Senator Bernard (“Bernie”) Sanders of Vermont (just last week one of the 7 heroic senators who voted AGAINST S.B. 1867, whom I said might be qualified for reelection) has proposed a Constitutional Amendment which purports to overturn and abolish the Judicial Definition of “Corporations” as “Persons” entitled to Equal Protection under the Fourteenth Amendment, while affirming and clarifying the Federal government’s power and ability to regulate business entities and corporations. I predict that this amendment will go nowhere fast for a wide variety of reasons, most of which are despicable, but some of which are comprehensible. I oppose Senator Sanders’ amendment and propose my own after a discussion of the Constitutional status of corporations (including all governmental entities). The text of Sanders’ proposed amendment reads as follows:
SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.
SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.
SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.
On one level, I have been thinking the same thing ever since Second Year in Law School: Construing the newly enacted 14th Amendment in the 1870s, the Supreme Court for the first time declared that corporations were in fact “persons” under the Constitution with at least limited constitutional rights to equal protection under the Fourteenth Amendment.
In writing the above sentence I am struck, and I hope the reader is also, by the internal contradiction contained in the oxymoronic statement “at least limited constitutional rights to equal protection.” Right away it seems semantically obvious that there can never exist any category of “persons” who have a “limited right to equal protection”, because by definition, their protection is not equal if it is limited.
What the Supreme Court decided, in fact, was that corporations are entitled to equal protection under the Fifth Amendment—not to be deprived of life, liberty, or property without due process of law. It is sufficiently bizarre to speak of a non-living corporate entity’s right not to be deprived of life or liberty, so what it comes down to is fundamentally property and the right to contract (and this was the subject of the famous “Slaughterhouse cases” from New Orleans which went to the Supreme Court). Fifty years after the Fourteenth Amendment, the Supreme Court was still unsure of the contours of liberty:
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v v. Hopkins, 118 U.S. 356; Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children’s Hospital, 216 U.S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474.
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Lawton v. Steele, 152 U.S. 133, 137.
Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042, 1045 (1923)(bold and italic emphasis added).
We may at least be thankful that Corporations have never been considered worthy of “full” equal rights as persons, in that they have never been judicially deemed to posses any fundamental right “to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.“
So it seems safe to say that a corporation is not the same as a “free man”, although it is formed by and composed of free men and women. But in some regards, the law has evolved so that corporations, especially but not limted to “governmental corporations”, possesses immunities that “free men” do not possess, and for that reason, a corporation is almost a preferred status.
A corporation simply cannot ever, for example, truly be subject to the death penalty, or to incarceration, or [since it cannot marry] to divorce or child custody suits. It all comes down to property and contractual rights regarding property. But the people involved in all types of corporations do things analogous to procreating (spinning off new entities), divorcing or dying (dissolution or splitting up), and they can certainly sue each other for possession of property in a manner analogous to child custody suits.
It has also never been said, in the history of the United States, that corporations should be able to vote or hold office—so they have no “political” rights (although Ecclesiastical Entities were entitled to representation in some of the ancient parliaments of Europe, and routinely for over a thousand years cast votes for the “election” of the Holy Roman Emperor in Germany, for instance). The text of Senator Sanders’ proposed amendment is wrong in so many ways, fundamentally too long, among other things:
“SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.”
OXYMORONIC PROBLEMS COMPOUND here rather than resolve themselves: Why does Senator Sanders distinguish “for profit” corporations? We’re going to have a constitutional standard for what constitutes a “profit” now? Will Congress or the bureaucrats who draft the Code of Federal Regulations outline and define the federal distinction between limited liability companies and corporations on the one hand and “other private entities established for business purposes or to promote business interests under the laws”? This section alone amounts to a COMPLETE Federalization of State commercial and corporate law under the guise of protecting against corrupt campaign contributions.
“SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.”
Frying pan into the fire—as much as I like Bernie Sanders in some ways, I’m beginning to think this man may be dangerous. Most of us in the Constitutional Democratic-Republican movement oppose the use of the “Necessary and Proper” Clause, the “Interstate Commerce” Clause, and the “General Welfare” Clause as justification for federal regulation. Section 2 of Sanders’ proposed Amendment would eliminate the need for any other constitutional justification for regulation, by writing into the Constitution: “Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.” So who’s side is Bernie Sanders really on and what is he trying to do? It appears his amendment would OBLITERATE all possible debate regarding Congressional and Executive Power to regulate the economy in every imaginable way. I would, accordingly, oppose this amendment….
“SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.”
This sounds like rather draconian prohibition against people who happen to own shares in a corporation from pooling their money.
“SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.”
Again, listening to Sanders speak in the video excerpt above, I thought that he meant to limit the power of the collective, wealthy, and corporate against the individual, but in this Fourth Section, it seems to me that this Amendment ends up being a massive increase in the power of government.
