filkertom: End Corporate Personhood

Tom Smith (

filkertom) wrote,
@ 2008-12-30 09:34:00

Entry tags:

activism, politics

End Corporate Personhood
Change.org (not to be confused with President-Elect Obama's site, Change.gov) is taking submissions on things to prioritize (much as we all did here yesterday). There's a really good one that's taking off -- ending corporate "personhood":

An 1886 Supreme Court clerk's headnotes misreading (Santa Clara County vs. Southern Pacific Railroad) applied the 14th Amendment to corporations, extending to them all the rights, but none of the responsibilities, of human persons. The result has been the steady erosion of our democracy since then, and the consequent rise of the corporate state, which is primarily responsible for the military-corporate-media-academic complex, the expansion of the often brutal U.S. global empire (including the IMF, WTO, and World Bank) with its protecting militarism, and the destruction of our only planet's environment, all in the service of corporate capital's endless lust for power and profits. Corporate personhood is at the core of all of our problems. Ending it is the start of the way back to humane civilization.

- ED CIACCIO (RETIRED TEACHER/CURRENT ACTIVIST)

If you agree, set up a free account -- takes just a few seconds and an e-mail verification -- and vote, in this case before midnight tomorrow.

ETA: I got it into my head that change.org was part of the official transition. It's not. Still a good cause, though.

(Post a new comment)

	smallship1 2008-12-30 03:33 pm UTC (link)
	Oh, gods, this is what I've been hoping for for YEARS. And it was a mistake?! Typical. I voted. Whether a Brit vote counts or not, I don't know and I don't care. If Obama's administration can be persuaded to do it, the rest of the world may follow. If I could live to see that, it would be marvellous. (Reply to this) (Thread)

tinrat
2008-12-30 04:41 pm UTC (link)

It was not a mistake. The Court's reporter, a former railroad president named J.C. Bancroft Davis, defied his own Chief Justice and improperly opened the headnote with a statement that "Corporations are persons" under the law, which was exactly 180 from what the court actually decided.

By the time the headnotes were published the Chief Justice was dead.

Corporate lawyers could then point to the headnote without having to actually pull out and show the actual Law.

(Reply to this) (Parent)(Thread)

scifantasy
2008-12-30 05:38 pm UTC (link)

which was exactly 180 from what the court actually decided.

Come again?

I just skimmed the decision in the reporter. According to the prior history, the defense's brief discussed whether the Fourteenth Amendment's equal protection clause applied to corporations, and the Chief Justice said before oral argument that "we are all of the opinion that it does." Now, if you want to say (this is what the Wikipedia article claims) that this issue was not the topic of the case and shouldn't have been put in the reporter at all, OK, I'll buy that.

But the Court didn't actually decide the matter of the Fourteenth Amendment applying to corporations--the Chief Justice said he didn't want to hear debate on that matter, after all--so while the inclusion of the remark was a likely-unjustified extension of the law, I'm not seeing how it's "180 from what the court actually decided."

And if the reporter was accurate in the Chief Justice's quotation, then that's probably just a matter of setting the scope of reevaluation. I wouldn't be surprised if, lacking that, the matter had gone to the court later, and if all the Court was in agreement, then it would have been decided eventually.

Then again, I haven't taken Corporations Law yet. (IANAL, but IAALStudent.)

Therefore, I don't have an informed opinion about actual corporate personhood. It strikes me that it might make it easier for corporations to actually be sued, jurisdictionally speaking--International Shoe and World-Wide Volkswagen relied on how a State can claim jurisdiction over an out-of-state resident, especially a corporation--but that's just an off-the-cuff.

(Reply to this) (Parent)(Thread)

tinrat
2008-12-31 06:00 am UTC (link)

It is my understanding that Chief Justice Waite didn't give in to the railroad's arguments, and that he refused to rule that the railroad corporations were persons in the same category as humans. In a handwritten note Waite wrote: "We avoided meeting the Constitutional question in the decision."

