Is there truth in the legal theory that a corporation possesses the unalienable rights of a person, which are explicitly protected by the Constitution of the United States? Does the Constitution confer the rights of a “person”, or of “the people”, upon artificial legal entities we now know as “corporations”? What exactly does the U.S. Constitution consider to be a “person”? If corporations possess the Constitutional rights of a “person”, then corporate power rules our lives and our future. If, on the other hand, the people are sovereign in our government, and only the people have Constitutional rights, then we the people, in compliance with our Constitution, have full legal authority to determine the rules and the policies that organize and shape our lives.
Those who wrote and ratified the Constitution, and the Constitution itself, are fallible, but in this essay, we are not inquiring whether the Constitution is “right” or “wrong” on this question. We are simply examining what the Constitution itself actually says. The U.S. Constitution was well and carefully crafted, without rudimentary errors of logic and grammar. A word that is used in the Constitution, unless defined otherwise in that document, has the meaning that was and is commonly used and understood by the people. And a very important word that is used more than once in the Constitution does not have differing, even conflicting meanings in those several places. If the Constitution itself does not clearly answer the question posed in the title, then we have to look further to answer it. If, on the other hand, the Constitution does provide a definitive answer, and if the answer is satisfactory to the people, then there is no need to look elsewhere, our laws and our courts must comply with it, and we the people must require that compliance.
An elegant mathematical, legal, or scientific proof, like a beautiful melody, contains little or no embellishment. Such elegance is discovered, not invented. It may appear to be simple or complex, but it is generally so unencumbered as to seem uninteresting – unless it happens to provide an unexpected and fundamental insight. Like a nautical chart and Coast Pilot, an elegant proof provides just enough information for a proficient navigator to plan a course – no sea stories, in other words. But just as sailing directions should precisely locate and identify potential dangers or safe harbors in the vicinity, a legal proof that is based entirely on the text of the Constitution itself must present any evidence that might help make a case that the proof presented is either defective or conclusive. If no evidence is presented that would tend to contradict the proof, the claim is made that no such evidence exists anywhere in the Constitution.
Before the American Revolution, the powerful trans-national slave-trading “East India Company”, the fur-trading “Hudson’s Bay Company”, other enterprises, and even the colonies themselves, were legal entities known as “chartered companies”. After the U.S. Constitution was ratified, “chartered companies”, and all similar succeeding artificial legal entities, became known as “corporations”. Since the colonies (which were chartered companies) were transformed by the revolution and the Constitution into “States”, a deceitful invalid claim might somehow be asserted that a corporation has the Constitutional status of a “state”. But how could – how did – did anyone ever try to justify that a corporation has the Constitutional status of a “person”? Be advised that the supreme Court of the U.S. has never rigorously, and for the record, undertaken this search in issuing official Opinions of the Court. That aside, neither the word “corporation” nor the phrase “chartered company” appear anywhere in the U.S. Constitution, including the Amendments. We could suggest that was simply because those who ratified the Constitution fully intended to leave the existence, definition, and regulation of such entities entirely to the states and to the Congress. But we shall not presume so; instead we shall persist in our search of the U.S. Constitution for an answer to the question, “Do corporations have Constitutional rights?” Our examination must, from the outset, search that document carefully for conclusive evidence. Such a search is long overdue. On behalf of “We the People”, and on behalf of our threatened future, we present here, in two parts, our Opinion:
Part I – A corporation does not count as a “Person”, in the meaning of the U.S. Constitution
Beginning in 1790, and in every decade which followed, the official U.S. Census was undertaken, mandated explicitly by Article I Section 2 paragraph 3 of the U.S. Constitution. This census has been done every ten years since our nation’s founding, in order to apportion representation in Congress, which was also explicitly directed by the U.S. Constitution.
The first sentence of Article I Section 2 paragraph 3 directs that the “Representatives … shall be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The second sentence of the third paragraph of Article I Section 2 further explicitly mandates that every ten years the “Congress of the United States … shall by Law direct [the] Manner [of] the actual Enumeration”. Since 1790, the U.S. Congress has been apportioned by Constitutional mandate, and the U.S. Congress has also been specifically mandated to direct the actual enumeration. Has Congress done so correctly? Has the U.S. Congress been apportioned correctly, and been properly constituted since the adoption of the Constitution and the founding of our country? Or has it not?
The first sentence of Article I Section 2 Paragraph 3 established and identified three categories of “Persons” and how they were, or were not, to be enumerated. The first category is “free Persons, including those bound to Service for a Term of Years”, the whole Number of which was to be used for apportioning Congressional representation. The second category of “Persons” is “Indians not taxed”, who are excluded from being counted for the purpose of apportioning Congress. The third category of “Persons” is “all other Persons”, each of whom is to be enumerated as “three fifths” of a “Person” for the purpose of apportioning Congress.
