Restoring Government, of, by and for the People
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.
This is the last chapter excerpt of Unequal Protection. Next weekend we’ll start with The Hidden History of the War on Voting.
Can we reclaim the dream of freedom and individual liberty in the land of its birth? I believe we can.
Every culture and every religion of what we call the civilized world carries, in one form or another, a mythos or story about a time in the past or future when humans lived or will live in peace and harmony. Whether it’s referred to as Valhalla or Eden, Shambhala or One Thousand Years of Peace, the Satya Yuga or Jannat, stories of past or coming times of paradise go hand- in-hand with hierarchical cultures.
Such prophecies were clearly in the minds of America’s Founders when they first discussed integrating Greek ideas of democracy, Roman notions of a republic, Masonic utopian ideals, and the Iroquois Federation’s constitutionally organized egalitarian society, which was known to Jefferson, Washington, Adams, and Franklin. The creation of the United States of America brought into the world a dramatic new experiment in how people could live together in a modern state.
While most of the rest of the world watched this new experimental democracy with skepticism, the citizens of France took our revolution to heart and initiated the French Revolution just six years after ours ended.
America grew swiftly and steadily for nearly a century, and many other countries of the world began to experiment with their own versions of democracy. As America was convulsed by the Civil War, the world held its breath, but America remained intact and the period of industrialization following the war led to one of the most rapid periods of worldwide growth in history. This growth cemented for the world the concept of the American ideal, as millions escaped their homelands to settle in the new “land of oppor- tunity and freedom.”
Thus America has come to represent the world’s archetypal concept of freedom and egalitarianism. On May 29, 1989, twenty thousand people gathered around a 37-foot-tall statue in Beijing’s Tiananmen Square. They placed their lives in danger, but that statue was such a powerful representation that many were willing to die for it…and some did. They called their statue the Goddess of Democracy: it was a scale replica of the Statue of Liberty that stands in New York harbor on Liberty Island.
From the French Revolution in 1789 to the people’s uprising in Beijing in 1989 to the various “color” revolutions in former Soviet republics and Iran, people around the world have used language and icons borrowed from the pen of Thomas Jefferson and his peers. Even if we didn’t implement it fully in our early efforts, and even if it’s been strained since its inception, the Greek- Roman-Masonic-Iroquois-American idea of a government “deriving its just Powers from the Consent of the Governed” is probably one of the most powerful and timeless ideas in the world today. It is the Global Dream.
While there are pockets of those in the world who hate us and even foist terrorist acts upon us, there are billions more who desperately wish to embrace the principles upon which our nation was founded. We in the United States of America hold a sacred archetype for the world: the dream of freedom and individual liberty.
Change Is in the Air
Thanks to the hegemony of corporate personhood, that dream is in jeopardy. History, however, has shown that change is possible when citizens speak out and work to change the Constitution. In the previous century, a citizen-led effort resulted in the passage and the ratification of the Nineteenth Amendment, guaranteeing women the right to vote—despite long tradition and past court decisions. Similar efforts led to constitutional amendments banning, and then rescinding the ban on, alcohol. Most recently, the Twenty-sixth Amendment lowering the voting age from twenty-one to eighteen was ratified, in part in response to demands from servicemen and women in Vietnam and veterans of that war. And a popular protest song, “The Eve of Destruction,” was a prominent voice for this popular sentiment, proclaiming, “You’re old enough to kill, but not for votin’.”