Most of the other justices blew a big, fat raspberry at the Idea of corporate personhood.

And nowhere in the decision itself does the Court say corporations are persons.

(Reply to this) (Parent)(Thread)

scifantasy
2008-12-31 02:45 pm UTC (link)

Chief Justice Waite didn't give in to the railroad's arguments, and that he refused to rule that the railroad corporations were persons in the same category as humans...nowhere in the decision itself does the Court say corporations are persons.

As I said--he said that he and the Court didn't want to hear any discussion of the Fourteenth Amendment. In the immediate case, the Court found grounds to affirm the judgment without discussing the Constitutional questions.

That doesn't mean they agreed or disagreed with the idea of corporate personhood. It just means they didn't see a need to decide the matter to decide the case. That doesn't make the statement "corporations are persons" contrary to the decision, because the decision has no view whatsoever on corporate personhood. It would be like saying that Roe v. Wade is 180 from the Second Amendment because the Amendment isn't discussed.

(Aside: You'd be amused how hard it was to find an Amendment not discussed in Roe: "OK, what are the more obscure Amendments...Third? *clicky* Nope. Privacy matters. Sixth? *clicky* Er. Nope. Why? Dunno. Tenth? *clicky* Nope." Only then did I think of the Second.)

The statement from Waite that I quoted above does seem to promote the idea of corporate personhood, if it's accurate.

Most of the other justices blew a big, fat raspberry at the Idea of corporate personhood.

Where? How? The only decision in the case was Harlan's, and as I said, it refuses to discuss it.

(Reply to this) (Parent)(Thread)

tinrat
2008-12-31 07:02 pm UTC (link)

Justice Samuel F. Miller blew the loudest raspberry at corporations for trying to claim the rights of human beings. In the majority opinion, he rote that the amendment's "on pervading purpose was the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him."

one thing that I hope we can all agree on is that this case should be pulled into the light of day and looked over very carefully. Make sure nothing else has been "accidentally" mislabeled.

(Reply to this) (Parent)(Thread)

scifantasy
2008-12-31 07:20 pm UTC (link)

If I'm reading what I think you're quoting, I'd reject the conclusion that because the Court sidestepped the issue in 1886, they meant to rule against it. Courts love to sidestep. Eventually the matter would have been settled, and there is evidence (that "reprogramming" that article's author decries) that it would have settled out in favor of personhood.

But never mind. Minutiae of the legal system is what I'm dealing in these days, but that's no excuse for dragging it out in the wrong forum. Enough dueling citations. Sorry for drawing you into it.

(Reply to this) (Parent)

	I could go research it... liddle_oldman 2008-12-30 04:15 pm UTC (link)
	Hmmm. It just occurred to me to wonder if this means corporations can marry? (Reply to this) (Thread)

	Re: I could go research it... sethb 2008-12-30 04:36 pm UTC (link)
	It's called a merger. They have more rights than people: any number of corporations can marry. They can also divorce (spinoff). On the other hand, only same-sex (profit vs. nonprofit) corporate marriages are allowed. (Reply to this) (Parent)(Thread)

Re: I could go research it...

banjoplayinnerd
2008-12-30 11:49 pm UTC (link)

Spinoff seems more to me like having children. Or maybe it's more like mitosis/cytokinesis or something since they resemble amoebas more than they do people.

I don't think there is an equivalent to divorce, since when corporations "merge" they merge into a single, Borg-like unit that might superficially contain vestiges of the original companies, but it's all folded into the same entity. Or something.

(Reply to this) (Parent)

	louisadkins 2008-12-30 04:40 pm UTC (link)
	Um, yes, please. Corporate Personhood is Baaaad, m'kay? (Reply to this)

	lariss 2008-12-30 04:53 pm UTC (link)
	Been blathering about this ever since I read "post Corporate World" to anyone who would listen. Thanks for bringing this to my attention. (Reply to this)

randwolf
2008-12-30 05:29 pm UTC (link)

Oh, for heaven's sake! Yes, this is a problem and I'd like to see reform in this area. But the idea of corporate personhood is not responsible for all the ills of the world, and it's a huge waste of time to spend effort on it that could be better spent on solving actual problems. This is the left-wing version of those people who think that the gummint isn't actually following the constitution and therefore all law since 1925, or 1896, or whatever, is invalid and can be ignored.