The question that looms large at this point is, “In which category of ‘Persons’ provided by Article I Section 2 are corporations, chartered companies, or any other artificial legal entities which are not human beings?” Clearly, the category “all other Persons” requires that EVERY “Person” – bar none – be included among the three named categories. And clearly, the only way that corporations or their ilk could be omitted from this enumeration and apportionment calculation – assuming that they are “Persons” in the meaning of the U.S. Constitution – is if they are and always were considered to be “Indians not taxed”, by the Founders and Ratifiers, and by every Member who ever sat in Congress, from 1790 through the present day. To belabor the point, corporations could not be in the first category because their “whole Number” has never been counted for apportioning congressional representation (let alone “direct Taxes”) among the states. They couldn’t be in the third category because no artificial legal entity, no corporation, was ever counted as “three fifths of a Person” for apportioning Congress and “direct Taxes”. And since that third category was clearly defined as “all other Persons”, there could be NO “Persons” who were not in at least one of those three categories. Either (a) corporations are actually “Indians not taxed”, or (b) the Constitution has been openly, notoriously, continually, and without protest, violated by Congress since 1790, or (c) corporations are not and never have been Constitutional “Persons”. Mark your choice, now. This argument may seem very silly, but you and I are not the silly ones. It’s the supreme Court, which has backed itself, and We the people, along with democracy itself, into this intolerable corner.
[Please note the following important historical point, and forgive, if you can, the temporary digression. The identification of “Persons” for this Constitutionally mandated Census and apportionment of Congress was intended to, and did in fact include ALL living, breathing human beings, regardless of nationality, sex, age, condition of servitude, or property ownership. The historical record informs us that children, women, men with and without property, and their descendants, of all nationalities, with the exception of slaves, have always been identified as “free Persons” by the official Census, and their “whole Number” was included in the apportioning of Congress. “Indians not taxed” were identified by the U.S. Constitution as free “Persons”, but they were persons – the ONLY persons, mind you – whose “Numbers” were not to be included in apportioning Congress. “All other Persons” certainly included (at least) slaves, so slaves were also Constitutional “Persons”. Slaves were also explicitly identified as “Persons” in at least two other Sections of the Constitution – Article I Sect. 9 and Article IV Sect. 2. “All other Persons” were directed (by a strange negotiated compromise between slave holding and free-state representatives) to be counted as three-fifths of a person. Whites in slave states wanted “the whole Number” of slaves to be counted for Congressional representation, and whites in free-states wanted slaves to be completely ‘excluded’ from the enumeration for apportioning Congress. (Counting slaves at all gave whites who lived in slave states disproportionately far more power in Congress than whites who lived in ‘free’ states, and, of course, slaves themselves were even further ‘disadvantaged’ politically by being counted than had they not been counted at all.) Ironically, had the anti-slavery delegates gotten their way when the Constitution was written, the numbers of slaves from Africa, like the indigenous native people, would not have been counted at all for apportioning Congress, and the category “all other Persons” could have been misappropriated a century later by corporate shysters to try to hustle an outrageous claim before the Supreme Court that corporations had been included in the Constitution among the “all other Persons” category. Unfortunately for corporatists (and fortunately for the case for democracy today) their fondest wish did not, and does not today, have even that Constitutional appendage on which to prop a phony claim. But, for better or for worse, the Constitution was written and ratified exactly as it was written and ratified. And thanks to the existence of “Indians not taxed”, the Constitution explicitly listed a category of “Persons” who were not to be counted for the apportionment of Congress. And also thanks to the millions of African slaves, the Constitution explicitly identified the uncompromising category “all other Persons”. And those two categories absolutely slammed the door, back in the nineteenth century, and today in the 21st century, on the bogus legal theory that corporations are Constitutional “persons”. Corporations had no wiggle room to shuck and jive their way to attaining the Constitutional status of a “Person”. Their only option has been through out-and-out fraud and corruption.]
In 1868, the 14th Amendment to the Constitution was ratified, and Section 2 of the 14th significantly altered how the decennial census was to count the people and apportion among the states Congressional representation. The first sentence of Section 2 stated: “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.” Now the question might arise (since the 14th Amendment revised the counting of “persons” for the purpose of Congressional apportionment from the wording that had previously been mandated by Article I Section 2) whether corporations thereby in 1868 became Constitutional “persons” in the meaning of the 14th Amendment. But again, corporations have never, since 1868, been counted among “the whole number of persons in each state” for the purpose of apportioning Congress. Congress has retained to this day the Constitutional mandate to direct the manner of the decennial enumeration. No person who wrote, proposed, or ratified the 14th Amendment, and no Member of Congress or of the supreme Court since then, has ever objected that corporations were not counted to apportion Congress. Therefore, and fully consistent with Article I, unless the Congress has been illegally constituted, in direct violation of the U.S. Constitution ever since 1790, corporations can only be “persons” in the meaning of the 14th Amendment if corporations are “Indians not taxed”. It should be unnecessary to conclude here by asserting that no rational interpretation of the Constitution could conclude that corporations are, in the meaning of both the 14th Amendment and Article I of the Constitution, “Indians not taxed”. But, under the circumstances, we shall so assert.
