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Unincorporated Rights

The corporate person is a convenient myth, a mechanism of protection and profit.

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Conservative pundits might tell us that we can all breathe a sigh of relief that our fellow citizens, those worthy corporate persons, no longer will be repressed by a century of unnecessary and restrictive precedent preventing free corporate expression. They might argue that we should be thankful for the Supreme Court's decision in Citizens United v. Federal Elections Commission, which strikes down a law that limited what corporations could spend on campaign ads, reasoning that if the law limiting corporate spending were allowed to stand, it would be only a matter of time before we're all stifled — but that seems a bit of a stretch. It's the clear pattern of history as pseudo-historian Glenn Beck has suggested. Now that corporations have expanded free speech rights, it might be a good time to ask what kind of persons they are.

What has been the record of corporations since they were granted this significant change in status in the 19th century? Two Supreme Court cases, Dartmouth College v. Woodward in 1819 and Santa Clara County v. Southern Pacific Railroad in 1886, were central to the legal establishment of corporate personhood.  Though neither case is focused on corporate personhood, the obiter dictum in Santa Clara v. Southern Pacific suggests that the equal protection clause of the 14th Amendment (originally meant to protect freed slaves) also should apply to corporations. The term obiter dictum is Latin for something said in passing, extraneous comments that are not legally binding. And yet, here we are, bound by the consequences of the cyclically failing corporate person. If it were an individual, it would be in an addiction program by now — if not in jail.

In spite of the weak origin of corporate personhood, a central result of these cases has been our long-held belief in the mythology that a corporation really is a person just like you and me, requiring the same rights and protections that we have as individuals, regardless of their disproportionate wealth and power. In these cases, and in the Oxford English Dictionary, the words fiction and artificial are the key terms of relevance. The corporate person is a convenient myth, a mechanism of protection and profit. But the impact of this myth on us is very real when the shortsighted greed of corporations wrecks our economy again without penalty. What kind of person is that? Clearly persons with greater status than you or I have. 

Although the court's decision also supports the free speech of unions, the current weakness of union power only demonstrates the dominance of the corporate person's voice. Ultimately, the Supreme Court made an unnecessary decision — the corporate person already has plenty of free speech, as is evident in our tenacious faith in their mislabeled free-market system, even as its serious defects and regular crimes are reasons to question that faith.

There is no rational or realistic comparison between an individual American citizen and a corporation. It is simply a profitable and protective legal fiction. In spite of its falsity and the history of crime it has enabled, the corporate-person myth remains a deeply held belief that is vociferously defended and assumed to be patriotic. To the contrary, veneration of the corporation is an unnecessary obeisance to power that was not shared by our founders. For the first 100 years of American history, corporations were more strictly regulated by limited-duration charters. Early Americans realized that conglomerated power tends to become unaccountable and can threaten democracy whether that threat comes by state or corporation. It may be that today's hysteria about big government is more of a grass-roots smoke screen for big business than an actual threat.

The inscription under the dome of the Jefferson Memorial reads: “I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man.” Could one of those forms of tyranny be a corporate propaganda that causes us to defend the ill-behaved corporate person and expand its rights? Jefferson seemed to have some sense of the threat that corporations pose in a letter he wrote to George Logan, senator of Pennsylvania: “I hope we shall ... crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” Though he wrote in 1816, Jefferson describes our current crisis with surprising accuracy.

In spite of our deep faith in the corporate person, most of us are familiar with President Eisenhower's famous warning about the power of the military-industrial complex, validated most recently during the war in Iraq. If we consider the questionable actions and high cost of mercenaries such as those from Blackwater, or the questionable profiteering and disinformation of retired military brass such as Gen. Barry McCaffrey, who was paid by defense contractors to promote the war in Iraq, it's clear that Eisenhower's warning is right on target and we ignore it at great peril.

The power of the corporate-person myth moves us to believe in those corporations regardless of what they do. In an era of unprecedented corporate monopoly and criminality, and in the midst of a health-care debate derailed by ridiculous corporate free speech about a government takeover, our Supreme Court still ruled that corporations need even more free speech. One thing is certain, in Citizens United v. Federal Elections Commission, it's clear that the most important voice in America is that of the corporate person — not “We the people.”

Lee Carleton is assistant director of the writing center at the University of Richmond and a graduate student in media, art and text at Virginia Commonwealth University.

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