Thom Hartmann (thomhartmann) Sun 23 Feb 03 06:32
As to the "what rights should [fill in the blank for institutions] have," my answer is that all institutions should (and most do) have only privileges and none have rights - rights are the sole domain of humans. As to what the privileges should be, I don't take a postition other than to say that when humans only again have human rights, then it will be possible for humans in a democracy to determine through an uncontaminated democratic process what privileges they/we want to grant to which types of institutions.
Michael Edward Marotta (mercury) Sun 23 Feb 03 11:17
"Human rights are for humans." Dolphins, whales, gorillas, chimpanzees... Vulcans, Klingons, Romulans... The essential distinguishing characteristic of a "human" is that it posesses self-awareness and free will. Argue those all you want. If you invalidate them, you invalidate all "natural" rights and reduce all "human" rights to contract. If it can be demonstrated by a Turing test that an entity cannot be distinguished from a human, then then entity is accepted as human. We have for almost 50 years joked about the mail we get from companies. That puts corporations in the starting blocks for a race to humanity. If, as above, you can invalidate self-awareness and free will and therefore "natural" rights, then corporations can -- and indeed do -- have all the rights they can contract for. Has anyone participating here taken tinymonster's pointer in 20 and visited the AI topic in Science? Adam Link awaits your verdict. (and R. Daneel Olivaw stands in the back of the courtroom to hear it.)
OZRO W. CHILDS (oz) Sun 23 Feb 03 15:25
I don't think my question was answered, other than perhaps to label as "privileges" the rights possessed by corporations. I guess if it's a "privilege", the right can be taken away by legislative fiat. So: How about the most basic right for any business or any person in business: The right not to be deprived of one's property without due process of law? Of course, "due process" does not preclude taxing corporations according to a uniform schedule. But it would preclude taking property by eminent domain and not paying for it. In a similar vein, equal protection of the laws would not preclude taxation, but it would preclude deciding to tax General Motors at a 55% rate while taxing Ford at a 20% rate on the same income. Assuming that corporations are in fact a useful and essential method of nurturing capital and producing wealth and employment, what would be the effect on the economy if every corporation knew that its property was at risk if, say, it attracted unfavorable publicity? Heck, instead of suing Chevron for an oil spill, Congress should just pass a law confiscating 10% of its assets. If corporations do not have rights, what reason is there to invest in them, and therefore in the economy? By the way, what authority is there for the proposition that unions and churches do not have rights? Churches are generally corporations or can choose to be treated as if they were corporations. Unions are generally not incorporated, but it is hard to imagine what rights they cannot exercise that a corporation can exercise, *as an organization*. They have bank accounts, own property, can sue and be sued, can speak as an organization, and if there are differences in regulation, it is because Congress has thought that a membership organization owes different kinds of obligations to its members than a corporation owes to its shareholders. Union members can't sell their memberships to a corporate raider if they are dissatisfied with the way the union is being run, and need more protection.
Albert (adaniels) Sun 23 Feb 03 20:39
> my answer is that all institutions should (and most do) have only privileges and none have rights - rights are the sole domain of humans If corporations are to have privileges rather than rights, what protects them from the whims of politicians? I know that in today's political climate, corporations have more than enough clout to do that. But if they had only privileges, much of that clout would dissipate. I tend to agree that something should be done to mitigate the power (political and economic) that corporations hold. I just think that we need to be careful about what that "something" is. Do we need a "Bill of Corporate Privileges"?
the invetned stiff is dumb (bbraasch) Sun 23 Feb 03 21:17
I think the point is that if they are given the priviledge to operate in the public good and are found to be operating against the public good, they lose their priviledge. This is the same thing that would happen to you if you are for example convicted of drunk driving. In fact a whole lot of it happens if you are charged with drunk driving. It would certainly add some discussion to the board meetings, I think, if one of the outcomes of an action would be the termination of the business due to loss of charter.
dotcompost (app2bcom) Mon 24 Feb 03 07:13
Why isn't there a death penalty for corporations? A simple question, but one that exposes a flaw in 'equating' persons and corporations. The same flaw you find when you unravel the endgame of "But what happens when the "person" lives forever?" The advantage of accumulating equity. A reverse approach to the solution. The "four-year-life-span" solution to the replicant problem in "Blade Runner." The Tyrell Corporation exercised it's power, it's advantage, over it's creation, it's tool. Very simply, we-living-persons can exercise our power, our advantage, over our creations, our tools, and apply a containment strategy to the potential malevolence of rogue corporations. If we don't use our leverage, we'll share the fate of the replicants, and be reduced to the caricature "more human than human."