More recently, a growing movement has begun in the United States to bring back the Global Dream, restoring human personhood to its rightful place at the top of the priority list. For example, on April 25, 2000, the city of Point Arena, California, passed a City Council Resolution on Corporate Personhood, “rejecting the notion of corporate personhood,” in which they “urge other cities to foster similar public discussion” on the issue.#1
As mentioned earlier, the Community Environmental Legal Defense Fund (www.celdf.org) has been working with hundreds of communities across the nation to fight corporate personhood. Other groups—such as Jeff Milchen’s ReclaimDemocracy.org and former Green Party presidential candidate and pro-democracy activist (and lawyer) David Cobb’s Democracy Unlimited of Humboldt County (www.duhc.org) and Campaign to Legalize Democracy (www.movetoamend.org)—are undertaking serious efforts to raise awareness about the issue. Even one of our recent vice presidents has taken notice and is shouting a call for change. Al Gore, in his book The Assault on Reason, writes:
The 1886 Supreme Court decision Santa Clara County v. Southern Pacific Railroad has been cited for decades—especially since the conservative takeover in 1980—to uphold the proposition that corporations are, legally speaking, “persons” and thus protected under the Fourteenth Amendment. It was one of many developments that marked the ascendancy of corporate power in both the economic and political spheres of American Life. By the end of the nineteenth century, the “monopolies in commerce” that Jefferson had wanted to prohibit in the Bill of Rights were full-blown monsters, crushing competition from smaller businesses, bleeding farmers with extortionate shipping costs, and buying politicians at every level of government.#2
The dream of egalitarian democracy in America as articulated in the Declaration of Independence (against the East India Company) has been taken captive, but it lives on. Today the captivity is so obvious that as the twenty-first century began people protested in Seattle and Genoa, facing police beatings to register their hope that the dream be reawakened. They faced risks similar to those of the Americans who stood up against tyranny at the Boston Tea Party and have continued to do so at every major meeting of world leaders and multinational corporate heads.
Fighting the New Feudalism
As Richard Cohen noted in a January 21, 2002, article in the Washington Post about the Enron debacle, “What we have here is an updated form of feudalism.”#3 And like the feudal systems that held Europe, Asia, South America, and Japan in their grip for centuries, this new feudalism isn’t going to easily submit to transformation or simply morph back into the representative republican democracy from which it emerged and has now largely taken over.
Instead it will fight back, and if Alexis de Tocqueville was right, the main tool it will use will be the media it owns or has easy access to with its advertising and PR dollars, keeping people passively lulled into the twin beliefs that they are powerless and that the world’s largest corporations do know, after all, how to run the planet and therefore everything is just fine and there’s no need to worry about or do anything.
But no matter how much they try to convince us that “global warming is a good thing”#4 or “toxic sludge is good for you,”#5 humans know. Thomas Paine said it best: individual persons should be more powerful than any other institution.
“It has been thought,” he wrote in The Rights of Man in 1791,
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.#6
We’ve figured out that Paine’s ideals and dreams, and those of Jefferson and Madison, Washington, and Adams—even allowing for their differences— have been stolen.
Change Starts at the Grassroots
To reclaim the dream, we need to be fostering grassroots efforts to fight corporate personhood.
Many of the problems of corporate personhood could be solved—or at least begin to be solved—by the passage of an amendment to the Fourteenth Amendment to insert the word natural before the word person or by the passage of a standalone amendment that explicitly states that only humans have human rights and that corporations and other artificial forms of organization don’t.
Article V of the U.S. Constitution states that a constitutional amendment may be offered to the states for approval when it’s been approved by two-thirds of both the House of Representatives and the Senate or submitted to the Congress by two-thirds of the states. To become law and actually amend the Constitution, three-quarters of the states must then approve, or ratify, the amendment. Those two-thirds and three-quarters thresholds have proven a substantial (and intentional) obstacle to changing the Constitution of the United States.
As of this writing, the most recent successful amendment to the Constitution became law in 1992, an amendment to ensure that when legislators vote themselves a pay raise, they don’t enjoy the benefits of it until after the next election cycle. More than eighteen thousand amendments have been proposed in Congress, but since 1789 only thirty-three have emerged with the required two-thirds majority of both the House and the Senate (or submitted by the states) to be passed along to the states for ratification. Of those thirty-three only twenty-seven have been ratified into law by three-quarters of the states.*
As with nearly all social movements, most of these started at a grassroots level and grew from there. People passed or defied laws on a local level that echoed all the way up to the federal legislature or Supreme Court. The effort to again put people first in America and the rest of the free world will no doubt work in the same way. As anthropologist Margaret Mead said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”#7
Nonetheless a grassroots revolution won’t be rapid or easy. Consider the history of another group who set out to establish equality in America: women of the Revolutionary Era and their successors.
The Battle for Human Rights as a Model
The history of the Women’s Rights Movement, like that of the Civil Rights Movement, is complex and well beyond the scope of this book, but it claimed its first major victory in 1920 with the passage of the Nineteenth Amendment, which gave women the right to vote.