And Sanders also ignores the fundamentally corporate nature of government itself: Some governmental entities, mostly municipalities, are officially “incorporated”. Others are merely approved [like corporations] by Congress as States upon submission of a “corporate charter” = State Constitution. Still others, like counties, may not have a charter at all but are merely “political subdivisions” = “subsidiaries” of a parent corporation, namely “the state”). From a historical and anthropological standpoint, though, a governmental entity is fundamentally corporate—it is a group of people who assemble together for a specific purpose under specific rules, and in that these “incorporating” parties create a new entity, and not all people have exactly equal functions as “partners” within the corporation, the modern private corporation is most closely analogous to the modern governmental entity at any level.
And the courts, in developing rules of liability and authority in corporate and governmental hierarchy, have come up with rules which tend to immunize corporate and governmental officers and directors in much the same way. This is equally true all over Europe and the Anglo-American world and in Latin America, wherever the descendants of the Roman or Anglo-Saxon (Viking) legal traditions have taken root (e.g. South Africa, India, Japan).
Up to a certain point, the political right to form a corporate personality (whether governmental or private) derives directly and depends upon two genuine constitutional rights expressly stated in the First Amendment: the right of the people peaceably to assemble and to petition the Government for redress of grievances. Closely related to the right of the people of the people to assemble peaceably is the right to be anonymous, and not to bear sole responsibility for ones actions, but to share such responsibility.
The right to engage in coordinated, social and political action IS a fundamental right of freedom. What I suppose I object to more than anything is that the Citizens United decision to which Sanders objects gives corporations GREATER rights than individuals.
And herein lies the greater problem: rights vs. responsibility, the right to freely assemble and associate vs. individual liability for loss and injury.
Originally, people formed corporations precisely for the purpose of engaging in risky economic ventures. “Well, I’d like to bring coffee/tea/spices/silks to Holland/England/New England/Virginia from India/Indonesia/China, but I don’t have enough money to do that myself, so what if we all got together and pooled our resources to form a company? If I buy a ship myself and the ship sinks, I’m sunk, but if we all pool our gold to buy ten ships, well, none of us risks everything and with ten ships, even if one sinks, we don’t lose everything.” That’s how corporate investing started, and how it continued, basically, until just after the so-called American Civil War/War Between the States, when this concept of corporate personhood first came into the forefront of the Anglo-American legal environment.
Originally, corporate directors (and governmental officials in the United States at least) were both expressly designated and implicitly treated as trustees, a species of officers with “super-liability” for losses or mishandling to their shareholders. Now, corporate officers and directors nearly have immunity—hiding [from the shareholder owners and in fact, the rest of the world] behind the corporate personality of their “employer”.
So, in a free society, how can we balance the rights of the people peacefully to assemble to Petition the Government for Redress of Grievances (and for lots of other purposes), without obliterating individual liability for loss arising from negligence, recklessness, and criminal conduct occurring behind the “corporate veil?”
I propose an alternative amendment, much simpler and more direct than that proposed by Senator Sanders of Vermont:
Section 1: “The rights of the people peaceably to assemble and associate for any purpose shall not be infringed, and the people may, according to the law, combine their identities to create new private or public organizations, partnerships and entities, and to dedicate these entities as primarily commercial or primarily for public service. But neither the legislatures nor courts of the United States nor any state may define or designate any class of corporations, governmental bodies, nor any other entities, which by virtue of their classification or denomination shall thereby be granted or allowed any immunity from loss or injury caused by civil or criminal wrong, including the injurious abuse of any constitutional right or power. Nor shall the legislatures or courts of the United States nor any state grant or allow any special privileges or immunities to the officers, directors, agents or other employees of any private, public, commercial, or “governmental” corporation or like enterprise, however owned or chartered, privileges or immunities greater than those which inure to all citizens, providing that the power of the President to grant pardons and paroles in the interests of justice and mercy shall not be limited by this provision.”
The People should always have the right to engage in collective social, economic, and political activity, but not to hide their wrongdoing or escape from the consequences of criminal conduct by so engaging. And this rule should not merely apply to the “for profit” corporations, but also to the organs of the United States Government as well as the government of every state, municipal, and local “corporation” as well.
Every governmental entity is by definition a corporation. It is incongruous and incoherent to think of government as anything other than a particular class or kind of corporation: it is organized for a purpose and granted certain powers, but only certain powers, by its corporate charter (for example, the United States Constitution). CORPORATE IMMUNITY SHOULD NOT EXIST. GOVERNMENTAL IMMUNITY SHOULD NOT EXIST. I challenge anyone to tell me that Bernie Sanders’ proposed Amendment is actually better than mine as a “Freedom-Respecting, Liberty-Conserving” addition to the Constitution.
If you would like to help the fight for “corny old values” like Truth, Justice, and the American Way, for Family, Home, and Freedom, and to add one Senator for the Bill of Rights and against Indefinite Detention, against the PATRIOT ACT, and against the use of United States Troops in this Country against its own citizens, please support Charles Edward Lincoln, III, for U.S. Senator from California. We are fighting one of the most entrenched establishment seats in Congress—Dianne Feinstein who tried to make cosmetic changes in S.B. 1867 to hide and disguise its truly oppressive nature (and to claim she had “done the best she could”, perhaps?)—and we ask you to send your check or money order to Lincoln-for-Senate 2012 to Charles Edward Lincoln, III, 952 Gayley Avenue, #143, Los Angeles, California 90024. Call 310-773-6023 for more information.