th Amendment. Individual human beings, businesses, mobs, incorporated entities, and government officials blatantly and egregiously violated those rights when, at various times, for many generations, people of color, women, and those advocating labor and human rights, were systematically and often brutally denied basic human and civil rights. We know that the constitutional rights of those persons were finally (though belatedly and not yet fully, to be sure) protected and enforced by government power. In that extremely important historical example, (federal) government power was clearly NOT the opposite of the (human) constitutional right. In that case, government power opposed the denial and the violation of those Constitutional rights. The explicit naming of any unalienable rights of a person in the U.S. Constitution actually enjoins the government to stand in opposition to the violation or denial of such a right by anyone, including but not limited to the government itself. In that example, and in many others, government power actually fulfilled and protected the Constitutional right, as was its Constitutional obligation. Greenfield’s caution is a blatantly simplistic familiar ideological rallying cry. It implies that government power seldom or never intervenes to protect Constitutional rights; it only acts in opposition to Constitutional rights. His is a misleading slander on government that was established to be, and should be of, by, and for the people. Greenfield is quite obviously what he says he is – a corporate law professor, not a Constitutional law professor.
The second fallacy in Greenfield’s contention is the image of a teeter-totter with government power on one side and constitutional rights on the other. His implication is that it’s we the people together with corporations (on one side) – standing in opposition to government (on the other side). In reality, the political power relation that we now face consists of (at least) three factors, not just two – Constitutional rights, governmental responsibilities, and corporate power. Weakening government does not necessarily give human beings more rights or freedom. Not by a long shot. Since corporations have been illegitimately gifted Constitutional rights, weakening government just unleashes an expansion of corporate rule, which promptly fills the power vacuum that is left. The Constitution of the United States, and the democratic republic that it defines, is the people’s “bulwark” against corporate rule! As we all have been learning lately, corporate power does not admit that it has any legal obligation to avoid trampling all over the supposedly unalienable rights of a person. (And, unfortunately, neither does the Supreme Court.)
Greenfield, in the last two sentences above, simply and glibly rationalizes a sweeping rewrite of the Constitution. “If corporations have no rights” he worries, then the people, through the state and federal governments established by our Constitution, can control and regulate the corporations that the government has chartered and permitted to operate. And the Congress and the states have full power to define the terms and conditions. Since Greenfield (to say nothing of modern mega-trans-national corporations) doesn’t like that idea, then (in his view) corporations must have Constitutional rights in order for them to have “a necessary bulwark”, and thus be free and independent of unwanted government control and oversight. We can argue about whether or not corporate power needs, or should have a Constitutional “bulwark” against We the People, and our government. But the plain and simple truth is that the Constitution does NOT provide that “bulwark” to artificial legal entities that have been established by the states. Greenfield’s rationalization of such a “bulwark” is merely fallacious corporate wishful thinking. It is not in the U.S. Constitution.
In our constitutional democratic republic, government is intended and designed to establish that, within the limits proscribed by the Constitution, We the People are sovereign, and that the government is of, by, and for the people. That is accomplished by, among other things, establishing that each person has unalienable inherent rights, which are guaranteed by the Constitution, and therefore by the government. Corporations, however, are not intended to be sovereign in a democracy. Corporations are artificial legal abstractions, which are created by the law, and thus subservient to the law. Corporations are authorized and licensed by government, acting on behalf of the people. Corporations do not legitimately possess any of the Constitutional rights of a person. Nevertheless, they have been claiming and usurping first one, then more, and lately all of our rights. Also, corporations have no right to assume any of the Constitutional prerogatives or responsibilities of government, which “We the People” did ordain and establish. Yet corporate power has been increasingly doing so, in the name of ‘delegation’ and ‘privatization’ of those responsibilities, asserting false claims of ‘efficiency’ and ‘convenience’. Last but not least, corporations have absolutely no valid Constitutional license to violate any of the unalienable rights of a person. But we the people, for generations, have grown used to corporations doing just that … every day, violating more and more of our inherent rights … with impunity.
The people should be the sovereign power in a democratic republic. Corporations may want our rights – to use as a “bulwark” against government oversight and regulation. But they do not need them, and (more importantly) they should not and they do not legitimately have constitutional rights. The government is intended and designed to serve the needs of We the People. The people and their representatives in Congress and in the state legislatures properly license and determine regulations and privileges that are applied to corporations. If the people’s government becomes hamstrung due to corporations usurping both the Constitutional rights of a person, and the responsibilities of government, the rights of each and every person increasingly become trampled by unrestrained corporate power. The U.S. Constitution defines, empowers, and limits our government. The Constitution does not define, enable or govern corporations. The Congress, the states, and the people do that, and corporations have no Constitutional rights as a “bulwark” against that.