But that was just the beginning. A hundred and one years after Susan B. Anthony was arrested for casting a vote, the U.S. Supreme Court referenced the Fourteenth Amendment a total of seventeen times regarding people in the 1973 Roe v. Wade case, as the Court finally decided that men don’t have the power to control the behaviors of women. That decision, combined with broad changes in public sentiment and corporate behavior, effectively overturned the 1873 Bradwell v. State Supreme Court decision which had said that “the Law of the Creator” defined the “paramount destiny and mission” of women as limited to “the noble and benign offices of wife and mother.”
The process began with a small group of dedicated people, and America and the world are the better for it, even as the Women’s Rights Movement continues to work for full equality in the United States and recognition in those nations where women are still in slavery under religious law or male-dominated dictatorships.
Similarly, as Martin Luther King Jr. and Mohandas Gandhi well understood, changing laws is a process that requires enormous and broad grassroots support. Recent events have shocked and awakened many people in the world, and expressions of a desire for change—from riots at WTO meetings to tectonic shifts in the politics of nations—are increasingly obvious.
But many of these efforts to protest globalization or poverty or corporate crimes are less than effective because they attack the symptoms of the problem rather than its cause.
The new feudalism is not the result of bad people or even bad corporations. It’s the result of a structure that’s broken down. A system of laws put in place in the United States and other nations in the late 1700s and early 1800s that had controlled the size, power, and political influence of the newly emerging business corporations was thrown aside first by the pen of J. C. Bancroft Davis in 1886 and then by hundreds of other advocates of corporate power and great wealth, from the railroad tycoons and robber barons to many of the members of today’s Supreme Court and Congress.
At its core it’s the result of a dysfunctional cultural story—that corporations are persons—and that is the level at which it must be healed.
Our best hope for changing the current situation of the world is in restoring the story and the vision of Jefferson and Madison—that corporations (and governments and all institutions) are subservient to the will of We the People. Restoring the control mechanism for this—effectively struck down by the Santa Clara ruling—means changing our laws and, ultimately, probably will require amending our Constitution.
What should our new Constitution look like? Several proposals are on that table, but I particularly recommend the models put forth by Jeff Milchen and David Cobb. Jeff’s Web site, www.reclaimdemocracy.org, is one of the leading resources on the issues of corporate personhood; and David’s site, www .movetoamend.org, incorporates Jeff’s proposed Constitutional amendment below as well as several other options. Milchen’s proposed constitutional amendment, more explicitly than simply inserting the word natural before the word person in the Fourteenth Amendment, could seriously begin the process of turning the United States into a democratic republic responsive and responsible to its citizens instead of its most powerful corporations. The proposed amendment states:
Section 1. The U.S. Constitution protects only the rights of living human beings.
Section 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.
Section 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.
Section 4. Congress shall have power to implement this article by appropriate legislation.
Other variations on this amendment, some simpler and some more complex, can be found at www.movetoamend.org.
Prepare for SCOTUS Resistance
Grassroots groups who mobilize to defeat corporate hegemony should prepare to encounter a hostile U.S. Supreme Court. The Constitution does not give the Supreme Court the power to strike down laws as “unconstitutional” or to interpret the Constitution in their own unique way (which invariably changes from Court to Court). As noted earlier, that power was taken on by the Court in 1803 by Chief Justice John Marshall in the case of Marbury v. Madison and caused then-president Thomas Jefferson to cry out in anguish that the single unelected branch of government had taken onto itself such power that the Constitution itself was now in danger.
Eighteen years later former-president Jefferson still saw an unelected Court with the power to overrule Congress and the president as a threat to democracy in America. On November 23, 1821, in a letter to his old friend Nathaniel Macon, one of the most outspoken of the Founders against the power of the Marshall Court, Jefferson wrote: “Our government is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary; the two other branches, the corrupting and corrupted instruments.”#8
And by granting corporate personhood—a doctrine never ever laid out in legislation, state or federal, and never proposed by any president—the unelected Court has led us directly to Jefferson’s corrupting consolidation of power in the hands of transnational corporate “persons.”
