Most awake people know that the 2010 Supreme Court Citizens United ruling freed corporations to spend from their corporate coffers in political elections. The court did that, it said, because corporations are people and people have the constitutional right to freedom of speech, and, oh yes, money is speech.
However, few people become as angry at the mention of the 1886 decision, by the same body, which illegitimately laid the groundwork for the precedent of corporate personhood. That story provides an example of how carefully citizens of a would-be democracy must attend to government.
Early in our country's history, a corporation was granted a limited charter which set out, for example, the political geography in which it could do business, the length of time it could do business and the public good it would serve. The process involved a legislative process of approval and violation of the charter was grounds for rescission of the charter — the end of doing business by that corporation in that state.
During the colonization of our country, the East India Company had freedom to practice its trade however it pleased, because it had bought and paid for so many in the British parliament. Having that firsthand experience, our forefathers warned us repeatedly that we must be careful to keep a tight rein on the corporation or it would come to rule us. They warned us, but there were those whose interests were better served if their businesses were given more than the privileges granted in their legislated charters — they wanted the same rights given to citizens.
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Our history can be told by tracing this struggle between elements who agreed with Thomas Jefferson, Benjamin Franklin and later Abraham Lincoln, and those who advocated for corporate rights.
The first giant step for corporations in this struggle should never have happened. Law clerk Bancroft Davis in the court of Supreme Court Justice Morrison R. Waite, in the case of Santa Clara County vs. The Southern Pacific Railroad, 118 U.S. 394, 396 (1886), caused to be included in the record of the case a "head note," indicating that "corporations are people."
It was not a legal concept presented in oral arguments and had nothing to do with the ruling. However, before the proceedings began that day, Waite said, "The court does not wish to hear argument on the question of whether the provision in the 14th Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
It is interesting that both the justice and the clerk came from employment with railroads.
The first time that case was cited as precedent for "corporate personhood" and it was not challenged, it became established law. Though the pendulum has swung back and forth from the building of corporate rights to the protection of human rights, over the last 129 years, today it appears stuck on the side of the corporation.
Case by case, rights intended for humans through the Constitution and its amendments have been awarded to corporations, allowing them to ignore workers' safety, destroy the environment, refuse to properly label our food or be held accountable in any meaningful way for their behaviors.
Trade agreements, such as the Trans-Pacific Partnership now before Congress are enabling corporations to sue nations for their loss of anticipated profits when they are prevented from dong business in a way that harms citizens and the environment.
Democracy in the U.S. today is an illusion used to keep the people calm. There is, however, a democracy movement afoot. As Lincoln said in his first inaugural, "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it."