Wild Bill Burrows and his friend G-Man (gjk) Mon 24 Feb 03 07:20
The federal sentencing guidelines have a "corporate death penalty," FWIW. If your state doesn't have one -- get one!
Gail Williams (gail) Mon 24 Feb 03 09:48
A corporate death penalty? For what crimes, Jack? Has it ever been exercised?
Wild Bill Burrows and his friend G-Man (gjk) Mon 24 Feb 03 10:29
Any corporate crime, if it causes enough "loss," can merit the corporate death penalty. Put simply, if the criminal act(s) cause enough harm (which is measured in dollars under the guidelines) such that restitution and the fine far exceed the company's value, the court can essentially sentence it to "death" by ordering its assets forfeit. Payment of restitution has priority, then any tax liabilities, then the criminal fine, then other creditors, etc. Sort of like a forced bankruptcy imposed as part of a criminal proceeding.
dotcompost (app2bcom) Mon 24 Feb 03 11:43
leaving the option of "buying your way out" in a much larger sampling of instances?
dotcompost (app2bcom) Mon 24 Feb 03 11:58
"nothing that the god of biomechanics won't let you into heaven for" I would love to see that established as the corporate equivalent of the "may god have mercy on your soul" benediction. [love that scene!]
Thom Hartmann (thomhartmann) Mon 24 Feb 03 14:10
This is actually a large issue. Prior to the chartermongering era of the 1890s, it was quite common for corporations that broke the law to get a death sentence - the revocation of their charter. Also, stockholders, directors, and officers could, in many states, be personally and criminally held liable for the actions taken by the corporation. Although these last were rare laws, nearly all states had laws that stockholders were responsible for wages even in the event of bankrupcy. There's a movement in California to get the Attorney General to de-charter one of the big oil companies for their crimes. The problem is that de-chartering is probably not the most useful way to deal with corporate crime any more; it punishes innocent employees who lose their jobs when the corporation dissolves, yet the stockholders and officers usually bail out okay, keep their assets intact, and reconstitute a new corporation. The movement to require state corporate charter laws to include language as they did in the 18th century that the corporation must first serve its community is picking up some traction, as is the movement to end corporate personhood. I can post a piece I wrote about Porter Township if there's an interest here in that. And there's a ton of good information about corporate personhood in the links off www.unequalprotection.com and at www.reclaimdemocracy.org. Thom
Wild Bill Burrows and his friend G-Man (gjk) Mon 24 Feb 03 17:59
Indeed, but de-chartering is the responsibility of the state in which the company is incorporated. A state attorney general can of course revoke the corporation's license to business in that state, but can't kill the multi- state-headed hydra. However, states that emulate a federal sentencing guidelines scheme after the U.S. sentencing guidelines -- not that I'd ever advocate such a thing, but it has it's attraction -- could conceivable put a multinational corporation out of business for sufficiently egregious conduct. It's not just breaking the corporation's sword and tearing off its epaulettes; it's putting its head in the guillotine and cutting the rope.
dotcompost (app2bcom) Tue 25 Feb 03 02:17
something akin to separation of corpus and pate
Thom Hartmann (thomhartmann) Tue 25 Feb 03 07:16
Interesting. So far as I know, most if not all American corporations are incorporated in one single state (Delaware for about half of the Fortune 500), and are licensed to do business "as a foreign corporation" in every other state. In the California case, that particular oil company is incorporated in California, which is why that state's AG is being pressed.
The Phantom of the Arts Center (tinymonster) Tue 25 Feb 03 09:04
Delaware!? Who knew.
Jon Lebkowsky (jonl) Tue 25 Feb 03 14:05
I never completely understood the Delaware thing, Thom. Is there some tax advantage if you file there?