The Court has occasionally used this power, which was not explicitly granted to it in the Constitution, to be ahead of the curve of social change, beating federal legislatures to the punch on things like desegregation of schools in 1954 (Brown v. Board of Education of Topeka) and legalizing birth control in 1965 (Griswold v. Connecticut) and abortion in 1973 (Roe v. Wade).
On the other hand, it has also used the power in very regressive fashions, striking down as unconstitutional laws that protected unionization (Adair v. United States, 1908), a minimum wage (Adkins v. Children’s Hospital, 1923), and full rights of African Americans (Dred Scott v. Sanford, 1858, and Plessy v. Ferguson, 1896).
Since Marbury in 1803, the “solution” to the “problem” (perceived by both the right and the left) of the Court’s overreaching power has been either to amend the Constitution (the one thing to which the Court must defer) or to elect a president who would appoint Supreme Court justices more in tune with the times.*
British history offers one potentially useful legislative solution that I’d strongly recommend reviving (though perhaps without the snakes): the “Bubble Act” was the first and arguably last pushback against corporate power in the United Kingdom. It was desperately needed, and it worked for as long as citizens let it stand.#9
When the British East India Company was incorporated in 1601, it was the first of many. By 1710 corporations were being created left and right in England, and the following year one particularly toxic one—the Enron of its day—was formed: the South Seas Company.
Like Enron or AIG, the company was running a series of major “betting” (“insurance” or “derivitive”) scams, and like Enron and AIG its stock value exploded—only to crash in 1720, a crash so bad that it endangered the entire British economy.
Mobs turned out in the streets of London and other British cities. John Blunt, one of the company’s more high-profile directors, was shot dead. A member of Parliament publicly called for the rest of the directors of the company to be sewn into bags along with snakes and drowned in the Thames.
Like in 1929 and 2008, average investors were rushing into the growing stock market. “Women sold their jewels” to buy stock in the company, and the well-off like Jonathan Swift were burned terribly when the company crashed in 1720—bringing with it the entire British stock market. Swift even wrote a famous poem about the experience, titled The Bubble.
Parliament responded to the entire mess by making illegal all corporations except those, like the British East India Company, that had been explicitly chartered and authorized by Parliament itself. The 1720 “Bubble Act” lasted more than a century, until corporations engineered its repeal in 1825.
The question Americans face now is whether our politicians have the power and the will to pass this nation’s and this generation’s equivalent of the Bubble Act (or a variation thereof) or whether corporate power—particularly given the recent Citizens United case—has grown so great that it is now impossible for any politician to step out of line without getting politically squashed like a bug. There is in fact recent precedent for just that, in a time when corporations had even less legal power (but, arguably, more extralegal power) than they do today.
An American Coup Attempt
Similarly, in the mid-1930s in the United States, following the Roaring Twenties stock market bubble that ended in the Great Crash of 1929 and the Republican Great Depression, President Franklin D. Roosevelt directly took on corporate power in the United States for the first time since the presidency of Zachary Taylor.
The corporate response was ferocious, and the memory of that may be why no president since has followed in Roosevelt’s footsteps.
The summer of 1934 was a watershed. In July of that year, the cover story of Fortune magazine sang the praises of Mussolini’s new economic/political invention. The opening paragraph read:
“Fascism is a religion,” says Mussolini. And he also says, “The twentieth century will be known in history as the Century of Fascism.” To look at these two statements and then to realize that Fascism has all but conquered half of Europe and part of Asia is to wonder whether Fascism is achieving in a few years or decades such a conquest of the spirit of man as Christianity achieved only in ten centuries.
The article closed with this summary, reflecting an opinion held by many of America’s business elite. After qualifying that, “No 100 percent journalist can be more than a few percent Fascist,” the magazine’s concluding paragraph said: “But the good journalist must recognize in Fascism certain ancient virtues of the race, whether or not they happen to be momentarily fashionable in his own country. Among these are Discipline, Duty, Courage, Glory, Sacrifice.”#10
As General Motors was building trucks for Hitler, and IBM was helping him organize lists of Jews across Germany, a group of American businessmen decided to stop Franklin Roosevelt from trying to limit the power of their corporations.
