Eliminating Corporate Rights
by Ted Nace
The Farmer-Paellmann lawsuit is a reminder of the Supreme Court’s own spectacularly misguided decisions in the nineteenth century: declaring people to be property, giving property the rights of people. Over a century later, the harms from both mistakes continue to reverberate. In an article in the Hastings Law Journal, legal scholar Carl J. Mayer proposed a succinct constitutional amendment stating clearly that the rights contained in the Constitution are reserved for human beings, not corporate entities. Mayer suggested the following language:
This Amendment enshrines the sanctity of the individual and establishes the presumption that individuals are entitled to a greater measure of constitutional protection than corporations.
For purposes of the foregoing amendments, corporations are not considered "persons," nor are they entitled to the same Bill of Rights protections as individuals. Such protections may only be conferred by state legislatures or in popular referenda.
As yet, the prospects for such an amendment are distant. Nevertheless, various groups have given the idea their support, including the Green Party; the Alliance for Democracy; the Community Environmental Legal Defense Fund; Public Citizen; the Program on Corporations, Law, and Democracy; and the Women’s International League for Peace and Freedom. Author and activist Thom Hartmann has the proposal even further, proposing that "corporations aren’t persons" amendments should be passed at all three levels of government: local, state, and federal.
Hartmann wrote, "I’m not so naïve as to think this is something that will happen quickly…. It may be in my children’s or their children’s lifetime that humans fi nally take back their governments and their planet from corporations, and it may even be generations beyond that." On the other hand, Hartmann refused to rule out that the amendment could serve as a near-term catalyst: "[S]ometimes the Constitution is amended quickly in response to an overall public uprising, as happened with the amendment to end Prohibition and the amendment to lower the voting age to 18…."
Like Hartmann, other personhood campaigners were not dissuaded by the seemingly remote prospects of a personhood amendment. They reasoned that even if the amendment were not adopted, the activity of promoting was suffi ciently valuable in its own right as a means of educating the public on a topic that had for a century languished in obscurity. It should be noted that the reversal of the rights acquired by corporations as a result of Supreme Court decisions does not depend on the enactment of a constitutional amendment. On many occasions, the Court has reversed its own well-established doctrines and precedents. For example, Plessy v. Ferguson (1896), which legitimized the Jim Crow system of segregation, was demolished by the Court’s 1954 decision in Brown v. Board of Education. Similarly, Butler v. Thompson (1951) and Breedlove v. Suttles (1937), which upheld poll taxes, were overridden by Harper v. Virginia Board of Elections (1966). And the Social Darwinist doctrine established in Chicago, Milwaukee (1890) and epitomized by the Lochner decision of 1906 was effectively overturned by the decision in West Coast Hotel Company v. Parrish (1937). Even very old decisions have been reversed: Erie Railroad Co. v. Tompkins overruled Swift v. Tyson, a decision 95 years old; Graves v. New York overruled Collector v. Day, a decision 68 years old; and United States v. South Eastern Underwriter’s Association overruled in part Paul v. Virginia, a decision 75 years old.
In all the cases noted above, no Constitutional amendment was necessary. Instead, the heat that softened the wax of established Court doctrine, allowing it to be reshaped, was an underlying shift in public opinion, amplifi ed by a mobilized grassroots movement. This experience suggests that activists should simply start to fi nd ways to contest corporate rights wherever possible, especially at the grassroots level. Along such lines, early steps could be seen with actions by two local governments to oppose or neutralize corporate rights. In one case, the tiny city of Port Arena, California, which became the fi rst municipality in the United States to pass a resolution advocating the rejection of corporate personhood rights. In the second, Porter Township, Pennsylvania, passed a "Corporate Personhood Elimination and Democracy Protection Ordinance," declaring that corporations operating in the township may not exercise constitutional rights to override township decisions.
The Porter Township ordinance came about as a result of a fi ght between nearby Rush Township and Synagro Corporation, a large sludge-hauling company. the 1990s, a teenage boy had died from a massive infection after riding his all terrain vehicle in a fi eld that had been spread with sludge from Synagro. In response, township supervisors in Rush Township, where the death had occurred, adopted Pennsylvania’s fi rst sewage sludge testing ordinance. Synagro then sued Rush Township for violating Synagro’s constitutional rights. In addition, Synagro attempted to intimidate the Rush Township supervisors by suing each personally for one million dollars.
In forming its own response to the sewage sludge issue, Porter Township considered the option of working through Pennsylvania’s Environmental Hearing Board (EHB), but township offi cials concluded that the EHB was too beholden to corporate interests, bogging activists down in endless hearings and comment periods, and tending to side with polluters far more often than with local communities. As a step toward regaining control over local environmental decisions, the attorney advising Porter Township, Thomas Linzey of the Community Environmental Legal Defense Fund, proposed the "personhood elimination" in conjunction with a set of township ordinances for testing sludge.
Speaking to a local meeting of about 100 people in the Limestone Fire Hall, Linzey noted that formally denying corporate rights moved the focus to basic concepts of power: "If corporations can veto local decisions, we can’t get to democracy… That’s what this is about— who is in charge." Linzey reported following media attention to the Porter Township action, his phone had been "ringing off the hook " with calls from other local governments around the United States.
Reprinted with permission from the publishers. Gangs of America: The Rise of Corporate Power and the Disabling of Democracy by Ted Nace (Berett-Koehler Publishers; 2003; $24.95; 281pps.) For a FREE download of this book, go to http://www.gangsofamerica.com
