End Corporate Personhood
How Corporations Became 'People' - and How You Can Fight Back
Back in 2002, when I wrote the first edition of this book, most Americans thought the Boston Tea Party was a revolt against “excess taxes” and that “corporate personhood” was something the Supreme Court conferred on companies back in 1886. This book blew up both myths, pointing out that the Boston Tea Party was a revolt against the British government giving the East India Company the largest corporate tax cut in history (so they could unfairly compete with small colonial tea merchants) — basically a revolt against the Wal-Mart-ization of the colonies — and that the Supreme Court did not rule that corporations are persons and thus entitled to rights under the Bill of Rights in 1886 (it was a corrupt scam by a bribed SCOTUS justice and Court Clerk). In the 20 years since Unequal Protection first came out, this “new” knowledge is now widespread. With permission from the publisher, Berrett-Koehler, I’ll be sharing most of the book (the most recent updated edition) with you, one chapter at a time (and not always in order), over the next dozen or so Sundays. If you find it useful, forward or use parts of it in normal “fair use” fashion with my enthusiastic assent.
Arizona changed its law after 1886 so that the word person would include nonliving as well as living legal entities: “‘Person’ includes a corporation, company, partnership, firm, association or society, as well as a natural person.”
Many states have varying definitions of person depending on the part of law at issue. For example, there was a 1998 U.S. Supreme Court case in which a large part of the argument had to do with whether the Federal Trade Commission had the authority, under California law, to act as a person in enforcing a judgment against a telemarketer.
Limit-setting Legislation Isn’t Enough
As we’ve seen through the history of the Sherman Antitrust Act and other legislative attempts to control corporate behavior, the problem faced by citizens as well as directors and stockholders of corporations is systemic and rooted in how corporations are defined under the law.
Virtually every legislative session since the 1800s has seen new attempts to regulate or control corporate behavior, starting with Thomas Jefferson’s unsuccessful insistence that the Bill of Rights protect humans from “commercial monopolies.” Ultimately, most have either failed or been co-opted because they didn’t address the underlying structural issue of corporate personhood.
To solve this problem, then, new laws controlling corporations aren’t the ultimate answer. Instead what is needed is a foundational change in the definition of the relationship between living human beings and the nonliving legal fictions we call corporations. Only when corporations are again legally subordinate to those who authorized them—humans and the governments representing them—will true change be possible.
To bring this about will require a grassroots movement in communities all across America and the world to undo corporate personhood, leading to changes in the definitions of the word person.
I’m not so naive as to think that this is something that will happen quickly or easily or will start at a national level. It will begin with you and me, at a local level, and percolate up from there, just as every substantial reformation movement has, from the American Revolution to the trust-busting Populist Movement of Teddy Roosevelt’s era to the Civil Rights Movement. Change happens when citizens stand up and say “I won’t have it anymore.”
If history is any indicator, it won’t be a short or direct path. It may be in my children’s or their children’s lifetime that humans finally take back their governments and their planet from corporations, and it may even be generations beyond that, although the growing global climate crisis may galvanize people the world over to far more rapid action.
Along those lines sometimes the Constitution is amended quickly in response to an overall public uprising, as happened with the amendment to end Prohibition and the amendment to lower the voting age to eighteen, which was passed in response to the rage of teenagers being forced to serve in the Vietnam War over which they had no voting power.
Townships Fight Back
In 2001 several townships in Pennsylvania passed ordinances forbidding corporations from owning or controlling farms in their communities. “They chose to go that route instead of the regulatory route,” said attorney Thomas Linzey of the Community Environmental Legal Defense Fund (CELDF). “If we just got a regulation passed about, for example, odor from factory farms, then the entire debate from then on would be about odor. But what we want to challenge is the right for these huge corporate farming operations to exist in our communities in the first place.”
In December 2001, Gene Mellott, the secretary for Thompson Township, Pennsylvania, told me that his township had adopted several such ordinances, including “an ordinance forbidding confined animal-feeding operations from being owned and operated by a corporation” and “one that deals with corporations who have a previous history of violations, denying them access to starting up an animal-feeding operation.”