August 22, 1934, was a beautiful summer day in Philadelphia. The sky was clear, the afternoon air 81 degrees after a comfortable 68-degree overnight. The nation’s most famous and highly decorated Marine general, Smedley Butler, walked through the sunny afternoon to the Bellevue Hotel, where, in the elegant lobby, he met a bond trader by the name of Gerald MacGuire.
Retiring to a quiet corner of the hotel’s café, the two men talked. MacGuire explained how a group of businessmen wanted to organize as many as a half-million military veterans to come together with Butler as their leader and overthrow Roosevelt as president. “We might go along with Roosevelt and then do with him what Mussolini did with the king of Italy,”#11 MacGuire told Butler, going on to say that the group of businessmen he represented could put $3 million on the table that day and had up to $300 million if necessary (well over $300 billion in today’s money).
MacGuire was employed by Grayson Murphy, the director of the American Liberty League, a group incorporated to “generally foster free enterprise,”#12 whose executives were also executives at J. P. Morgan and DuPont, with funding from “the Pitcairn family, Andrew Mellon Associates, Rockefeller Associates, E. F. Hutton Associates, William Knudsen of General Motors, and the V. Pew family.”#13
Butler turned down the offer and went public with the plot, stopping it in its tracks. Congress held hearings into it for a few days, but Roosevelt stopped them, concerned that with all the publicity others may get the same idea and try to end his presidency. As a result, most Americans today don’t even know about the very real and serious plot to overthrow constitutional democracy and replace it with fascism in the United States of America.
Today many politicians avoid the threat of a coup—or of being destroyed politically by an industry carpet-bombing the nation with television advertising, as the health insurance industry did in the first years of the Clinton administration—by publicly being populists but legislatively going along with the biggest corporations in America.
Pushing Back against Third Way Politics
In the decade following the “Reagan revolution” in the United States and the “Thatcher revolution” in the United Kingdom, both Tony Blair and Bill Clinton faced a problem. The traditional constituencies of both Labour in the U.K. and the Democratic Party in the U.S. had been organized labor—unions; and when Reagan declared war on organized labor by busting PATCO in 1981, and Maggie Thatcher took on and beat Britain’s largest and most powerful union (the coal miners) in 1984, by the early 1990s organized labor was on life support.
Corporate support had gone totally in the direction of the Conservatives in the United Kingdom and the Republicans in the United States, and the amounts of money it was starting to cost in the new TV era to run a national campaign (particularly in the U.S.) were beyond what could be raised just from a union and union-household base.
So Blair and Clinton came up with something new. Blair coined it “Third Way” politics, renaming his faction of his party “New Labour,” while Bill Clinton’s “Third Way” meant plugging himself into the Democratic Leadership Council (DLC) and calling himself a “New Democrat.” What both meant was that while they still spoke up for the little guy, they were mostly for sale to the highest corporate bidder and would ensure that the wheels of industry were well greased.
Blair continued the pressure on the unions, while Clinton famously “ended welfare as we know it” and rolled back other New Deal and Great Society programs that both conservatives and corporations found offensive.
Banks and investment houses in the United States were allowed to merge in 1999 when the Gramm-Leach-Bliley Act blew up Glass-Steagall; and in 2000, with the passage of the Commodities Futures Modernization Act, these now-can-gamble banks were allowed to “invent” a new “commodity” they could sell in virtually unlimited fashion: bets on bets on bets on mortgages called credit default swaps and collateralized debt obligations. The economy boomed, or at least seemed to until the bubble inflated in 1999 burst in 2008.
One of the strongest forces supporting the continuing domination of corporations over our nation is the misplaced faith in toxic Third Way politics, in which Democratic politicians accomplish traditionally Republican goals of increasing corporatism. Sometimes it gets hard to tell who’s who on the scorecard.
For example, during the big health-care debate of 2009/2010, forty-two Republican state legislators in Florida united their efforts to amend the Florida Constitution to exempt the state from any health-care reforms that the Obama administration may pass. In this they were following the efforts suggested by the American Legislative Exchange Council, which had already helped get such constitutional amendments or laws on the legislative agendas of fourteen states—before any healthcare legislation had even been voted on by both houses of Congress.
