What is ‘corporate personhood’? In relation to American history, it refers to a long legal debate over the degree to which the rights normally given to persons should also be given to corporations. Why does this matter? It matters enormously, because – alongside individual citizens – corporations arguably have major influence in U.S. politics today.
To understand how this came about historically, let’s start with American citizenship and citizen rights. The 14th Amendment to the United States constitution is not something that readily rolls off the tongue in Britain. If there is any familiarity, it is usually restricted to the 5th Amendment, where individuals on television or in films are often depicted in police or court dramas ‘taking the 5th’, this being the legal right not to self-incriminate.
The 14th Amendment, possibly the least known but undoubtedly one of the most significant, was enacted in July, 1868, following the cessation of the American Civil War. This Amendment bestowed citizenship to both the country and state on all those individuals who were born or naturalised in the USA. It is particularly important in that, for the first time, it gave American citizenship to the whole population, as well as the millions of African Americans who had either fought in the conflict or been subjected to slavery. Prior to this Amendment there was no defined right of being an American citizen and you were only a citizen of the United States when abroad.
The American Supreme Court established this precedent in 1857, when it concluded in its landmark judgement of the Dred Scott case (Dred Scott v. Sandford) that individuals were citizens of their own state and must be adjudged by the laws of their birthplace, and that African Americans had no rights to citizenship. Scott had argued that, because he had resided from 1833 to 1843 in Illinois, an area of the Louisiana Territory (a free state) – where slavery was forbidden by the Missouri Compromise of 1820 – he was entitled to be emancipated. But the court ruled that African Americans, under Article III of the constitution, were property, and – as such – could not be citizens.
The 14th Amendment was intended to eradicate this precedent and bestow on its populace equal rights. But, ironically, not long after this Amendment was enacted, corporations began to use its wording to counter and supress any attempts by individual states to introduce anti-trust legislation or labour reforms. The area of contention relates to the wording ‘nor shall any state deprive any person of life, liberty, or property with out the due process of law, nor deny to any person… the equal protection of the laws’.
Over the next 100 years, the wording of this Amendment, originally designed to enhance life, would – instead – be used to supress social, economic and labour reforms in what has now become defined as ‘corporate personhood’. Numerous attempts were made by corporations to try and get businesses defined in law as a ‘person’. And, in 1878, they achieved success, via the case of San Mateo County v. Southern Pacific Railroad. The Supreme Court was asked to adjudge whether Santa Clara County had the right to levy taxation on the land and rights of way owned by the Southern Pacific Railroad. The railroad claimed the taxation was improper and had refused for 6 years to pay any taxation. The railroad argued that, as a corporate body, it was – in fact – a ‘person’, and should be entitled to the same right of equal protection granted to former slaves by the 14th Amendment, and that local governments could not discriminate by applying different laws and levels of taxation.
The Court agreed with the railroad company’s argument and found in its favour. Whilst the case was not specifically about the 14th Amendment, the very fact that it had been used by the railroad company in its arguments, and later formed part of the written judgement, now opened the doors for corporations to use it in the future – which they repeatedly did.
In fact, over the next 100 years, corporate America used the 1878 precedent to overturn state and federal labour and social reform laws 211 times. The last of these was in 2014, in the Burwell v. Hobby Lobby case, where the Supreme Court heard arguments related to the 1st (Right to Religious Beliefs and Practice), 5th and 14th Amendments on the supply of free contraception demanded of employers under the Affordable Care Act. The Supreme Court again confirmed the 1878 ruling, agreeing that as a business was a ‘person’, the demands of the Affordable Care Act were unlawful, infringing the rights of the individual (Hobby Lobby) as defined by the constitution.
At some point the American government may change this Amendment, but the process for doing so is complicated. The last Amendment to be repealed was the 18th Amendment enacted in 1919, which introduced ‘Prohibition – an alcohol free America’, and that was eventually repealed in 1933. From the moment this 18th Amendment was enacted, opposition grew, but it still took 13 years to achieve its repeal. Unlike depriving a nation of its alcohol, where a cross-section of opposition combined to achieve its repeal, the 14th Amendment has no collective opposition dedicated to its repeal. It is therefore unlikely change will be achieved.
If anything, the power of corporations as ‘persons’, and relative to citizens, seems to be growing by the day. Many of the big corporations, for example, influence American politics and government by their donations to political campaigns.
In the recent 2016 Presidential election, Hilary Clinton received over $1.2 billion in donations, mainly received from major business donors. It was a similar situation with the Trump campaign. Could this be considered undue influence? Not if you are the Supreme Court, who ruled in 2010 (Citizens v. Federal Elections Comm.) – referencing the 1st and 14th Amendments – that the federal government could not and should not quantify or control political campaign donations.
There is now no control on what amounts of money can be donated by ‘corporate persons’ and what possible influence such a contribution may achieve. This cannot be good for politics or the American citizen.
Stuart Smith has just completed his History Degree at Kingston University
(Images: WikiMedia Commons)