What Does Corporate Personhood Mean in a Pro-Life State?

School's in! Let's talk ConLaw!

Doug Wiken at Dakota Today gets my vote for bringing up one of the most underreported issues on the political table: the absurdity of corporate personhood. Our high school debate topic last winter touched on it briefly, but the issue rarely makes news. Yet declaring legal fictions to be rights-bearing persons under the Constitution is one of the strangest and most dangerous legal quirks of our Republic.

For a little background, see David C. Korten's The Post-Corporate World: Life After Capitalism (San Francisco: Berrett-Koehler, 1999). I quote here beginning on page 184:

In the United States the natural rights of persons are enshrined in the first ten amendments to the U.S. Constitution, known as the Bill of Rights. Indeed, the individual states approved the Constitution only once assurances were given that a Bill of Rights would be added through amendment. Each provision was thoroughly contested, publicly debated, [p. 185] and subject to ratification by all of the state legislatures. Since the time of ratification all other U.S. laws have been subject to the test of consistency with these constitutionally guaranteed human rights. The U.S. Constitution, however, does not use the term "human" rights. it speaks rather of the rights of persons, which most people would take to be the same thing.

In 1886, however, in the case of Santa Clara County v. Southern Pacific Railroad, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitution affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the Constitution.

Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced in this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of argument in the case of Santa Clara County v. Southern Pacific Railroad that

• The Court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

The court reporter duly entered into the summary record of the Court's findings that

• The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen [sic] 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.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of corporate global rule, and thereby changed the course of history.

Korten's book discusses numerous implications of ascribing personhood to corporations. Among them, if corporations are owned by shareholders, and corporations are persons, are shareholders violating the 13th Amendment, which outlawed slavery?

To put the issue in a South Dakota context, if we really are a pro-life state, (stated also here by an outside agitator, here by Father Dana Christensen and Senator John Thune, here by State Representative Roger Hunt, even acknowledged here by State Representative Joni Cutler... feel free to contribute more such quotes), then what does it mean to ascribe the sacred status of personhood to something that is clearly not a person?

Chew on that for a while. You may realize that the principles of the Doug-Wiken left (my apologies, Mr. Wiken for the simplistic label) and the pro-life right lead to the same conclusion: corporations are not persons, and our government should formally revoke corporate personhood.

Hey! Sounds like a fun bipartisan issue to me! Russ, Dave, Dan... how about it?