The following remarks were delivered by Daniel Crawford in opening the first annual Democracy Day in Newark on September 17th, 2017:
“Let us recognize that our reasons to convene today are numerous. Beginning with a special – albeit slightly belated – celebration of the 131st Birthday of the Corporate Person. On May 10th, 1886, the Supreme Court – notably with a former railroad industry lawyer, named Morris Remick Waite as Chief Justice – ruled in Santa Clara County v. Southern Pacific Railroad Company that the Californian County’s decision to levy taxes on the company’s fencing was inappropriate and a violation of that corporation’s supposed equal protection under the law as guaranteed by the 14th Amendment. When the ruling was announced, the Supreme Court’s Recorder – a former railroad company president named J.C. Bancroft Davis – declared in his “headnote” for the case that the Court had affirmed the personhood of corporations. The immediate impact of this change was – as John Witt, a professor in law and history from Yale Law School put it in an interview with NPR in 2011 – that the Supreme Court later used this precedence to force Congress and State Legislatures to treat corporations as legal, “metaphysical” persons in the early-Twentieth Century.
Before 1886, our Framers and the Supreme Court held a very different view of the concept of Corporate Personhood. Thomas Jefferson repeatedly expressed his disdain for the fact that the originally-proposed Constitution did not offer a “restriction of monopolies”, and then later rejoiced when the Bill of Rights were ratified that monopolies were – in his estimation – going to be restrained. Thomas Paine once said “[i]t has been thought that government is a compact between those who govern and those who are governed; but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist, and consequently there could originally exist no governors to form such a compact with. The fact therefore must be, that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”
What you encounter with the concerns of Jefferson and Paine – among others – was a desire to respect and protect the power of the people. Jefferson knew that the unchecked might of consolidated power in economics or politics was problematic for the common man. Paine was conveying a reminder that all institutions of humanity’s creation ought to always remain subordinate to the people…living, breathing people. While we have never had a pure democracy with direct control by the masses, our experiment with representative democracy in this American Republic commands that we vigilantly defend popular sovereignty from the corrosive tendencies of those whom desire to usurp our collective authority for their selfish empowerment and enrichment.
In the decades after the nation’s founding, the standard view of corporations as lifeless creatures of the people was plainly upheld in legal precedence. The Legendary Chief Justice John Marshall expressed in the 1819 Dartmouth College v. Woodward ruling that “[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.” Later on, the rather infamous Chief Justice Roger Taney said the following in the 1839 Bank of Augusta v. Earle ruling: “A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law.” He then added further that a corporation “…is indeed a mere artificial being.”
Furthermore, an NPR article by Nina Totenberg published on July 28th, 2014 – entitled “When Did Companies Become People? Excavating the Legal Evolution” – it was noted, per the input of a legal historian, that corporations initially only had “the right to have their contracts respected by the government”. What changed, though, was that the industrialization of our country compelled many corporations, particularly those involved in railroads, to push for an expansion of corporate rights. Even so, after the ruling in 1886, corporate rights were limited for quite some time; as the court – for instance – had ruled – per the 1906 Hale v. Henkle case – that corporations had no claim to the right of individuals to “plead the fifth” in criminal cases because they were artificial creatures of the state and required monitoring.
In 1907, Congress had even passed a law forbidding corporate involvement in political campaigns on the federal level in the aftermath of a corruption scandal of a then-recent presidential election. Interestingly, in the Flint v. Stone Tracy Co. ruling of 1911, the Supreme Court determined that the corporate income tax imposed was constitutional although a personal income tax was forbidden by the Constitution at the time. Then, in the 1978 First National Bank of Boston v. Bellotti ruling, the Supreme Court ruled that a Massachusetts law prohibiting the bank’s contributions to an effort to defeat a ballot issue on tax policy was unconstitutional. As a result, states lost their power to prevent corporate entities from influencing ballot measures.
