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Allan Powell: Corporate personhood is challenged by proposed amendment

February 17, 2012|By ALLAN POWELL

Earlier, I wrote about objections to the application of the term “personhood” by courts which granted special privileges to corporations. This judicial generosity reached its peak in 2010 when the Supreme Court, in Citizens United v. Federal Election Commission, awarded corporations the clearly (and uniquely) human right of free speech. The court then expanded the gift to mean that money given as political contributions was an expression of free speech. This sequence of stretches was a continuation of a long history of judicial generosity grabbed by former corporate lawyers.

There are other very important bits of information that every citizen should be aware of as we wrestle with the problems of the size, power and over-reach of the modern, multinational corporation. The first item is the series of distortions which resulted in the ability of corporate lawyers to successfully incorporate the concept of personhood to advance corporate power. The second is the surprising emergence of a movement to get an acceptable amendment to the Constitution to take the vital characteristics properly belonging to a natural person away from a purely artificial entity.

To understand the virtual fraud involved in the advent of corporate personhood, it is essential to realize the importance played by the deliberate distortion of the Fourteenth Amendment, passed in 1868. The language of that amendment shows beyond doubt that the protections provided therein were intended to apply to the freed slaves and other natural persons. “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 artificial “person” such as a corporation is “born” or “naturalized.” This has never deterred corporation lawyers (many of which became judges) from using this amendment to advance their interests.

In addition, corporation lawyers were able to use a head-note in the Santa Clara County v. Southern Pacific Railroad case (1886) as though it was an integral part of the court’s opinion. Once used, it was thereafter treated as precedent with a legal life of its own to influence future court decisions. This flawed use of a head-note gave credence to the use of “personhood” to artificial persons.

Following is the fateful head-note that was exploited to perpetuate the use of “personhood” as a legal fiction. “The defendant corporations are persons within the intent of the clause in section I of the Fourteenth Amendment to the Constitution of the United States which forbids a State to deny any person within its jurisdiction the equal protection of the law.” Again, it needs to be understood that this opinion was not a part of the formal ruling — it was a simple head-note inserted by the court reporter.    

There are several versions of the proposed amendment to reign in the power of corporations. The following version has three sections and calls for:

• Section I (A corporation is not a person and can be regulated).

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities, such as corporations, limited liability companies, and other entities established by the laws of any State, the United States, or any foreign state shall have no rights under the Constitution and are subject to regulation by the People, through federal, state or local law.

• Section II (Money is not speech and can be regulated).

Federal, state and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.

Federal, state or local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence election to be speech under the First Amendment.

• Section III (Nothing contained in the amendment shall be construed to abridge the freedom of the press).

All American citizens who have a sincere interest in preserving the rights and welfare of a healthy democracy need to study this issue and be involved as this proposed amendment gains traction. A viable democracy is not sustainable in an uninformed and lethargic citizenry.


Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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