Why Bother with Corporate Personhood

by Doug Hammerstrom

Will passing the Resolution to End Corporate Personhood in Point Arena suddenly make all of society’s ills go away? No. But neither will any other single act by any individual or group of people. This is but one step in what surely will be a long process to change the way people think about corporations. Changing the way people think about corporations will have huge consequences.

So much of today’s human activity is carried on through the corporate structure that corporate-think pervades our entire culture. Politicians, the press, commentators, academics, consumers, workers are all steeped in corporate-think. It takes a great deal of effort for any individual to avoid thinking and behaving in ways that facilitate corporate commerce. Public discourse about the world in which we live is filtered through corporate-think. Our institutions of governance make decisions for us based on corporate-think. As consumers, we are driven to acquire goods for the least cost because, as workers, the corporations pay us the least wage.

Wouldn’t it be nice to be rid of this influence on our lives? But it is such a large issue. And we are all so busy leading our own lives. And, if we can find the time, fighting for our favorite cause. How could we unravel such an entrenched idea, anyway? Looking at corporate personhood is a great place to start. It is key to both understanding the history of how corporations became so powerful and understanding why corporate power is such a difficult subject to fathom.

The history of how corporations came to be viewed as "persons" opens our eyes to the role that powerful moneyed interests played in the history of the United States. During the Civil War and the period following a great deal of wealth was newly concentrated in the hands of a few corporations and the individuals that owned them. Among the ways these individuals used their wealth was to hire lawyers to fight for them in court and lobbyists to promote legislation that gave them advantages. They quickly learned that their money could elect judges and legislators, which made the work of their lawyers and lobbyists much easier. So when the Southern Pacific Railroad went to the Supreme Court in 1886 with a case in which they could argue for corporate personhood, the former corporate lawyers on the bench decided corporations were "persons" without even requiring briefs or any argument on the issue.

Seeing this example of how money has corrupted or democracy leads one to look for other examples. Going back to the beginning of these United States, we encounter that curious fact that only rich, white, male, landowners were allowed to participate in this noble experiment in democracy. Is it any wonder that this limited class of individuals designed a system that took care of the needs of their class? James Madison said, "The primary goal of government is to protect the wealthy minority from the majority." Viewing the history of the United States with that idea as a yardstick, one has to conclude that Madison’s priority prevailed. We need to recognize the contradictions between the promise that is still present in the concept of democracy and historical facts of the particular democracy the founders created. We need to understand and acknowledge how a small group of wealthy men made democracy work for them. Then we need to think about the ways our democracy must change to make it work for all of us.

Once we begin to look at our history with a new perspective, we can start to sort out our own truth. Our schooling, our news sources don’t prepare us to think about the questions we need to be asking. We need to take a deep breath and focus truth. Once we are in that place, the idea that corporations are persons is absurd. People are not creations of the government. Corporations are creations of the government. The government is a creation of the people.

Thomas Jefferson was clear about that when he wrote the Declaration of Independence. He wrote that people "are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." People are "endowed with these rights simply by virtue of being people. There is no People Code in our laws that defines what people are, as there is a Corporations Code that defines what corporations are. In the Declaration of Independence Jefferson goes on to say "That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." People create government.

Jefferson is not the only person in history to express the idea that people have some special qualities. Plenty of religious figures and philosophers have devoted their lives to contemplating the special qualities of people. Jefferson derived much of his political philosopher from John Locke and David Hume. Locke (1632-1704) lectured at Oxford on moral philosophy. He believed that people were governed by natural law and that government must be restrained by the sovereignty of the people. In 1825 the University of Virginia governing board recognized that Locke’s doctrines on government are one of the bases of the United States philosophy of government. Hume (1711-1776) was influenced by Locke.