A corporation is legally a fictitious person. The key word, however, is "ficticious"--it's a legal device, that's all. The legal device of ficticious personhood is used to give organizations--cities, businesses, non-profits, and so on--legal standing independent of their organizers. Corporations have different legal rights and responsibilities from individuals: they are taxed differently, officials of a corporation are not usually responsible for its debts, and so on. Sometimes the Supreme Court has sometimes used the legal theory--though never actually decided--that the Bill of Rights applies to corporations. (Santa Clara County v. Southern Pacific Railroad Company, 1886.) This theory was later much-weakened during the 1930s but still sometimes forms part of legal arguments, and I'd be happy to see it entirely abandoned by US law. But imperialism and the abuses of the authority of business existed long before this legal theory and will undoubtedly persist long after--it is an excuse, not a cause or enabling law.

Could we please not spend time on this? It's a huge distraction from real-world issues.

(Reply to this) (Thread)

	louisadkins 2008-12-30 06:11 pm UTC (link)
	Could we please not spend time on this? It's a huge distraction from real-world issues. You don't have to, but I (and others) want to spend some time on it. It's not the OMGWorstInTheWorld idea, but I feel it's worth some time/energy/resources. (Reply to this) (Parent)(Thread)

	randwolf 2008-12-30 06:31 pm UTC (link)
	Sure. I just don't want to see it taking huge amounts of time and effort away from things like the environment and health care. I'm also more than a bit puzzled as to how anyone is going to proceed in this area. (Reply to this) (Parent)(Thread)

alverant
2008-12-30 09:35 pm UTC (link)

I recall a quote from the Civ4 game that defines a corporation as an entity that maximizes individual achievement and minimizes individual responsibility. That's because of corporate personhood. Since a corporation is treated as a person it means the people who made the choices like ignoring environmental concerns, neglecting employee health care, releasing shoddy products can diffuse their own responsibility among the company as a whole, spreading it out so far that no one person is really to blame.

That's why we should proceed. Remove the personhood of a corporation and we can punish those within it for their own bad decisions.

(Reply to this) (Parent)(Thread)

randwolf
2008-12-30 09:51 pm UTC (link)

Neal Gaiman, after an exceptionally bad experience with a small comics publisher, once commented that big isn't necessarily bad and small isn't necessarily good. Sole proprietorships and partnerships also ignore environmental concerns, neglect employee health care, and release shoddy products. This is part of what I hate about this "fictitious person bad" argument. It all sounds plausible, and it sucks huge amounts of time, but when one gets down to realities, it doesn't seem to hold up. If you want laws that require business to be environmentally responsible and take care of their employees, then work to pass them. But whether the businesses are incorporated or not doesn't seem to make much difference.

(Reply to this) (Parent)(Thread)

dbcooper
2008-12-31 02:05 am UTC (link)

Big and irresponsible, however, with all respect due to Mr. Gaiman, hasn't worked out all that well for us so far. See also: Wal*Mart, Lockheed Martin, Department of Homeland Security (not, admittedly, a corporation, but still big and irresponsible and bad for us), the Big Three Automakers...the list goes on. Yes, there are some organizations that are big and responsible, but often because we hold them accountable.