Thom Hartmann (thomhartmann) Tue 25 Feb 03 14:51
Through most of the 18th and 19th centuries, states were moving to restrict corporate activities by placing limits on the term, activities, and powers a corporation could take in their charter of incorporation. When Ohio broke up the Standard Trust in 1892, Rockefeller and other corporate giants with similar problems began looking for states where they could re-charter their corporations without all the restrictions that Ohio and most other states had placed on them. New Jersey was the first state to engage in what was then called chartermongering changing its corporate charter rules to satisfy the desires of the nations largest businesses and today is still one of the most liberal of all states with regard to corporate charters. In 1875 its legislature abolished maximum capitalization limits, and in 1888 the New Jersey legislature took a huge and dramatic step by authorizing for the first time in the history of the United States companies to hold stock in other companies. In 1912, New Jersey Governor Woodrow Wilson was alarmed by the behavior of corporations in his state, and pressed through changes [that took effect in 1913] intended to make New Jerseys corporations less favorable to concentrated financial power. As New Jersey began to pull back from chartermongering, Delaware stepped into the fray, by passing in 1915 laws similar to but even more liberal for corporations than New Jerseys. Delaware continued that liberal stance to corporations, and thus, as the State of Delaware says today, More than 308,000 companies are incorporated in Delaware including 60 percent of the Fortune 500 and 50 percent of the companies listed on the New York Stock Exchange. The Delaware Corporation Law, the Court of Chancery, and the customer service-oriented staff at the Division of Corporations are all sound reasons why Delaware leads the nation as a major corporate domicile. As Delaware, and then New Jersey, threw out old restrictions on corporate behavior, allowing corporations to have interlocking boards, to live forever, to define themselves for any legal purpose, to own stock in other corporations, and so on, corporations began to move both their corporate charters and, in some cases, their companies to the chartermongering states. By 1900, trusts for everything from ribbons to bread to cement to alcohol had moved to Delaware or New Jersey, leaving 26 corporate trusts controlling, from those states, more than 80 percent of production in their markets. The result was a national frenzy of chartermongering: between 1900 and 1970, in order to remain competitive, nearly all U.S. states have rolled back their state constitutions or laws to make it easier for large corporations to do business in their states without having to answer to the citizens of the state for what they do or how they do it.
dotcompost (app2bcom) Tue 25 Feb 03 17:08
<29> >>" If corporations are to have privileges rather than rights, what protects them from the whims of politicians? I know that in today's political climate, corporations have more than enough clout to do that. But if they had only privileges, much of that clout would dissipate. I tend to agree that something should be done to mitigate the power (political and economic) that corporations hold. I just think that we need to be careful about what that "something" is." ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ..."what protects them from the whims of politicians" -- [??!!] huh? For much of the commentary, <1> thru <29>, it seems to me that we've been distracted by some form of pro-corporate side-tracking. Anyone else get/share that feeling? Monbiot speaks more clearly, directly, to the real issues raised. "CORPORATIONS BEHAVE AS IF THEY ARE MORE HUMAN THAN WE ARE" by George Monbiot - The Guardian of London, 10/5/00 www.nancho.net/corperson/cpmonbio.html .... "Human beings, you might have thought, are animate, bipedal creatures a bit like you and me. But the lawyers would have it otherwise. Big companies might not breathe or speak or eat (though they certainly reproduce), but they are now using human rights laws to claim legal protections and fundamental liberties. As their humanity develops, so ours diminishes. .... It is a concept developed in the US. The 14th amendment to the constitution was introduced in 1868 with the aim of extending to blacks the legal protections enjoyed by whites: equality under the law, the right to life, liberty and the enjoyment of property. By 1896, a series of extraordinary rulings by a corrupt, white and corporate-dominated judiciary had succeeded in denying these rights to the black people they were supposed to protect, while granting them instead to corporations. Though black people eventually reclaimed their legal protections, corporate human rights were never rescinded. Indeed, while they have progressively extended the boundaries of their own humanity, the companies have ensured that ours is ever more restrained. Firms in the US have argued that regulating their advertisements or restricting their political donations infringes their "human right" to "free speech." They have insisted that their right to the "peaceful enjoyment of possessions" should oblige local authorities to grant them planning permission, and prevent peaceful protesters from gathering on their land. At the same time, however, they have helped to ensure that the "social, economic and cultural" rights, which might have allowed us to challenge their dominance, remain merely "aspirational." As the solicitor Daniel Bennett has pointed out, article 13 of the European Convention, by which we could have contested the corporations' absolute control of fundamental resources, has been deliberately excluded from our own Human Rights Act. The rise of corporate human rights has been accompanied by an erosion of responsibilities. Limited liability allows firms to shed their obligations towards their creditors. Establishing subsidiaries regarded in law as separate entitles allows them to shed their obligations towards the rest of us. And while they can use human rights laws against us, we can't use human rights laws against them, as they were developed to constrain only the activities of states. As far as the law goes, corporations are now more human than we are. The potential consequences are momentous. Governments could find themselves unable to prevent the advertising of tobacco, the dumping of toxic waste or the export of arms to dictatorships. Yet in Britain the public discussion of this issue has so far been confined to the pages of the Stornoway Gazette. The creatures we invented to serve us are taking over. While we have been fretting about the power of nanotechnology and artificial intelligence, our domination by bodies we created but have lost the means to control has already arrived. It is surely inconceivable that we should grant human rights to computers. Why then should they be enjoyed by corporations?"