The sentence specifically mandating the counting of “persons” in the clearly and perfectly expressed 14th Amendment is the first sentence of Section 2. And the last clause of the last sentence of Section 1 is the famous clause, which declares “… 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.” That clause is the very clause which was (at the very least) mistakenly and misleadingly cited by the notorious clerk of the supreme Court in 1886 who composed the unofficial head notes (which have absolutely no legal standing, by the way, and are provided only “for the convenience of the reader”) that directly contradicted the published official unanimous Opinion of the Court (authored by Justice Harlan) in Santa Clara County v. Southern Pacific Railroad Company. That unjustified, deceptive preface, fraudulently became cited as a “constitutional precedent” since the outset of the Gilded Age, and soon became the illegitimate, unjustifiable (albeit hallowed in both business schools and law schools) cornerstone of modern corporate law. Any sane “person” might reasonably ask how those Members of Congress, and all the many state legislators, who wrote and overwhelmingly ratified the 14th Amendment could have meant the clause asserting equal protection and due process rights of “any person” to include corporations in their meaning of a “person”, when the very next sentence clearly and incontrovertibly establishes that “persons” are nothing more and nothing less than living, breathing human beings.
Part II – A corporation is a “Party” not a “Person” in the meaning of the U.S. Constitution
The word “person(s)” is used 49 times in the U.S. Constitution, with all Amendments. The words “company” or “corporation” are not used even once, despite the undoubted major significance of corporate (or chartered company) legal entities back in 1790 and throughout the centuries right up till today. However, there is another, unheralded word that we cannot ignore and that we must consider, here and now. The word “Party” appears three times in the text of the Preamble and the original Articles of the U.S. Constitution … (more times even than the word “People”, which, surprisingly, only appears twice there). At this time we need to read and carefully consider the third sentence in Article IV Section 2: “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or labor may be due.”
This unique and curious Constitutional sentence very helpfully contains BOTH the word “Person” and the word “Party”! There is absolutely no justification for holding that this single Constitutional sentence used those two different words with exactly the same meaning. So why were those particular words chosen in writing that one sentence? We will start by taking liberties in explaining the meaning of this sentence, which will not alter or compromise the argument regarding how this sentence impacts the answer to the question, “Do corporations have Constitutional rights?” This sentence authorized the Fugitive Slave Acts enacted well into the 19th century. The “Person” in this sentence refers to an alleged slave who had allegedly escaped from a slave state to a state in which slavery was abolished. The “Party” in this sentence refers to the entity that claims to own the alleged escaped slave. A slave in the USA was already clearly a Constitutional “Person” – [Article I, Sections 2 and 9]. However, not every slave owner was a “Person” – not by a long shot. Virtually all slaves brought to North America were “owned”, at least for part of their lives, by huge, rich, and powerful trading companies. Many – perhaps most – slaves were actually owned by artificial legal entities even after they were imported to North America and sold here, or were born into slavery here, because many slaveholders were actually the colonies themselves or the post-revolutionary governments that succeeded them, or large plantations, private for-profit companies, various other institutions, and government agencies. In other words, a great many slaves were owned not by other persons, but by artificial legal entities, including chartered companies and their post-Revolutionary successor “corporations”. A “Party” might or might not be a “Person”, but not every “Party” is a “Person”. A Party could be a corporation – but a corporation is simply NOT a Constitutional person.
The meaning of the sentence we are examining remains perfectly clear and understandable if we replace the word “Party” with the word “Person”. Try it and see. The one and only reason for the Founders, when crafting this sentence, to have used the seldom used word “Party” instead of the usual word “Person”, in referring to a slave owner, is simply that the owner of an escaped slave might not be a “Person”, but might, instead, be an artificial legal entity, like a trading company or a plantation or a manufacturing or service business. How ironic and fortunate for democracy that advocates of slavery defined a Constitutional property right while precisely referring to the legal entity which possesses that right as a “Party”. In none of the three places in the Constitution where the word “Party” is used could that word refer only to human beings.
A blind alley rationale for the theory that corporations have Constitutional rights, alludes to “the commerce clause”. But Article I Section 8 grants to Congress certain power to regulate commerce, and in no way establishes that corporations possess Constitutional rights.
A grotesquely contorted claim is sometimes made that the 13th Amendment – still vehemently hated by some – which sought to abolish slavery, somehow erases sentence 3 of Article IV Section 2, in hopes of thereby challenging (despite Article I Section 2) the clear distinction in the U.S. Constitution between a “Party” and a “Person” – between a slave-owning entity and a slave – between a corporation and a person! Then, in vile resentment of the end of slavery, the 14th Amendment – similarly detested by some – has been profanely twisted to provide the Constitutional rights of a “person” to corporations, while persistently ignoring and denying its intended extension and strengthening of basic human and civil rights for all persons, for over a century. But the Constitutional definition of a “Person” as a living, breathing, human being, was not changed by the 13th or 14th Amendments. And it is beyond ludicrous to hold that a corporation is a “Person” in some sentences, but not in others; or that the words “Party” and “Person” are interchangeable and mean the same thing in the U.S. Constitution. The unjustified and unjustifiable gifting of Constitutional rights to corporations will not stand. We the People shall not and cannot let this outrageous fraud and usurpation continue. It insults our intelligence and it threatens to destroy our future.
Corporations do not legitimately have any of the Constitutional rights of a Person!