In the last week of 2009, David D. Kirkpatrick, writing for the New York Times, pointed out some troubling dimensions of these actions. In his article, “Health Care Industry Takes Fight to the States,” Kirkpatrick wrote that the forty-two Florida Republican legislators “were almost all recipients of outsize campaign contributions from major health care interests, a total of about $765,000 in 2008…”#14
And the American Legislative Exchange Council? “Five of the 24 members of its ‘free enterprise board’ are executives of drug companies and its health care ‘task force’ is overseen in part by a four-member panel composed of government-relations officials for the BlueCross BlueShield Association of insurers, the medical company Johnson & Johnson and the drugmakers Bayer and Hoffman–La Roche.”#15
Every industrialized country in the world—and some not so industrialized, like Costa Rica (which has lower healthcare costs than the United States and better outcomes)—has defined health care as a right rather than a privilege. Rights are defended by governments; it’s one of the main reasons for creating governments, along with defending the commons.
Historically in the United States, conservatives and liberals differed—in terms of public policy—on one major philosophical point. Both agreed that the U.S. government was founded on the principle of protecting rights and the commons, commonly referred to as the “public good”—the “general welfare” that is spelled out twice in the Constitution—but conservatives and liberals historically looked at the dimensions of that public good, and how it should be protected and delivered, in very different ways.
Conservatives felt that government involvement in the public good should be limited to police and the military. Most were even wary of public schools and fire departments, preferring to let corporations handle such functions.
Liberals, on the other hand, felt that the public good included a wider array of public services, including the right to health care, education, freedom from hunger and homelessness, and, of course, police and the military. All of these functions, liberals believe, are among the obligations of government and thus should fall within the functions of government rather than private corporations.
But when Third Way politics began to arise in the 1980s, it brought with it the curious doctrine that all government functions—even the military and police—could be better handled by private corporate interests than by government itself, that government was inherently an evil force that never produced any good whatsoever, or at least when it tried it did so inefficiently. Therefore the military should be augmented by, and ultimately replaced by, private mercenaries. The Postal Service should be privatized. Ditto for Social Security and Medicare and public schools.
At their core Third Way politicians assert that the liberal perspective on the responsibility of government is correct—government should make sure that people are free from fear of illness, homelessness, and hunger and have access to a good education. But, unlike traditional liberals, they believe that all of these functions should be paid for by the government but actually provided by private corporations.
In this the Third Way movement represents a merging of business and governmental interests; it offends conservatives because taxes must be raised to pay for all these things, and it causes liberals to talk of Mussolini’s “corporate state” because of the close merger of corporate and political interests.
Bill Clinton pursued Third Way politics by transforming welfare into workfare, pushing the charter school agenda, proposing a government-paid- for but privately run health-care system (which was not passed), pushing through Congress the GATT and NAFTA agreements, and embracing the use of private contractors for military operations. President George W. Bush, while publicly saying that he was a conservative, continued and dramatically expanded the Third Way initiatives of Clinton, although he did so in such a fiscally irresponsible way that he turned an inherited budget surplus into the largest budget deficit in the world and in the history of the United States.
President Barack Obama has continued many of Clinton’s and Bush’s programs, along with promoting more Third Way programs such as his healthcare initiative, which could end up with American workers in the middle class paying more to private insurance companies every year than they pay in taxes.
The Third Way is ultimately toxic to democracy. On the other hand, given how an unelected Supreme Court has so fundamentally changed the historic relationship between We the People and corporations, it’s about the only way that Democratic (or Republican) politicians can raise enough money to win elections. Even ethical Democrats find themselves in a terrible bind.
This is why it’s so important to roll back these Supreme Court decisions and why the most effective way to do that will be a constitutional amendment unambiguously asserting that corporate persons are not the same as human persons, the latter having “rights” while the former have only those “privileges” that We the People choose to confer on them—and that one of the rights that corporations do not have is “free speech.”
Then the Big Work Begins
Once corporations are again under the authority of We the People who sanctioned their formation, the real work begins. A whole realm of issues will then become truly open for honest and vigorous debate.