dotcompost (app2bcom) Tue 25 Feb 03 17:16
More... to the point: A Critical Review of Mokhiber and Weissman's CORPORATE PREDATORS by Charles Reid www.nancho.net/corperson/predator.html "The Fourteenth Amendment to the U.S. Constitution stipulates that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In the 1886 Supreme Court case, Santa Clara County v. Southern Pacific Railroad Co., the Court declared that a corporation was a "person" as interpreted by the Fourteenth Amendment. In a preface to the Court's argument, Chief Justice Morrison R. Waite observed that all the Justices shared the opinion that the provisions of the Fourteenth Amendment that applied to persons also "applied to these corporations," the corporate defendants affected by the case before the Court. This 19th Century decision set a momentous precedent. It gave an abstract paper construct, a corporation, the legal rights of a "person," though without binding these legal persons with the same social responsibilities communities place on individual human beings. Four score and 14 years later, the Court de facto extended the progressively enhanced legal empowerment of corporations, enabling them finally to design contracts that supersede and nullify an individual human being's protections under the U.S. Constitution's Bill of Rights. Not surprisingly, it was a government agency, namely, the CIA, that pioneered the use of employment contracts to limit the fundamental freedoms of American citizens. In Snepp v. the CIA (1980), the Court upheld an injunction enjoining Snepp from publishing any work concerning the CIA or its activities without pre-publication review by the CIA. The Agency had sued ex-agent Frank Snepp for publishing his book, "Decent Interval," without submitting it to the CIA for pre-publication review. Although the book did not contain any information that was not already part of the public record, when Snepp entered the CIA, he signed a secrecy contract in which he promised not to publish any information or material relating to the agency without prepublication approval. The Court found that Snepp had not only violated his contract, but also breached a fiduciary duty to the government. It imposed a "constructive trust" on the proceeds of his book. Thus, all the money Frank Snepp received from publishing his book had to be turned over to the federal government. Today, corporations are using the "contract tool" to nullify the rights of citizens under the Constitution of the United States. The best example of this occurs when insurance companies require patients to "waive" their Constitutional rights to due process and submit to "arbitration" in a dispute with a doctor covered by the insurer. This de facto deprives the human patient of immediate legal due process as guaranteed by the same Fourteenth Amendment that gave life to paper corporations. Through the years and a series of corporate-friendly, perhaps socially irresponsible decisions, the Supreme Court has created a horde of monstrous predators, legal Dr. Jekyll/Mr. Hydes." ....
dotcompost (app2bcom) Tue 25 Feb 03 17:26
further: .... "Mokhiber and Weissman's book, "Corporate Predators," is important for the information it contains about impact corporations have on you and I, our communities and the world. Russell Mokhiber is editor of the "Corporate Crime Reporter." Robert Weissman is editor of the "Multinational Monitor." The authors' agenda is clear, and "Corporate Predators" is spiced with the kind of rhetoric one would expect from writers reporting on the evils of corporations. But you can ignore the rhetoric, if you want. Facts speak for themselves. .... .... "Corporate Predators" contains facts and information about corporations that rarely reaches the general public in a unified, coherent way. And the public can change the law, once people grasp the problem and unify to solve it. "Corporate Predators" exposes the problems in monitoring corporate crimes, for example. In "No Mind, No Crime," the authors write, "While street crime is reportedly being brought under control in America's major cities, all indications are that corporate crime and violence continue to skyrocket. .... .... "The FBI does not issue a yearly "Corporate Crime in the United States" report, despite strong evidence indicating corporate crime and violence inflicts far more damage in society than all street crime combined." Indeed, the FBI "Crime in the United States" report ignores corporate and white-collar crimes such as pollution, procurement fraud, financial fraud, public corruption and occupational homicide, while it does document murder, robbery, assault, burglary, and other street crimes." *** and here's a good one: "The authors report in "Brinkley Shills for Corporate Criminals" that in 1996 Archer Daniels Midland (ADM) pled guilty to criminal price fixing and paid a $100 million fine. ADM hired David Brinkley to film a series of TV promos to repair the company's image. Our vocabulary has no concept of working for a corporate felon."