Then came the culmination of recent events. In 2010, the Supreme Court handed down a remarkably destabilizing ruling in the Citizens United v. Federal Elections Commission case. In that case, a film made for the 2008 Election cycle, entitled “Hillary: The Movie”, had violated a law passed in 2002 – popularly known as “McCain-Feingold” – on bipartisan grounds that was meant to – in part – curb corporate attempts to influence an election from their treasuries. In this particular ruling, the Supreme Court decided that corporations are “people” with a legal right to “speak” via their expenditure of money so as to influence an election. Four years later, the Supreme Court further compounded this problem of misconstruing the expenditure of money as an expression of speech by ruling in McCutcheon v. Federal Elections Commission that the same aforementioned law at issue in “Citizens United” violated the First Amendment by restricting an individual’s ability to donate to a collection of political campaigns.
Since the 2010 ruling, we have seen the creation of so-called Super-PACs, which are assembled mostly by corporate interests to funnel unlimited amounts of money into an effort to influence our elections. 2012 was the first major experiment with this new phenomenon and saw – at one point – each of the major candidates for president supported by a billionaire or group of billionaires via one of these monstrous political action committees. None of these billionaires or millionaires contributing mountains of money into these committees are doing it for sport. You don’t invest a lot of money into a cause unless you expect beneficial results.
If corporations are people, then we should be forgiven to expect that these “legal persons” can be tried and punished for murder. I do not say this to be facetious, but rather to seriously suggest that anyone whose death is caused by the actions of a corporation should conceivably receive justice by way of every board member of said corporation facing indictment for involuntary manslaughter at an absolute minimum. Why every board member? Why not? Do they not, collectively, comprise the corporation? If not, then which single member of the board should bear all the responsibilities for the actions of their larger “legal person”? The C.E.O.? The Chairman? Where does the corporate person begin and end?
If money equals speech, then it would be equally logical to suggest that a poor person has less “speech” than a wealthy person. Basically, the fatter your wallet the more political power you are entitled to have. This is the beginning of the erosion of our democracy; when we establish barriers between the people and their government. If this path continues uninterrupted, democracy will give way to oligarchy; which is to say that the wealthy alone will control the reins of power with our democratic power existing only as a rubber stamp of their predetermined will or – at the very least – to provide us a choice between one oligarch faction’s vision and another’s.
The second reason for being here is to remember and celebrate the federalist Constitution which governs our current political order. 230 years ago today, the Constitutional Convention in Philadelphia signed the document we now observe as they sent it to the original thirteen states for ratification. One of the amazing features of this relatively new form of government is that the Founding Fathers – understanding that societies evolve and with that evolution comes a necessity for the governing body to adapt – provided a means by which we can alter the foundation thereof. Article V instructs us on how to make amendments – which we have done 27 times, with the most recent addition occurring almost 30 years ago -, with the safest means starting with a two-thirds vote in both Houses of Congress and the most radical means triggering an amendment via two-thirds – or 34 – of the states calling for a Constitutional Convention. Regardless of the path for amendment, three-fourths – or 38 – of the states are needed to ratify any changes.
Let us consider why a Constitutional Amendment clarifying that Money is not speech and that Corporations are not people is essential. While laws can be tweaked to comply with a Court ruling, and while new Courts can rule on a future case and reverse these problematic interpretations of the Constitution, only a Constitutional Amendment can permanently rectify a constitutional crisis of this magnitude. In times past, the Constitution has been amended to rectify what the regular order was incapable of addressing. This is because certain past amendments were essential to fix a fatal flaw within the system as it had existed in the past.
Political chaos in the election of President Thomas Jefferson necessitated an amendment to dispense with the original design flaw of choosing our presidents. A Supreme Court ruling in 1793’s Chisholm v. Georgia case pertaining to a lawsuit between a citizen of South Carolina and the state of Georgia had held that citizens of one state could sue another state, and the political uproar that this caused – as a threat to the sovereignty to each state – warranted another corrective Constitutional Amendment. There are more examples that a lengthier presentation could offer, but these two particular instances of amending the Constitution to remedy a flaw produced from our past imperfection took place within the lifetimes of our nation’s founding generation.
The dual threats of corporate personhood and perceiving money as speech pose the latest threat to the stability and functionality of our political system. This government was created for us, all of us, not just a few. These rulings on the supposed rights of artificial entities and monetized speech, starting from 1886 through to 2014, have presented us with a genuine crisis requiring our immediate attention. So, let us have a piece of cake, present our written and/or oral testimony, and then send a resounding message to our elected officials in Columbus and Washington that the time to act on an Amendment is here.