In part I of our interview with Kevin Gutzman, professor of history at Western Connecticut State U and author of “Do We Need a Constitutional Convention?” published in The American Conservative, he made the case for American plutocracy, i.e., the freedom of the wealthy to corrupt our politicians with unlimited campaign contributions. In part II of this interview, Gutzman flamed out when he was asked to how Madison, who saw an “evil” in large and growing corporations that continue on into perpetuity, would have supported the arguments this corporate shill was making for corporate constitutional rights.
Victor MTA: In your understanding of the Constitution, up to and not including the 14th amendment, do you believe that corporations or associations in general should have constitutional rights granted to them by a court?
Kevin Gutzman: Obviously they have to have some rights. They have the right to due process. They have the right to counsel. They have the right to compel witnesses. They have the right to cross-examine witnesses. They have the right to shut their doors and have the police enforce their claim on their property. They have the right not to suffer excessive fines. They have the right not to be forced to support a federal religion. Etc. In general, then, although a corporation isn’t an individual, as an association of individuals with pooled resources, a corporation has to have certain rights, of course.
These rights aren’t granted by courts. They’re recognized by courts. They have the right to trial by jury. They have the right to appeal.
VMTA: How is this obvious? Again, I’m referring to any language you can cite from the Constitution, up to and NOT including the 14th Amendment where the phrase “any person” was used twice, the Federalist Papers or the Declaration of Independence.
KG: I believe that if you, I, and a half-million other people hire a third party to use our capital in a stated line of business on our behalf, he should be allowed to assert a right to due process, a right against unreasonable fines, a right to trial by jury, a right against unreasonable searches and seizures, etc., on our behalf. Certainly.
As owner of shares in a retirement fund, I have money invested in American and foreign corporations. I certainly don’t like the idea of the government claiming that it can take, or restrict my control over, my property under the guise of “corporations aren’t people.”
VMTA: And you believe that by “person” Madison was referring to corporations, the same Madison who wrote “..there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect?”
You believe that he intended these corporations to have “due process” or any other right?
KG: No, obviously I don’t believe that anyone was refrerring (sic) to corporations in 1789-91, as the form hadn’t been invented, precisely. Yet, the idea that government is free to take corporations’ property without due process, deny corporations trial by jury, deny them cross-examination of witnesses, deny thet (sic) the right to compel witnesses, impose excessive fines upon them, etc., clearly is far-fetched. If you go out and make that argument, I doubt that anyone will support you. [Emphasis added]
Whether a corporation should be perpetual is another matter. Yet, your question was whether corporations should have any rights “granted by a court.” Immortality isn’t grnted (sic) corporations by courts, it’s granted them by legislatures. Your state legislature could cease granting corporations immortality tomorrow, if it wanted to.
VMTA: Actually, a majority of Republicans have supported this. It’s a basic American principle: people have rights and privileges; corporations have privileges. The issue was on the ballot during the Republican primaries last year in a conservative suburb of Milwaukee:
“West Allis, Wisconsin, a conservative Milwaukee suburb, voted overwhelmingly to reject the Supreme Court’s 2010 Citizens United v. FEC ruling. Republican Party primary voters approved a resolution calling for an amendment to the US Constitution to establish that corporations are not people and money is not speech by 70%, becoming the most recent community to vote to support the Move to Amend campaign.”
There have been municipal Republicans who have supported this idea as well, all around the country. The resolution in IL legislature was backed by two conservative Republican Senators. I could go on.
The idea that associations should have rights is outside of the mainstream, and yes, corporations had been invented in 1789 although they have “evolved” a lot since. Their existence used to require a vote in both houses of state legislature, and they were finite in duration for example.
If corporations lose their rights, the state will still not be able to take corporate property for two reasons: 1) they are the property of individuals who have the right to property and 2) Trustees of Dartmouth College would still be standing law.
Trial by judge was standard before the Court changed that in 1970. Also, in the aftermath of abolition, Congress and legislatures could protect the privileges of corporations, the privilege of “cross-examination of witnesses [and] deny thet (sic) the right to compel witnesses” for example.
That immortality was granted by legislatures was, at least, democratic policy, for better or for worse. What the Court has done in granting corporations the rights of natural persons has been legislating from the bench and undemocratic.
What makes you believe that Madison would be supporting your arguments for corporate rights in light of the quote by him I offered you and the judicial activism of the Court?
KG: Now we’re just going around in circles. I don’t see any point in it.
Commentary: After that, Facebook noted: “You cannot reply to this conversation. Either the recipient’s account was disabled or its privacy settings don’t allow replies.” In a comment under part I of this interview, Bill Walker stated, “Mr. Gutzman should not tell outright lies about something that can be checked so easily.” In this part of the interview, he claimed that the Court “recognized,” rather than “granted” rights to corporations. This claim is either deceitful or ignorant of the generation-long refusal by the Court to allow corporations to exercise the rights of the 14th Amendment after it was passed and the role of corporatists on the Court to insure their legal standing, particularly Justice Stephen J. Field. In Chapter 1 of Unequal Exchange, Thom Hartmann explains:
Field was very much an outsider on the Court and was despised by [Chief Justice] Waite. As [author of Everyman’s Constitution] Graham notes,
Field had repeatedly embarrassed Waite and the Court by close association with the Southern Pacific proprietors and by zeal and bias in their behalf. He had thought nothing of pressuring Waite for assignment of opinions in various railroad cases, of placing his friends as counsel for the railroad in upcoming cases, of hinting at times [of actions that] he and they should take, even of passing on to such counsel in the undecided San Mateo case “certain memoranda which had been handed me by two of the Judges.
Field had presidential ambitions and was relying on the railroads to back him. He had publicly announced on several occasions that if he were elected, he would enlarge the size of the Supreme Court to twenty-two so that he could pack it with “able and conservative men.”
When faced with corporate shills like Professor Guztman, give them no quarter. Force them to spell out how the Constitution provides rights to associations. W/R/T the 14th Amendment, TAG Sr. Editor, Paul Westlake, stresses: “artificial entities are neither ‘born’ nor ‘naturalized.’ Section 1 clearly sets forth the parameters of the entire Amendment and it specifically omits artificial persons by definition. Supreme Court interpretation of the 14th is irrelevant in a discussion about what the language of the 14th means in plain English. There is no English professor, no grammarian nor etymologist, living or dead, that would agree that any part of the 14th is meant to include legal fictions. Even corporate lawyers don’t believe it, they just use it because they can. Don’t give an inch on the 14th. Rights for artificial persons simply does not exist anywhere in the U.S. Constitution, including, and especially, the 14th Amendment.” Unfortunately, Gutzman bailed before this argument could be made.