(Reply to this) (Parent)(Thread)

	randwolf 2008-12-31 03:51 am UTC (link)
	Sure, but that's a different issue. I don't think fiddling with corporate law is going to help much with that one. (Reply to this) (Parent)(Thread)

	dbcooper 2008-12-31 03:56 am UTC (link)
	The error of turning corporations into "persons" without responsibilities has been the hole in the core of corporate law since 1886. It's the same issue. (Reply to this) (Parent)(Thread)

	randwolf 2008-12-31 04:08 am UTC (link)
	Business corporations are obligated to obey the same laws that every business is obliged to follow. They pay debts and taxes, like any other business. What on earth are you talking about? (Reply to this) (Parent)(Thread)

dbcooper
2008-12-31 04:19 am UTC (link)

Your truism--that businesses have to follow business law--avoids the point I'm trying to make--and the point of this entire thread--which is that businesses get the same rights as people without having to follow the same restrictions or fulfill the same responsibilities as people. Even when caught breaking the laws they do have to follow, such as those against toxic waste dumping, they often escape responsibility by lawyering up and clogging the courts with appeals, something individuals cannot afford. Even when they do lose, they are often fined far less proportionally speaking than individuals are.

(Reply to this) (Parent)(Thread)

randwolf
2008-12-31 04:50 am UTC (link)

You switch between "businesses" and "corporations" like the two are the same. Unh-unh. Sole proprietorships and partnerships (the other forms of business recognized by US law) do exactly the same things as corporations and partners and owners already have the rights conferred by Santa Clara v. Southern Pacific. As if that's not enough, the officers of corporations can be personally charged as criminals for crimes committed in the corporate interest. Legally, there's no there, there. You will get no quarrel from me if you want better enforcement of the laws against the abuses of businesses, of whatever organizational type. But why not work on that, instead of diddling with the fine points of legal theory?

(Reply to this) (Parent)(Thread)

dbcooper
2008-12-31 05:06 am UTC (link)

For starters, it's not a fine point, and to continue, diddling with fine points of legal theory is exactly what the largest corporations' most expensive lawyers have done to get us to this wonderful mess we find ourselves in today.

Additionally, the corporations that have taken the worst advantage of that terrible decision are businesses. The smaller businesses, whether sole proprietorships, partnerships, or corporations, escape responsibility for their mistakes and misdeeds far less often.

However, thank you for providing me the opportunity to make that point.

As to the idea that officers of corporations can be personally charged as criminals for crimes committed in the corporate interest: technically, that is factual, but it seems to escape the notice of federal and state prosecutors required to make such cases. If a regular citizen were to dump the amount of toxic waste dumped by Union Carbide in Bhopal, India, in 1984, directly resulting in approximately 3,000 deaths, that person would be charged as a mass murderer (probably second degree, assuming the person committed the same safety violations resulting in the disaster in Bhopal that year, and assuming that person had a reasonably competent defense team), while Union Carbide settled for about US$3,800 per death, and changing their name in India to Eveready.

In theory, corporations with large coffers have some, but not all, the same responsibilities people do, but in practice, they are held to them much more rarely. This must change.

(Reply to this) (Parent)(Thread)

randwolf
2008-12-31 05:53 am UTC (link)

"The smaller businesses, whether sole proprietorships, partnerships, or corporations, escape responsibility for their mistakes and misdeeds far less often."

Is that true? Can you provide evidence? I don't think you know, really--you are just saying it because it props up your argument.

Businesses, especially businesses operating overseas, too-often get away with murder. I would be glad to see an end to that. But what's your point? Do you think that changing, in a small way, corporate law is going to make prosecutors more willing to act? Or, for that matter, embolden prosecutors outside of the USA or make non-US courts more willing to act against US officers? There were legal actions resulting from Bhopal. The Indian Supreme Court let Carbide off the hook--US corporate law had nothing to do with that outcome. "Union Carbide settled out of court [in India] for $470 million, thus avoiding any damaging legal precedent or liability. In return, India's Supreme Court ordered the dismissal of all civil and criminal charges against Carbide and its officers, and gave them immunity from future prosecution."* I am all for holding businesspeople accountable for criminal acts. But if that's what you want, why not just say so, and then do something about it?