Thom Hartmann (thomhartmann) Thu 27 Feb 03 13:25
Here's a FAQ that's published in my book that answers several of the questions posted here quite succinctly. Hopefully it'll help: Political scientist William P. Meyers has written the following frequently asked questions regarding the revocation of corporate personhood, which he has kindly granted us permission to reprint: What would be the immediate effect of revoking corporate personhood? The only immediate effect of revoking corporate personhood, either at the state level or by the Supreme Court, would be to cause the legal status of corporations to revert back to that of artificial entities. (We should refuse to use the old terminology of artificial persons.) They could still be represented in courts by attorneys and would be subject to the law and taxation. However, a whole body of Supreme Court decisions would have to be re-examined. The ability of States, when granting or renewing corporate charters, to restrict harmful activities of corporations would be greatly enhanced. New legislation to protect the environment, workers, small businesses, and consumers could be enacted without worrying that it would be struck down by the Supreme Court. How would small businesses be affected? Small, incorporated businesses would become artificial entities under the law. Most small businesses have gained no meaningful advantage from corporate personhood. Small businesses do not have the kind of money it takes to corrupt the political process that large corporations have. Small businesses would be better situated to protect their interests since laws favoring local businesses over national and international corporations would become legal. If corporations can't lobby, how can they get laws that are fair to them? Revoking corporate personhood would not immediately prevent corporations from lobbying, but it would allow laws to be passed (and enforced) that would restrict corporate lobbying and campaign contributions. If a state legislature or Congress is considering legislation that affects a particular industry they would be able to hold hearings and interrogate corporate representatives. If a corporation feels its needs a change in the laws, not for its own profits but in order to insure competition or public safety, it could petition the legislature to hold such a hearing. What about past harms done by corporate personhood? That is an interesting question with no certain answer. The Constitution prohibits ex post facto laws (laws that punish for deeds committed before the law was written), and properly so. However, revoking corporate personhood does not create an ex post facto law. It may be possible to force corporations to rectify damage they did to the environment during the era of corporate personhood. Would the media lose its freedom of the press and free speech? The ruling that corporate ads on political and social issues is free speech could be overturned, but the corporate media would continue to have freedom of the press. New legislation would be needed to restrict corporations to ownership of a single radio or TV station, newspaper, or magazine and to insure that individual and non-corporate voices could be heard as well. How will revoking corporate personhood affect non-profit corporations? Non-profit corporations would continue to operate as the artificial entities that they are. However, it would be possible to restrict for-profit corporations from working for corporate interests. Why don't unions have corporate personhood? Unions don't have corporate personhood, even though they are also, legally, artificial entities, because unions have never fought to get it. Unions have largely avoided the court system, correctly seeing it as the home court of their enemies. Why do you want to restrict the freedom of stockholders and people who work for corporations? This is a trick question. Corporate lawyers and propagandists will try to get people who work for corporations to support corporate personhood by lying to them about the effects of revocation. In fact individuals, whether they work for corporations or not, will retain all of the freedoms recognized in the constitution. In addition, individuals will have their freedom enhanced by not having their liberty overpowered by the rule of corporations. Only the artificial entity of the corporation will be redefined to have restrictions on its liberty. Wouldn't we lose the power to tax and regulate corporations? In the art of lying it is hard to surpass corporate lawyers. They have managed to place in the minds of law students, in the texts of some law books, and in the public mind, the idea that corporate personhood is necessary to bring corporations under rule of law. This is such a big lie it is amazing that they can tell it with a straight face. Corporations were taxed when they were artificial entities, long before they were granted personhood. They were more subject to the rule of law, not less, before receiving personhood. Read up on the history; don't be fooled again.