The entire spectrum of human issues that humans should discuss with the governments they have empowered to represent them will once again be open for debate: this is the really vital work that must be done but which cannot be done freely until Santa Clara and all her heirs are reversed, whether by Supreme Court decree or by citizens joining together to replace the word “persons” in the Fourteenth Amendment with the phrase natural persons.
Because Santa Clara and its derivatives have been with us for more than a century, correcting it won’t instantly change common and case law, but it will provide a basis for us to begin making the changes that could reinvigorate both democracy and free enterprise—and not just in the United States but across the world in the many nations where democracies thrive.
As America goes, to a large extent so goes the world, and it’s been that way ever since France followed the American colonists by just six years in revolting against royal institutions that denied human rights to all individuals and reserved them for the rich and powerful.
Alastair McIntosh, a Fellow of the Centre for Human Ecology in Edin- burgh, Scotland, points out on his Web site that a multinational corpora- tion recently demanded protection from Scotland’s Court of Session (the Scottish supreme court), claiming Article 6 of the European Convention of Human Rights.
“Mammon [material wealth] got up in court and claimed human attributes,” McIntosh writes. “It makes instant mockery of our new human rights protection.” He points out that the trend of corporations claiming human rights “can be traced across the Atlantic to the case of Santa Clara County v. Southern Pacific Railroad, 1886.”#16
While the exact language of the amendments proposed in this book may not be applicable in all nations that claim democratic principles, similar ones can be passed. It is my hope that this book will inspire people around the world to come up with their own, appropriate language and begin the process of local and national legislative reform in their own nations.
As with the Twenty-sixth Amendment (giving eighteen-year-olds the right to vote), we may get lucky. It could be that so many people are motivated to restore the balance to public discourse that change will happen quickly.
Let Us Begin
The process of reclaiming our lives from corporate domination will most likely take time, and it will surely be fraught with dispute and unintended consequences. Who could have guessed, for example, that a constitutional amendment to free the slaves would end up empowering corporations?
When I was very young, I first discovered the writings of Thomas Jefferson. It was about the same time I was reading Henry David Thoreau and Ralph Waldo Emerson, and I was entranced with the thoughts of the Transcendentalist Movement in early America. I was touched by Thoreau’s vision of the natural world, Emerson’s notions about an understanding of the eternal, and Jefferson’s romance with the idealisms of his Saxon ancestors; the idealism of all three seemed made of the same cloth.
As Emerson said in 1842, “The light is always identical in its composition, but it falls on a great variety of objects, and by so falling is first revealed to us, not in its own form, for it is formless, but in theirs; in like manner, thought only appears in the objects it classifies.”#17
I’m convinced that the light of idealism and hope is within all of us. In some it shines as the noble desire to build institutions that may both help humanity and enrich the helpers; a desire that, it seems, sometimes extends beyond prudence. In others it shines as the light of a passion to protect loved ones or the natural world of which we are a part.
Addressing the conflict between these two, Emerson added, “Amidst the downward tendency and proneness of things, when every voice is raised for a new road or another statute, or a subscription of stock, for an improvement in dress, or in dentistry, for a new house or a larger business, for a political party, or the division of an estate, will you not tolerate one or two solitary voices in the land, speaking for thoughts and principles not marketable or perishable?”#18
As Delphin M. Delmas reminds us in his impassioned 1901 defense of the California redwoods, and Gilgamesh’s six-thousand-year-old ghost tells us in his tale of weather changes and the destruction of a civilization by commercial practices, this is not a new debate. These are, to again quote Emerson, “but the very oldest of thoughts cast into the mould of these new times.”
Rescinding corporate personhood is the first step toward a larger vision of reclaiming and reinvigorating democracy around the world. It is a noble effort, but not the only effort. It is a start, not an end. And if we are to respond usefully to its challenges and to its perhaps unintended consequences, we must do so in the context of the larger vision of egalitarian society and the principles upon which the first democratic republics were founded. (On my Web site at www.thomhartmann.com you’ll find a list of grassroots organizations working to end corporate personhood.)
As John F. Kennedy said about the ambitious goals he set for his new administration, “All this will not be finished in the first 100 days. Nor will it be finished in the first 1,000 days, nor in the life of this Administration, nor even perhaps in our lifetime on this planet.
“But let us begin.”