(Reply to this) (Parent)(Thread)

dbcooper
2008-12-31 07:20 pm UTC (link)

It is what I want, and I am doing something about it, by lobbying my Congresscritters and trying to raise public awareness. While we differ on the whys and wherefors, and are trying to shift the burdens of proof on each other, and while we disagree on the import of fictitious personhood as defined by the misreading of Santa Clara County vs. Southern Pacific Railroad, I think we both want the same thing here. Just in case there's any misunderstanding, let me clarify:

I want it made clear that no business, large or small, has Fourteenth Amendment protection under the law, but rather has rights sufficient to allow them to operate for their own and the public's mutual benefit, and responsibilities and accountability sufficient to prevent them from harming individuals, competitors, or anybody else for that matter.

(Reply to this) (Parent)

alverant
2008-12-31 04:28 pm UTC (link)

I never said "big is bad and small is good". But a large organization can do more damage than a small one when they choose to ignore their responsibilities. Now I use the word "organization" to include corporations, companies, partnerships, governments, etc and to mean any collection of people operating as part of a "fictitious person" so let's not get bogged down in semantics. If this fictitious person is held responsible for what real people do, then the punishment gets too diluted to be effective. Consider this situation:

Supervisor: If we cut costs, I get a bigger bonus this year. Find a way to slash 10% off the budget. I don't care what you have to cut, just do it.
Manager: The only place is in the QA department.
QA: If you cut our funding, we can't do a very good job.

Then because of a lack of QA, the company's products kill 5 children. Who should be blamed? The QA who had their hands tied? The manager who had to cut their funding? The supervisor who ordered the budget cut from anywhere? Everyone has an excuse, not having adequate means, being under orders, and blissful ignorance respectively. So what happens? The fictitious person of the corporation pays a huge fine, prices go up, the QA dept gets employees replaced, manager gets a reprimand, and the supervisor gets his bonus. Does that seem right?

And just to be fair, the US Army is also a fictitious person and look at what happened when we found out they were torturing people.

(Reply to this) (Parent)(Thread)

randwolf
2008-12-31 05:30 pm UTC (link)

Criminal acts committed by and on behalf of a corporation--a corporation can only act through human agents--can be and are prosecuted. Charges can be brought both against the corporation and its "directors, officers, employees, or shareholders." Read the US DOJ guidelines. Now, I don't think this is done often enough, but that's a different problem; incorporation isn't the source of it. Understand, I am all for cleaning up abuses of power and the biggest abuses usually involve organizations, whether legal corporations or government agencies. I just don't think that Santa Clara v Southern Pacific or the idea of incorporation is a the biggest source of abuses, and too much effort spent on the legal details sucks energy away from the larger problem.

(Reply to this) (Parent)(Thread)

alverant
2008-12-31 06:08 pm UTC (link)

You didn't answer my question. We have 5 cases of negligent homicide. Who should be charged? You say charges can be brought against the supervisor, manager, and QA employees, but which one should be charged? If more than one person is charged, how do you divide the responsibility?

That's my point, if you divide the responsibility, in a large organization you may have to divide it among so many people that the ones who are at the root of the problem don't get any meaningful punishment. Cleaning up the abuses of power is what the removal of personhood is about.

To answer my own question, I blame the supervisor 100%. He said to cut the budget and didn't care how. He's responsible for the fallout.

(Reply to this) (Parent)(Thread)

	dbcooper 2008-12-31 07:21 pm UTC (link)
	I agree totally. Law enforcement must hold the key decision-maker accountable based on evidence sufficient to remove all reasonable doubt. If that's the supervisor, then prosecution must charge the supervisor. (Reply to this) (Parent)

	janeg 2008-12-30 05:30 pm UTC (link)
	You can also find a link to an idea worthy of your vote (in the Social Entrepreneurship category) in my blog at http://janeg.livejournal.com/48639.html I live in Canada and I voted. What happens in the USA affects us a lot. (Reply to this)

banjoplayinnerd
2008-12-30 11:59 pm UTC (link)

For years I've wanted to see an organization similar to Grover Norquist's Americans for Tax Relief tackle this issue. Norquist holds a breakfast meeting every Wednesday that's attended by conservative anti-taxers of all stripes, including not a few Congresscritters. Great for networking and lobbying and spreading the anti-tax meme of the week.