dotcompost (app2bcom) Thu 27 Feb 03 18:13
Thom, thanks for the excerpt. These two can't be overstated: "Why do you want to restrict the freedom of stockholders and people who work for corporations?" "This is a trick question. Corporate lawyers and propagandists will try to get people who work for corporations to support corporate personhood by lying to them about the effects of revocation. In fact individuals, whether they work for corporations or not, will retain all of the freedoms recognized in the constitution. In addition, individuals will have their freedom enhanced by not having their liberty overpowered by the rule of corporations. Only the artificial entity of the corporation will be redefined to have restrictions on its liberty." "Wouldn't we lose the power to tax and regulate corporations?" "In the art of lying it is hard to surpass corporate lawyers. They have managed to place in the minds of law students, in the texts of some law books, and in the public mind, the idea that corporate personhood is necessary to bring corporations under rule of law. This is such a big lie it is amazing that they can tell it with a straight face. Corporations were taxed when they were artificial entities, long before they were granted personhood. They were more subject to the rule of law, not less, before receiving personhood. Read up on the history; don't be fooled again."
dotcompost (app2bcom) Thu 27 Feb 03 18:28
Speaking of the devil. Fox/Monsanto/Bovine Growth Hormone. "The news organization owned by media baron Rupert Murdoch, argued the First Amendment gives broadcasters the right to even lie or deliberately distort news reports on the public airwaves" "JURY VERDICT OVERTURNED" www.foxbghsuit.com/ ... "Americas milk supply has quietly become adulterated with the effects of a synthetic hormone (bovine growth hormone, or BGH) secretly injected into cows pressure from the hormone maker Monsanto led Fox TV to fire two of its award-winning reporters and sweep under the rug much of what they discovered but were never allowed to broadcast. After a five-week trial and six hours of deliberation which ended August 18, 2000, a Florida state court jury unanimously determined that Fox "acted intentionally and deliberately to falsify or distort the plaintiffs' news reporting on BGH." In that decision, the jury also found that Jane's threat to blow the whistle on Fox's misconduct to the FCC was the sole reason for the termination... and the jury awarded $425,000 in damages which makes her eligible to apply for reimbursement for all court costs, expenses and legal fees. Fox appealed and prevailed February 14, 2003 when an appeals court issued a ruling reversing the jury" "Court Reverses Ruling on Jane Akre's rBGH Suit" http://organicconsumers.org/rbgh/akre022103.cfm ... "In overturning the jury on what amounts to a legal technicality, the court did not dispute the heart of Akre's claim, that Fox pressured her to broadcast a false story to protect the broadcaster from having to defend the truth in court, as well as suffer the ire of irate advertisers. Nonetheless, the station aired a report in wake of the ruling saying it was "totally vindicated" by the verdict. The "threshold issue," the court wrote-and all it ruled upon--was whether the technical qualifications for a whistleblower claim were ever met by Akre. In Florida, to file such a claim, the employer's misconduct must be a violation of an adopted law, rule or regulation. Fox argued from the first-and failed on three separate occasions in front of three different judges-to have the case tossed out on the grounds there is no hard, fast, and written rule against deliberate distortion of the news. In essence, the news organization owned by media baron Rupert Murdoch, argued the First Amendment gives broadcasters the right to even lie or deliberately distort news reports on the public airwaves. In it's opinion, the Court of Appeal held that the Federal Communications Commission position against news distortion is only a "policy," not a promulgated law, rule, or regulation."
