A recent 5-4 Supreme Court decision (Citizen’s United) has alarmed many advocates of democracy by empowering private corporations and unions to participate directly in political campaigns through the direct expenditure of funds. This disputed decision ultimately rests upon several prior opinions equating money with “speech” and giving corporations the status of “persons.”
The meaning of the term “person” in the U.S. Constitution is a fundamental issue. Can Supreme Court justices erase or ignore the clear constitutional meaning of “person” in order to advance a partisan or class agenda?
At first, limited liability charters for “bodies corporate” merely protected investors from being responsible for debts created by their commonly owned business, but gradually the wealthy desired more and more privileges not possessed by traditional small enterprises. Their search for power eventually led the U.S. government and the courts to endow such corporations (literally corporeal entities) with a fictitious “personhood.”
This was a key shift because the Constitution gives “persons” many basic rights. Significantly, the original case wherein the word “person” is allegedly given a broadened (distorted) meaning is that of Santa Clara County v. Southern Pacific Railroad (1886) wherein the justices merely discussed whether the “person” in the Fourteenth Amendment might cover corporations, but such a question was not a part of the actual decision. Thus the reference has no actual legal value as a precedent but nonetheless contributed to what we might call a legal myth to that effect.
It should be noted that in subsequent years the court gradually enhanced the power of white corporations without, however, doing the same for Native American tribes, pueblos, and other “bodies corporate.” Thus one can see how “whiteness” gave white corporations privileges and protections that were absolutely denied to Native American legal entities.
When we turn to the Constitution to discover what the term “person” means we will discover how the Supreme court often has distorted the word in order to deprive Native Americans and African Americans of legal protections and property rights while subsequently giving corporations, mostly white-owned, the rights of persons.
Article I, Section 2 of the original Constitution established rules for representation in the House of Representatives. It states that: Representatives and direct taxes shall be apportioned among the several states…according to their respective numbers, which shall be determined by adding to the whole number of free persons including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.
Clearly, “persons” is used exclusively for human beings and not for organizations of whatever kind. Individuals belonging to groups could be counted as individual persons but the groups themselves were certainly excluded from the meaning of “person.” Significantly, Indians were considered to be “persons” but were untaxed if they were living in tribal nations beyond the ability of the government to collect taxes. (Once Indians began paying taxes they were eligible to be counted and this occurred very early in states such as Virginia where Indians, other free men of color, and non-white women had to pay poll taxes.)
Also it is significant that captives (slaves) were clearly stated to be “all other persons” as opposed to simply being property. This language would have included captives of Native American as well as those of African and mixed ancestry. The use of “persons” here meant that although such persons were held to be unfree by state and prior colonial legal codes, captives were persons from a Federal constitutional standpoint and were, theoretically, entitled to all rights
guaranteed to persons by the subsequent Bill of Rights. In short, they should have enjoyed free speech, freedom of religion, and, of course, “life and liberty.”
In Section 9 of the Constitution it states that: The migration or importation of such persons as any of the states…shall think proper to admit, shall not be prohibited…prior to the year one thousand eight hundred and eight, but a tax may be imposed…not exceeding ten dollars for each person.
This section would seem to refer to the importation of captives (or perhaps indentured servants or convicts) of whatever race but clearly no matter what their asserted legal status they are “persons” under the law. Thus they were protected by the Constitution and by the “Writ of Habeas Corpus” referred to immediately below the above quote, also in Section 9.
(This is especially interesting in view of the slavers desire to legally claim the babies in the wombs of captive women as also being captives, without a crime being committed. In short, no “right to life” in the womb but instead a “duty to serve!” Obviously, this obscene greed violated every principle of the common law heritage and the Constitution.)
“Persons” clearly also included women and thus the latter were protected from all forms of the denial of liberty and property, free speech, and freedom of religion. This means that the common practice in Maryland, Virginia, and other states of transforming “free” women into servants or captives for a term of years, for each birth of a child out of wedlock, was unconstitutional.
The Federal Constitution’s Fifth Amendment also guaranteed that “no person shall be deprived of life, liberty, or property without due process of law” and that “just compensation” had to be paid for any taking of property. Certainly, this language applied only to real human beings and not to organizations. If the latter had been intended then Indian tribes and towns, which clearly were “bodies corporate” could never have been wiped out, or deprived of their property without the adherence to Fifth Amendment proceedings with payment of just compensation.
The Fourteenth Amendment, adopted soon after the Civil War, bears me out, in spite of the discussion in Santa Clara. The amendment states that “all persons born or naturalized” in the USA shall be citizens of the state and nation. It does not protect “bodies corporate” obviously, since such bodies would never be described as being “born or naturalized.”
In summary, “person” as used in the Constitution never referred to organizations or corporations. Can a Supreme Court majority rewrite the Constitution so as to corrupt the meaning of a key concept?
In granting unrestricted rights of “speech” to corporations (and unions), with the right to spend money in political campaigns on a level playing field with you and I, the Court majority has equated corporate entities with natural human beings and has thereby amended, rather than interpreted, the Constitution.
[It is time that we insist that a judge’s highest duty must be to see that justice is done for the weak and the powerless, and to seek truth and not to lie.]
Jack Forbes is PROFESSOR EMERITUS in NATIVE AMERICAN STUDIES.
I think the Supreme Court realized that effectively unions are being given the right to spend money in political campaigns (e.g. Firefighters Union in Davis), so why not corporations?
Right now unions and corporations are allowed to spend money in political campaigns in the same way, forming a political action committee which is regulated. The Supreme Court ruling changes that and allows Corporations to spend money directly without the regulations that encumber PACs.
DPD: “Right now unions and corporations are allowed to spend money in political campaigns in the same way, forming a political action committee which is regulated. The Supreme Court ruling changes that and allows Corporations to spend money directly without the regulations that encumber PACs.”
I would argue the PAC regs haven’t worked very well (if at all) – the McCain/Feingold bill has become a joke in terms of effective legislation. The FF Union in Davis is a prime example…
I won’t disagree on that, but that is a separate point.