The trouble with starting an organization like this of course is that it seems to be kind of self-limiting. One is hard put to imagine a corporation that would willingly sign on to such a program.

(Reply to this) (Thread)

thatcrazycajun
2008-12-31 05:57 am UTC (link)

Grover Norquist is not someone I consider a good role model for improving government in any respect; he's the one who famously said he wants to shrink government "down to a size small enough to drown it in the bathtub." He and his ilk begin from the premises that ALL government regulation is evil and wrong and unfair, and ALL taxation is theft. Movement conservatives like him want government to do only three things: defend the shores, deliver the mail and enrich businesses and their owners.

And I have trouble buying the notion that corporate personhood is "at the core of all our problems." Some of them, surely; but saying "all" makes it a rather sweeping generalization, and most likely inaccurate.

(Reply to this) (Parent)(Thread)

banjoplayinnerd
2008-12-31 07:32 am UTC (link)

I am not saying we should emulate Norquist. He is in my opinion a vile and reprehensible human being. I am only saying that he has developed a highly effective organization that has had a great deal of success in pushing his agenda, and while I don't like Norquist or his agenda, his type of organization -- sponsoring regular meetings with diverse groups of influential people, where one's lobbying efforts can be maximized -- has a great deal to recommend it and is issue-neutral, and could well be adapted to progressive and liberal causes. If progressives and liberals could get their ducks in a row, that is.

Corporate personhood is not at the core of all our problems, I will grant you that. (For the record, I didn't say it was.) But it does at least exacerbate a great many problems, even if it does not directly create them, and revoking that personhood would certainly help in the amelioration, if not the solution, of those problems.

(Reply to this) (Parent)

	dbcooper 2008-12-31 02:06 am UTC (link)
	I believe the official Gummint Change web site is change.gov, but I've been wrong once or twice before in my life. ;) (Reply to this)

lemmozine
2008-12-31 03:56 am UTC (link)

Shattering corporate personhood is, simply, the first and most necessary step in reversing the current failures of the capitalist system IMHO. Simply (and I always think fairly simply), where does all the disappearing money go? When stock prices fall, businesses fail, banks fail - a good deal of it goes to line the pockets of corrupt corporate boards and CEOs, decreasing the value of stocks, causing investors to go broke, and ending prospects of retirement, decent health care at reasonable cost, etc. etc. I think we need to turn these thieves upside down, shake them, and see what falls out of their pockets. They are the terrorists behind our current destruction.

On another topic, I wonder if anyone has set up a begging website yet and called it something like sparechange.com. I'll have to go check now.

(Reply to this)

	dan_ad_nauseam 2008-12-31 05:52 am UTC (link)
	The problem, under the law, is not that corporations are equivalent to persons. The problem is that states stopped regulating the conditions under which corporate status is granted as a result of the Delaware-led race to the bottom. (Reply to this) (Thread)

	randwolf 2008-12-31 06:19 am UTC (link)
	Wholly-owned subsidiary of Dupont, the Delaware gummint. But--correct me if I am wrong--my impression is that a lot of laws aren't enforced, even by other jurisdictions. Now, having the Federal government step in, that might make sense. But talk about an uphill battle! (Reply to this) (Parent)(Thread)

	dan_ad_nauseam 2009-01-01 05:55 am UTC (link)
	Occasionally (e.g., Smith v. Van Gorkom), the Delaware courts will do something reasonable. (In Van Gorkom, the court basically said that if corporate directors are going to defend their actions as a business judgment, they actually have to look at the materials in front of them and exercise judgment.) (Reply to this) (Parent)

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