Thom Hartmann (thomhartmann) Fri 28 Feb 03 13:21
Yep. This is the core of the Nike v. Kasky case, too. Here's something I wrote on it: While Nike was conducting a huge and expensive PR blitz to tell people that it had cleaned up its subcontractors' sweatshop labor practices, an alert consumer advocate and activist in California named Marc Kasky caught them in what he alleges are a number of specific deceptions. Citing a California law that forbids corporations from intentionally deceiving people in their commercial statements, Kasky sued the multi-billion-dollar corporation. Instead of refuting Kasky's charge by proving in court that they didn't lie, however, Nike instead chose to argue that corporations should enjoy the same "free speech" right to deceive that individual human citizens have in their personal lives. If people have the constitutionally protected right to say, "The check is in the mail," or, "That looks great on you," then, Nike's reasoning goes, a corporation should have the same right to say whatever they want in their corporate PR campaigns. They took this argument all the way to the California Supreme Court, where they lost. The next stop may be the U.S. Supreme Court in early January, and the battle lines are already forming. For example, in a column in the New York Times supporting Nike's position, Bob Herbert wrote, "In a real democracy, even the people you disagree with get to have their say." True enough. But Nike isn't a person - it's a corporation. And it's not their "say" they're asking for: it's the right to deceive people. Corporations are created by humans to further the goal of making money. As Buckminster Fuller said in his brilliant essay The Grunch of Giants, "Corporations are neither physical nor metaphysical phenomena. They are socioeconomic ploys - legally enacted game-playing..." Corporations are non-living, non-breathing, legal fictions. They feel no pain. They don't need clean water to drink, fresh air to breathe, or healthy food to consume. They can live forever. They can't be put in prison. They can change their identity or appearance in a day, change their citizenship in an hour, rip off parts of themselves and create entirely new entities. Some have compared corporations with robots, in that they are human creations that can outlive individual humans, performing their assigned tasks forever. Isaac Asimov, when considering a world where robots had become as functional, intelligent, and more powerful than their human creators, posited three fundamental laws that would determine the behavior of such potentially dangerous human-made creations. His Three Laws of Robotics stipulated that non-living human creations must obey humans yet never behave in a way that would harm humans. Asimov's thinking wasn't altogether original: Thomas Jefferson and James Madison beat him to it by about 200 years. Jefferson and Madison proposed an 11th Amendment to the Constitution that would "ban monopolies in commerce," making it illegal for corporations to own other corporations, banning them from giving money to politicians or trying to influence elections in any way, restricting corporations to a single business purpose, limiting the lifetime of a corporation to something roughly similar to that of productive humans (20 to 40 years back then), and requiring that the first purpose for which all corporations were created be "to serve the public good." The amendment didn't pass because many argued it was unnecessary: Virtually all states already had such laws on the books from the founding of this nation until the Age of the Robber Barons. Wisconsin, for example, had a law that stated: "No corporation doing business in this state shall pay or contribute, or offer consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office." The penalty for any corporate official violating that law and getting cozy with politicians on behalf of a corporation was five years in prison and a substantial fine. Like Asimov's Three Laws of Robotics, these laws prevented corporations from harming humans, while still allowing people to create their robots (corporations) and use them to make money. Everybody won. Prior to 1886, corporations were referred to in US law as "artificial persons," similar to the way Star Trek portrays the human-looking robot named Data. But after the Civil War, things began to change. In the last year of the war, on November 21, 1864, President Abraham Lincoln looked back on the growing power of the war-enriched corporations, and wrote the following thoughtful letter to his friend Colonel William F. Elkins: "We may congratulate ourselves that this cruel war is nearing its end. It has cost a vast amount of treasure and blood. The best blood of the flower of American youth has been freely offered upon our country's altar that the nation might live. It has indeed been a trying hour for the Republic; but I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. "As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. I feel at this moment more anxiety than ever before, even in the midst of war. God grant that my suspicions may prove groundless." Lincoln's suspicions were prescient. In the 1886 Santa Clara County vs. Southern Pacific Railroad case, the U.S. Supreme Court ruled that the state tax assessor, not the county assessor, had the right to determine the taxable value of fenceposts along the railroad's right-of-way. However, in writing up the case's headnote - a commentary that has no precedential status - the Court's reporter, a former railroad president named J.C. Bancroft Davis, opened the headnote with the sentence: "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws." Oddly, the court had ruled no such thing. As a handwritten note from Chief Justice Waite to reporter Davis that now is held in the National Archives said: "we avoided meeting the Constitutional question in the decision." And nowhere in the decision itself does the Court say corporations are persons. Nonetheless, corporate attorneys picked up the language of Davis's headnote and began to quote it like a mantra. Soon the Supreme Court itself, in a stunning display of either