Mellott noted at the time of our interview that one farmer was actually going through the processes specified by the ordinance, cooperating with the township, prior to opening a new animal-feeding operation.
Other townships weren’t so lucky, though, Mellott said. “In one township the agribiz corporations threatened to sue the directors of the township, both as directors and personally. They didn’t have the personal funds to fight that, so they decided not to pass the ordinance.”
I asked Linzey how a corporation could sue a township official for proposing legislation, and he said, “They allege that the township officials are planning to infringe on their civil rights.”
“Yes, civil rights. Because they claim they’re persons, just like the township officials, so they can sue them, person to person, so to speak. That also immediately throws it into federal court, where the local officials will have to pay more for defense and won’t have the easy support of their local community.”
If corporations weren’t persons, they couldn’t use such forms of harassment to prevent local officials from trying to protect their citizens from what may be unpleasant corporate neighbors.
And that’s really the bottom line for township officials like Mellott, who said, “These ordinances were passed to protect our citizens [italics added] from pollution or side-effects of factory farms, water usage problems where they may draw down our reserves and making wells go dry—that sort of thing. We felt that a business that large should be regulated. I’ve heard the Farm Bureau is opposed to this, but the majority of the citizens of the township are in favor of them if they’re passed, and they’re the ones who elected us to represent their interests.”
In the decade since I wrote the first edition of this book, Linzey has been busy. CELDF has become one of the foremost organizations in the country advocating for the rights of humans over corporations. It has helped start a “Democracy School” that trains citizen-activists (and goes way deeper than this book into the history of corporate power in America) and has helped or inspired hundreds of communities to directly take on corporate personhood.
Here are a few headlines from www.celdf.org circa January 2010:
Maine Town Passes Ordinance Asserting Local Self-governance and Stripping Corporate Personhood
Spokane Considers Community Bill of Rights
PA Citizens Denied Ballot Question to Add Local Bill of Rights: They Sue County Board of Elections, August 28, 2009
Pennsylvania Town Fights Big Coal on Mining Rights
Pittsylvania County, VA Citizens to County Government: Ban Uranium Mining, or Step Aside and We’ll Govern Under a New County Constitution!
Beccaria Township Citizens Appalled: Elected Official Calls Constituents “Traitors” and “A Mob” for Claiming Citizens Have Rights and Corporations Do Not
Newfield, Maine Citizens Adopt Local Law to Stop Corporate Takeover of Ground Water
Ecuador’s Constitutional Assembly Calls on CELDF to Assist in Drafting Rights of Nature Language
The Right to Local Self-government: PA Attorney General Corbett Denies It Exists
As you can see, the battle continues. But more and more people are waking up to the issues, which in itself is progress!
Changing Local Laws First
So how do we make these changes? As with the family farmers in Pennsylvania with their and CELDF’s battle against corporate factory-farming operations that risk fouling their air, polluting their wells and river waters, and degrading their land, it will start at the local level.
I’ve helped fund an effort by attorneys Daniel Brannen and Thomas Linzey to check the laws of every single state in the union and Washington, D.C., to figure out how to best phrase local ordinances denying corporate personhood. You’ll find the proposed Model Ordinances to Rescind Corporate Personhood at www.thomhartmann.com; and there is a virtual encyclopedia of information on corporate personhood and what can be done about it at Linzey’s Web site, www.celdf.org.
In many communities you’ll have to get a city councilperson or other elected official to propose the law; in others, individuals themselves can place initiatives on ballots or before town meetings. Call your town hall to find out; ask, “How do I go about submitting a new law? What’s the process?” In so doing you will be joining all those down through the centuries who have initiated change in democracies around the world.
And just as those who worked for civil rights for specific groups of humans came up against resistance, there may be opposition to your proposal.
