“Corporate personhood” is an incomplete shorthand in the same way that “overturn Citizens United” doesn’t encompass the entirety of the problem of money dominating politics in America. When people from organizations like Move To Amend say corporate personhood, what they usually mean by “corporate” is all artificial entities, including corporations, unions, non-profits, super PACs and all other forms of organization that are created in charters granted by government agencies (or, in the case of unions, regulated under the Fair Labor Standards Act). And what they usually mean by “personhood” are the Constitutional protections afforded to those legal fictions that the Founding Fathers had originally reserved exclusively for individuals (We the People). The distinction between “natural” and “artificial” personhood is what is often lost in the translation to English from the legal pig latin of jurisprudence.
After the American Revolution, our legal system was largely founded on British Common Law, which dates back to the creation of the Magna Carta and included an understanding that legal fictions, like the British East India Company, were “artificial persons” for purposes of the law. Artificial corporate personhood allowed those entities to enter into contracts, to sue and be sued, collect fees, distribute wages and pay taxes to the crown but it did not grant any rights. All the things an artificial entity could do were considered “privileges” that could be revoked by the monarch (or Parliament) for almost any reason, legitimate or not (this is a corrupt aristocracy we’re talking about, after all).
This basic structure of artificial corporate personhood, as separate and distinct from the “natural” personhood that describes living human beings, was carried forward into American law and confirmed in the first Supreme Court ruling to acknowledge it, Dartmouth College v. Woodward in 1819. Bear in mind that not all living human beings in America were treated as “persons” at all, or at least in full, in the Constitution at that time. Some of the Founders wanted to exclude slaves from the census count entirely, but others wanted the political power their numbers could afford in a representative democracy (even though they wouldn’t be allowed to vote, of course), so the three-fifths rule was incorporated in the U.S. Constitution as a compromise. Free white women, while not enduring the indignity of slavery, were nonetheless considered “property” for all intents and purposes under the laws of every state. With barely 5% of the nation eligible to vote under state law, in accordance with the federalist construction of the original Constitution, and not many more eligible to even own property, the notion of “natural” personhood for artificial creations of the state would have seemed laughable to the Founding Fathers.
An important piece of the following statement by Thomas Jefferson, in a letter to George Logan on November 12, 1816, has been circulating on the web for a long time. There’s nothing wrong with clipping out the quote but the full letter is fascinating and worth a look in its original form. But you can get the full context with this much [emphasis added]:
“I do not believe that in the four administrations which have taken place, there has been a single instance of departure from good faith towards other nations. We may sometimes have mistaken our rights, or made an erroneous estimate of the actions of others, but no voluntary wrong can be imputed to us. In this respect England exhibits the most remarkable phenomenon in the universe in the contrast between the profligacy of its government and the probity of its citizens. And accordingly it is now exhibiting an example of the truth of the maxim that virtue and interest are inseparable. It ends, as might have been expected, in the ruin of its people, but this ruin will fall heaviest, as it ought to fall, on that hereditary aristocracy which has for generations been preparing the catastrophe. I hope we shall take warning from the example and crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” ~Thomas Jefferson
Despite the best efforts of corporate owners and executives, like the earliest railroad magnates, the separation of natural and artificial corporate personhood remained intact for the first hundred years of the Constitution’s existence. But so did slavery for most of that time. Suggesting that artificial persons should have rights when entire classes of natural persons (blacks and women) were still considered property would have been illogical at best. After slavery was abolished, the table was set for the rise of the corporation as “natural” person.
This came about as a result of a manipulation of the wording in one of the post-Civil War amendments, which together were designed to abolish slavery and grant citizenship to all native-born persons, and included the right to vote for former slaves (men only). The 14th Amendment, what would become the linchpin to corporate personhood, could have been worded to specifically exclude artificial persons but nobody thought to indemnify the amendment language against the manipulations of a Supreme Court in thrall to monied interests. The critical first section reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”
Corporations now use corporate personhood to claim constitutional rights on a regular basis. The Fourth Amendment is used to prevent OSHA from making surprise inspections of work sites to make sure workers don’t get injured or worse. The Fifth Amendment can be used to force taxpayers to pay for “lost profits” as a result of duly enacted regulation on land use and business activities. No legislation has ever been proposed that would have anywhere near the effect the Supreme Court has had in the creation of an entire area of law in the U.S Code. That kind of judicial activism is how we got Citizens United, a case the Supreme Court turned into a sweeping First Amendment ruling even without any urging from the plaintiff.
Abolishing constitutional rights for artificial entities is not about demolishing corporations or capitalism or anything so radical. It’s simply putting the reins back on the legal fictions that the Supreme Court has allowed to run amok in our economy, politics and legal system for decades. Governments are our creations. Corporations are the governments’ creations. We can no longer allow the creations of our creations to have control over the destinies of the original creators — we the people. Enough is enough.