laziness (not reading the actual case) or deception (rewriting the Constitution without issuing an opinion or having open debate on the issue), was quoting Davis's headnote in subsequent cases. While Davis's Santa Clara headnote didn't have the force of law, once the Court quoted it as the basis for later decisions its new doctrine of corporate personhood became the law. Prior to 1886, the Bill of Rights and the 14th Amendment defined human rights, and individuals - representing themselves and their own opinions - were free to say and do what they wanted. Corporations, being artificial creations of the states, didn't have rights, but instead had privileges. The state in which a corporation was incorporated determined those privileges and how they could be used. And the same, of course, was true for other forms of "legally enacted game playing" such as unions, churches, unincorporated businesses, partnerships, and even governments, all of which have only privileges. But with the stroke of his pen, Court Reporter Davis moved corporations out of that "privileges" category - leaving behind all the others (unions, governments, and small unincorporated businesses still don't have "rights") - and moved them into the "rights" category with humans, citing the 14th Amendment which was passed at the end of the Civil War to grant the human right of equal protection under the law to newly-freed slaves. On December 3, 1888, President Grover Cleveland delivered his annual address to Congress. Apparently the President had taken notice of the Santa Clara County Supreme Court headnote, its politics, and its consequences, for he said in his speech to the nation, delivered before a joint session of Congress: "As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel. Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people's masters." Which brings us to today. In the next few weeks the U.S. Supreme Court will decide whether or not to hear Nike's appeal of the California Supreme Court's decision that Nike was engaging in commercial speech which the state can regulate under truth in advertising and other laws. And lawyers for Nike are preparing to claim before the Supreme Court that, as a "person," this multinational corporation has a constitutional free-speech right to deceive. The U.S. Chamber of Commerce, Exxon/Mobil, Monsanto, Microsoft, Pfizer, and Bank of America have already filed amicus briefs supporting Nike. Additionally, virtually all of the nation's largest corporate-owned newspapers have recently editorialized in favor of Nike and given virtually no coverage or even printed letters to the editor asserting the humans' side of the case. On the side of "only humans have human rights" is the lone human activist in California - Marc Kasky - who brought the original complaint against Nike. People of all political persuasions who are concerned about democracy and human rights are encouraging other humans to contact the ACLU (125 Broad Street, 18th Floor, New York, NY 10004) and ask them to join Kasky in asserting that only living, breathing humans have human rights. Organizations like ReclaimDemocracy.org are documenting the case in detail on the web with a sign-on letter, in an effort to bring the ACLU and other groups in on behalf of Kasky. Corporate America is rising up, and, unlike you and me, when large corporations "speak" they can use a billion-dollar bullhorn. At this moment, the only thing standing between their complete takeover of public opinion or their being brought back under the rule of law is the U.S. Supreme Court. And, interestingly, the Chief Justice of the current Court may side with humans, proving this is an issue that is neither conservative or progressive, but rather one that has to do with democracy versus corporate plutocracy. In the 1978 Boston v. Bellotti decision, the Court agreed, by a one vote majority, that corporations were "persons" and thus entitled to the free speech right to give huge quantities of money to political causes. Chief Justice Rehnquist, believing this to be an error, argued that corporations should be restrained from political activity and wrote the dissent. He started out his dissent by pointing to the 1886 Santa Clara headnote and implicitly criticizing its interpretation over the years, saying, "This Court decided at an early date, with neither argument nor discussion, that a business corporation is a 'person' entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886). ..." Then he went all the way back to the time of James Monroe's presidency to re-describe how the Founders and the Supreme Court's then-Chief Justice John Marshall, a strong Federalist appointed by outgoing President John Adams in 1800, viewed corporations. Rehnquist wrote: "Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: "'A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.'..." Rehnquist concluded his dissent by asserting that it was entirely correct that states have the power to limit a corporation's ability to spend money to influence elections (after all, they can't vote what are they doing in politics?), saying: "The free flow of information is in no way diminished by the [Massachusetts] Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity." Justices true to the Constitution and the Founders' intent may wake up to the havoc wrought on the American political landscape by the Bellotti case and its reliance on the flawed Santa Clara headnote. If the Court chooses in the next few weeks to hear the Kasky v. Nike case, it will open an opportunity for them to rule that corporations don't have the free speech right to knowingly deceive the public. It's even possible that this case could cause the Court to revisit the error of Davis's 1886 headnote, and begin the process of dismantling the flawed and unconstitutional doctrine of corporate personhood. As humans concerned with the future of human rights in a democratic republic, it's vital that we now speak up, spread the word, and encourage the ACLU and other pro-democracy groups to help Marc Kasky in his battle on our species' collective behalf.
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