When Linzey helped local farmers and elected officials pass ordinances keeping corporate factory farms out of their communities, he said, “A ranking Republican state senator demanded that CELDF be banned from [speaking out in public] panels. The Farm Bureau actively interfered in one local government’s effort to pass the ordinance. And factory farm operatives began attending local government meetings.”
But that was just the beginning, Linzey notes. Next, “The Pennsylvania Chamber of Commerce became more active, doing what the Chamber is designed to do—painting people like me and public officials who believe in democracy as rabble-driven advocates of no growth and no jobs. The Chamber also labeled as ‘anti-agriculture’ residents who supported our ordinance.”
And then the corporate public relations (PR) machine turned itself on. Linzey says, “Our work made the cover of the Chamber’s monthly Advocate for Pennsylvania Business, with an article titled ‘There’s No Business Like No-Bizness in Wayne Township’ and a graphic of the township surrounded by barbed wire.”
Nonetheless, remembering former Speaker of the House of Representatives Tip O’Neill’s comment, “All politics is local,” there’s little doubt that the best strategy is to start where we humans live, town by town, city by city, county by county. Corporations may have corrupted many of our political processes, but you and I still retain the right to vote. The ballot box has the potential to be the great leveler, the remedy of past errors and current inequalities.
Changing State Laws
When enough local communities have passed laws denying corporate personhood, eventually a corporation will challenge one of these laws and it’ll end up before the Supreme Court. This could be a golden opportunity for the court to rectify the error made by reporter J. C. Bancroft Davis in his headnote for the 1886 Santa Clara case. If the Court were to rule that the Founders didn’t intend to give corporations human protections under the Bill of Rights and the Fourteenth Amendment, step one would be finished.
But if the Court rules that the new anti–corporate personhood laws are unconstitutional, it will be necessary to move up the ladder and amend the state and federal constitutions. To support that effort, you’ll also find ready-to-use draft amendments at www.thomhartmann.com.
I’ve spoken with a number of attorneys, constitutional scholars, and a few politicians about all this, and most agree that starting on a local level is probably best. But most also suggest that people should concurrently begin the process of amending state constitutions because corporate charters are issued and controlled by—in virtually all cases—the states themselves.
Making Change Happen
Taking on the conventional wisdom and a hierarchical power structure is no small or easy task. The Civil Rights and Women’s Rights movements tell us how true social change happens: from the bottom up. The Supreme Court, for example, doesn’t just go out and right social or legal wrongs. Instead legislatures pass laws, and people challenge those laws. When the challenges have worked their way up through the courts, they end up before the Supreme Court, which then has an opportunity to rule on the laws in the context of their relationship to the Constitution.
For humans to take back control of our governments by undoing corporate personhood, we’ll have to begin with the governments that are the closest and most accessible to us. It’s almost impossible for you or me to go to Washington, D.C., and have a meeting with our senator or representative—most of us usually can’t even get them on the phone unless we’re a big contributor. But most of us can meet with our city council members or show up at their meetings. Lobbying within the local community is both easy and effective. Local politicians are the closest to—and generally the most responsive—to the people they represent.
When enough local communities have passed ordinances that directly challenge corporate personhood, state legislatures will begin to notice. As with the issues of slavery, women’s suffrage, and Prohibition (among others), when local communities take actions that are followed by states, eventually the federal government will get on board.
An Opportunity for the Supreme Court to Now Right a Wrong
These new laws will surely meet with lawsuits, which will bring the question back to the courts. Just as the railroads themselves sought change in the courts, ordinary citizens across the land are standing up and saying, “This is not what we want.” It may take decades, as it did to create the wrong in the first place, but eventually the movement will lead to explicit legislation, or an amendment to the U.S. Constitution, or to the Supreme Court’s reversing the Santa Clara precedent as it has reversed so many other error-filled cases over the years.
The ultimate change would be to clarify that the Fourteenth Amendment’s reference to “persons” meant “natural persons” with what Locke and Jefferson called our natural rights as human persons.
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