Albion Monitor /Commentary

Kill the Corporate 'Person'

by Steve Russell

(AR) AUSTIN -- Professors have no money but we have access to sport that is unknown in the hurly-burly of commerce. One such sport is the privilege to speak heresy. I am about to claim that privilege.

Once upon a time, there were no corporations.

Because we could, in modern-speak, "grow" the economy better, we the people created corporations as a means of pooling capital while limiting individual liability. It worked. The economy grew.

Subspecies of corporations arose to answer particular needs: closely held for the family business, publicly traded to attract capital from strangers.

Corporations became Fourteenth Amendment "persons"

In the United States, corporations were creatures of state law. A corporate charter created rights and duties. Large corporations always chartered themselves in states where they would have more rights and fewer duties -- e.g., Delaware. In every state, corporations had to be "persons" in some sense of the law so that they could enter into contracts, employ people, sue and be sued, etc.

The United States Supreme Court decided some time ago with no serious analysis that corporate "persons" were "persons" within the meaning of the Fourteenth Amendment. The Fourteenth Amendment has been interpreted to apply most of the Bill of Rights to the States. (Most people do not understand that our most cherished freedoms were not originally protected from state governments. That is, a state was free to establish a religion, shut down a newspaper for heresy, and allow searches without warrant with no fear of the federal courts meddling in states' rights.)

When corporations became Fourteenth Amendment "persons," these creatures of state law acquired a whole raft of constitutional rights that human beings rather than corporations had bled for on fields of battle. So, freedom of speech was extended to commercial advertising. Freedom from self-incrimination, from unreasonable search and seizure came to mean freedom from having corporate property seized without due process of law. Holding a corporate citizen liable for criminal conduct became much more complicated than holding an individual citizen liable for criminal conduct, because of the esoteric rules of applying the Bill of Rights to a creature of human imagination.

Corporations, like governments, are immortal barring certain exceptional happenings. Corporate duties to account for money are set out by law and often honored in the breach. It is not uncommon for a corporation to outgun the federal government in court with more lawyers, more expert witnesses (both of whom may have been hired away from government) and, of course, rights against government that government does not have against its corporate runamoks.

Multinational corporations are laws unto themselves, rarely controlled by any nation

The multinational corporation has become a law unto itself. No one country can get a handle on these critters and few politicians dare to even propose that it be tried. It takes money to be a viable politician.

Here comes the heresy, then: amend the Constitution to declare the rights we all think of as individual to be only available to natural persons. If some individual wants to falsely state in an advertisement that nicotine is good for you, let him -- and then let the victims sue him for his shirt. At the same time:

  • Federalize the chartering of publicly traded corporations, leaving closely held corporations to the states. In our current economy, the Commerce Clause should provide authority for this.

  • Subject multinationals to public records requirements. Make it easier to know about the Asian woman who makes a shoe for $0.12 that sells for $80 dollars here. America once banned products made by child labor from importation. Anyone who wants to play in what is still the most affluent market in the world can refrain from child labor, convict labor, environmental depredations -- and any other policy that seems pernicious to a majority of the consumers in that market. There is no competitive disadvantage when everybody has to follow the same rules. There is a price increase.

    We can vote our morals or we can vote our pocket books, but as long as corporations are immortal, far richer than their victims, and better represented than government agencies, we won't vote at all.

    One more thought about corporate immortality. Some of the most greedy, grasping, exploitative and amoral capitalists in this country's history have become grandfatherly philanthropists as they aged. This is part of the human life cycle.

    Bouncing a grandchild on your knee one day seems more satisfying than making a deal; curing people becomes more important than gouging them for a new drug; you endow a university chair in memory of all the things you never had time to learn.

    Corporations do not experience the human life cycle. Had Ebenezer Scrooge been a corporate CEO, the three ghosts could have saved a lot of effort. Scrooge would never get his new policies ratified. If the old man gets soft, he is eased out in favor of a young warrior. Or burned for a heretic.

  • Steve Russell, a retired judge, teaches constitutional law at the University of Texas at Austin

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    Albion Monitor June 30, 1996 (

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