Next, the ‘activist’ professor doubles down on his rewriting of the Constitution. “In fact, the argument that corporations should never have constitutional rights is embarrassingly flawed.” Hey, stop right there, professor. What exactly is the flaw that you find so embarrassing? He provides no answer! All that the law professor says is, sometimes corporations should have Constitutional rights, and sometimes they shouldn’t! Which rights? When? “The answer”, he says, ducking and covering behind the curtain concealing the truth, “depends on the context.” Wow. What a slippery slope does this professor’s Constitution rest upon. Not a hint of the “embarrassing flaw” that he alleges to be in our core principle can be found anywhere in his essay, unless his rambling dissertation of convenient interpretations of history, name-dropping, and marketplace ideology contains it. You want an “embarrassing flaw”? I’ll give you a real one.
The really big “embarrassing flaw” is the failure of the U.S. Supreme Court to ever rigorously examine the text of the U.S. Constitution itself for incontrovertible evidence of whether or not corporations (or their predecessors in law, chartered companies) legitimately have the status of a “Person” in the U.S. Constitution. The evidence is there. [http://wp.me/p1qDE-ti] But the Supreme Court has never looked for it, for the record. Could that be simply because the text of the U.S. Constitution itself provides clear and unambiguous proof that in the meaning of the U.S. Constitution, a “Person” is nothing more and nothing less than a living, breathing human being? I say yes. Corporations may have certain characteristics that lawyers call “corporate personhood”, but a corporation is NOT a “Person” as that word is used throughout the U.S. Constitution. Want proof?
Greenfield asserts (again, without supporting evidence or example, much less proof) that, “… defects of corporate power, fundamental as they are, are not problems of constitutional law … They are problems of corporate law, and they could be fixed by corporate law.”
Greenfield carries on, “The best way to constrain corporations is to require them to sign on to a more robust social contract and to govern themselves more pluralistically – mechanisms designed to mimic the traits of human personhood within the corporate form.”
And finally, Greenfield exits his case by sharing with us his belief “that, in this moment, there is an opening to question the very framework of how we view corporations and their social obligations. But we won’t get anywhere on that front if the progressive left wastes its energy fighting for a constitutional amendment that is unlikely to succeed and would do more harm than good if it did. To cure the ills of Citizens United, we should stop fighting corporate personhood. Instead, let’s fight to make corporations more like people.”
That’s it. That’s his answer! Going way beyond artificial intelligence – Greenfield pleads with corporations to sprout artificial souls, and then to “govern themselves more pluralistically”. Is that likely to succeed? Again, he slanders and misrepresents the non-partisan, non-ideological Movement to Amend, which is overwhelmingly supported by the American people, as an infantile “left” movement. Greenfield’s nebulous, toothless, magical ideas, and unfounded contentions, capped by his closing paragraph, are nothing but – what did he call it? – “Lickspittle”. Yeah, that’s it. “Corporate lickspittle.” Perhaps this Movement of the People can find something with which we can politely find agreement before waving a finger good-by to Greenfield. We can agree that actually, the U.S. Constitution is not responsible for corporations being gifted the Constitutional rights of a “person”. (The Supreme Court, and our corrupted two-party system, is responsible for that.) We also should be able to go along with not “fighting corporate personhood”. But we absolutely and fundamentally cannot tolerate corporations having Constitutional rights. And just for the heck of it we can, with good humor, ask Greenfield to demonstrate how to “make corporations more like people”. That’s a really good one, Kent. Don’t expect us to wait around till you pull that off.
It’s been hard publicly exposing the obviously flawed argument of someone I have never met – doesn’t make me feel particularly good. I feel bad for Kent Greenfield. How could this gifted and talented man, able to attain such academic stature, professional responsibility – and rewards – have failed to grasp the elementary lesson that his grandfather (who certainly learned it the hard way, laboring all his life, surviving the dangerous coal mines of Appalachia) tried to teach him? What could have happened to cause him to choose, as he has, when the question arose, “Which side are you on, boy? Which side are you on?” But we can’t let him and his attack on the Movement of the People to grapple with the political challenge that will define the 21st century – perhaps the third millennium – pass through unchallenged.