Hume is the source for perhaps the most enigmatic phrase in the Declaration of Independence, "the pursuit of happiness." Hume saw the pursuit of happiness as a moral quest. Individual happiness depends on an unselfish regard for the general welfare of society. Right and wrong arise from a regard for the general welfare. Thomas Jefferson adopted this view when he said, "The order of nature is that individual happiness shall be inseparable from the practice of virtue."

The moral dimension of people cannot be duplicated in a corporation. Morality is part of the genetic history of people. Thomas Jefferson said it this way, " The Creator would indeed have been a bungling artist had he intended man for a social animal without implanting in him social dispositions. The paleontologist, Richard Leakey agreed when, in his book, Origins, he said, "cooperation is man’s adaptive dimension." Corporations are driven by very different considerations. Maximum economic return is the core principle of corporations. Shareholders can win a lawsuit against a corporation if they can prove the corporation did not maximize the economic return to the shareholders.

Yes, there is a distinction between people and corporations. That distinction is not a mere technicality or something of only esoteric interest. It is a fundamental issue that is at the heart of all our disputes with corporations. So it is perplexing that the learned justices of the 1886 Supreme Court would conclude that it was so self-evident that corporations are "persons." Perhaps if they had allowed argument on the subject they would have heard the opposing point of view. The longer we are silent on the point the more entrenched corporations become. There were people who spoke out against the ruling at the time. Their voices are now largely forgotten. Yet we take inspiration from them and rekindle the fight for personhood for people. We hope this argument finds resonance across this land and people reject the corporations insistence on a place at the table set for natural persons. We, at least, keep the struggle alive.

What we struggle for is control over our own lives. Control of our government, control of our places of work and control of our communities. Corporations have asserted that they are entitled to an equal voice in the determination of what is good in these areas because the Constitution gives them all the rights of "persons." How do we talk about the rights of persons in the same way as Locke and Jefferson if we include corporations as "persons." If corporations are "persons," how can persons be endowed by their Creator with unalienable rights? Corporations don’t have a Creator. Corporations are not sentient beings and cannot be endowed in the sense Jefferson used that concept. Thus we loose the sense of our own in-born power; the absolute right we have to control our governance by virtue of the fact that we are people. If corporations have an equal right to control our governance, then we must find some other explanation for the legitimacy of our self-government.

Perhaps this conundrum explains the declining participation in our democracy. People are certainly aware that they have lost control of the governance of their lives. They know it intuitively, but lack a reasoned explanation that gives them back some sense of their own power. The examination of corporate personhood and its links to the history of the power of wealth in this society may be that explanation. To simply voice the undeniable truth that corporations are not "persons" is an empowering act. It taps into the Quaker precept of speaking truth to power. It is a step to reclaiming one’s own legitimacy from someone who has usurped it. It acknowledges that illegitimate power cannot endure in the face of truth.

One of the strengths of our society is that truth eventually has its day. Somehow the will of the masses asserts itself. Our institutions have the capacity to facilitate input from various points of view and muddle toward a solution that incorporates a diversity of needs. We were not afforded that opportunity on the question of corporate personhood. The process was clearly flawed. Our society deserves the chance to get it right. Only a full airing and discussion of the subject can clear this blot from our collective thinking.

Corporations are given tremendous advantages in the realm of commerce. In return for those advantages, granted by our government, we are entirely justified to impose special obligations on corporations. If they do not want the obligations, then they can forego the advantages. It is fundamentally unjust that they take the advantages without accepting the obligations.

No discussion of imposing obligations on corporations in return for their advantages can proceed while there is corporate personhood. As "persons" they cannot be treated differently from natural persons. We cannot begin to discuss a simple step like banning corporate campaign contributions until corporate personhood is ended. The more complicated questions about the ways in which corporations and the corporate culture make decision that effect our daily lives are also impossible to address while corporations carry this protective mantle of corporate personhood.

Once we are able to shed the fiction that corporations are "persons" we can begin to think of corporations in their proper place – subservient to people. Once we are free to see them in that place, we can define our culture as we want to see it. We can resume self-governance.

California Center for Community Democracy