"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."
United States Supreme Chief Juzstice Waite in Santa Clara County v. The Southern Pacific Railroad 1886.
With this obscure, curious and profoundly effective U.S. Supreme Court decision began the history of the little-known (and even less understood) idea of "corporate personhood." It was from this astonishing interpretation of an amendment (christened with the blood of Civil War dead over elevating freed slaves to a level of "equality") that many of the modern obstacles facing democracy emerged--exemplified by the recent federal court decision that set campaign finance reform back about 20 years, as well as the statement by Republican Sen. Mitch McConnell that getting corporate money out of politics "constitutes a frontal assault on First Amendment values the likes of which have not been seen in the Republic's history."
With all due respect to Sen. McConnell, he (as well as many "conservatives") doesn't seem to have a grasp of the Constitution, history nor tradition. The founding fathers were well aware of the power of unbridled capitalism; they knew too well the excesses of the predecessors of corporations, the trading companies such as the East India Company and others--business concerns that had sole proprietorship of vast reaches of the world, enforced by their own armies, navies, laws--even their own flags--economic governments outside of the laws of nations.
Thomas Jefferson put into words a prevailing sentiment of the day:
"I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country."
Indeed, Jefferson was thwarted in his attempt to have a provision in the Constitution forbidding what he saw as a threat to a vulnerable government yet in its infancy--the corporation.
Yet within 100 years or so, the original intent of the architects of the Constitution had been turned on its head by Santa Clara and we live with the results. Virtually every aspect of the modern life of the United States (and the world) is affected by the ripple of this obscure railroad case, grown to a tsunami of undue influence and privilege.
"All animals are created equal, but some animals are more equal than others," goes the famous Orwell quote, that serves also as a superb parallel for the results Santa Clara, what many esteemed jurists, Hugo Black and Louis Brandeis among others, saw as a great legal error--or worse.
Nowhere are the results more damaging than in the famous Buckley v. Valeo (caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=424&invol=1 ) a 1976 Supreme Court case that for the first time equated money with free speech--with enormous consequences for democracy: How can "natural" humans, with much lesser economic means, compete with equal political footing with corporations, 56 of which are among the 100 greatest economic forces on the planet? (Wal-Mart for instance, beats out the nation of Sweden.) The voice of the puny natural human loses every time.
This crisis of democracy did not happen overnight. After Santa Clara, the modern corporation emerged full-blown into American life with a sudden and ruthless seizure of markets via the big monopolies and trusts of the end of the 19th century. It is true the force of these monopolies were blunted to an extent by the U.S. government and the courts, but the damage was done. Big business was ultimately able to utilize the 14th Amendment and Santa Clara to establish hegemony over law and markets--to the detriment of mere mortals, especially black ones. It took another 100 years, until the Civil Rights Act of 1964, to repair the neglect and damage wrought by this hijacking of the intent of both (more on this later).
Much like the frog in the steadily heated pan of water, laws such as a Wisconsin statute* that placed limitations on corporate money and was widely used in this country, became eroded and eventually disappeared, leaving the mass of the citizenry (and elected officials) believing that the status quo is something eternal.
But lately corporations have gotten more brazen and cynical of their protected status. One recent famous case involves the sleepy village of Wellfleet, Mass., and weighty Omnipoint Communications, which wanted to put cell phone towers where few, if any, citizens of Wellfleet wanted them. Too bad, said Omnipoint, citing Section 1983 of the 1964 Civil Rights Acts, which essentially says that any person who causes another person to be deprived of their rights is liable to the injured person.
In another cynical blow to black folks, mighty Omnipoint used an act, passed to repair a hundred years of federal neglect, to trample the wishes of those of lesser means.
Or consider Kasky v. Nike, a California lawsuit over false statements the mega-athletic equipment maker fabricated to mollify critics of the corporation's overseas labor record. The case is being considered in the Supreme Court now, labor activists on one side and the Bush administration's Solicitor General Theodore B. Olson on the other, predictably urging the court to side with Nike. According to Olson, a sharp distinction between commercial and noncommercial speech is "neither necessary nor desirable".
If Nike prevails (as almost every whim of corporations seems to), the results do not bode well for the average natural human. Truth, that elusive seldom spotted cottontail, will become an even more endangered species.
Corporations will have federal courts sanction all sorts of fantastic yarns, much as the press has been recently been given permission to do with the case of Fox reporter Jane Akre and Fox news: Akre was ordered by her superior at a Florida affiliate to report a story on Bovine Growth Hormone that was a falsehood (www.organicconsumers.org/rbgh/akre022103.cfm). She refused, was fired and sued. On Fox's appeal, Fox prevailed, the Florida Court of Appeals saying (correctly) that under the Constitution, the press was under no obligation to report the truth, leaving the major news organization with roughly the same level of factual authority as say, The Weekly World News.
Well, a sullied news organization like a supermarket tab is one thing; one can choose to read it or not. But when a corporation can weave whatever sort of fiction it wishes, supported by the full legal force of the Constitution and compliant, corporate-owned news sources, where will the busy, preoccupied American find the truth?
There may be help on the way. Thom Hartmann's Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights discovered that the famous Waite statement was never part of the court records, that the court reporter for Santa Clara County, Mr. John Chandler Bancroft Davis, a graduate of Harvard Law School and an advocate of the railroads, inserted headnotes into the Court File--after the decision was rendered (http://www.commondreams.org/views02/1226-04.htm).
No one until now ever noticed this bit of legal vandalism and the discovery has enormous implications for the way corporations conduct their business. Suddenly, the fictional equality of corporations with their flesh and blood fellow citizens is just that--fiction, and federal protection under the 14th Amendment simply does not exist. With this federal protection removed, corporations would not enjoy federal protection--they would be subject to local laws.
The highest hurdle is going to be getting the average too be-numbed American to understand this profound reality, much less give a damn. The next hurdle will be to begin to undo more than a century of ingrained behavior (of citizen and politician alike) and propaganda of the sort that McConnell seems to believe to be true. It will take decades, and the best time to start might well be right now, when the Constitution, (battered as it has been by John Fasccroft's posse), seems to be at its weakest. The time to begin is now.
Peter Eichenberger can be reached at email@example.com.