By Marc Jampole
Whether grilling hamburgers, attending a parade, watching fireworks, playing softball or zoning out to the Dirty Hairy binge-a-thon on Sundance TV, our celebration of July 4th commemorated an obsolete document.
All the fuss about Independence Day celebrates the signing of the Declaration of Independence, easily recognized by its key passage, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The idea that animates the Declaration of Independence is equality of rights and opportunity for all men (which at the time meant white males but has since been expanded to include people of color and women). This ideal, however, was superseded by the Constitution, which as interpreted by the Supreme Court almost from its first case onward, holds as government’s primary function the protection of private property. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” is how the Constitution begins. Sounds like a contract between large corporations, which, as it turns out it was, and is.
I have been reminded of the predominance of property over people in U.S. law reading We the Corporations: How American Corporations Won Their Civil Rights, Adam Winkler’s breezy history of Supreme Court decisions that have gradually recognized and expanded the rights of corporations. As Winkler notes, one strand of legal thinking shared by many of the rich white merchants and slave owners who wrote the Constitutions “understood the Constitution largely in terms of protecting private property and private economic relations from majority rule.” This theory predominates the thinking of the Reagan Era right wing. It is a guiding principle of the Heritage Foundation, Cato Institute, Mercatus Center and other 21st century right-wing propaganda mills. It animates the political contributions of the Koch brothers. (see Nancy MacLean’s Democracy in Chains.)
One ramification of the industrial and financial revolutions after the Civil War was that vast amounts of property (wealth) were transferred from the hands of individuals to corporate control. Even though individuals controlled corporations and other individuals owned them, a corporation was something different from the sum of those individuals. In essence, a corporation comprises its tangible and intangible assets and its debts (which are negative forms of property) and thus is nothing more or less than a piece of property, no less than land, furniture, equipment or the right to use an image.
Early on, the managers and owners of corporations wanted to assert corporate rights, while governments and reformers wanted to restrict them. It was up to the Supreme Court to interpret the Constitution and decide what rights corporations—compositions of property and property rights—had. According to Winkler, the “corporate rights” movement developed alongside the Civil Rights movement, and was more successful earlier on.
From the turn of the 20th century to just before World War II in what is known as the “Lochner Era,” named after a 1905 case, the Supreme Court distinguished between property rights and liberty rights. The court gave property rights to corporations, but not liberty rights, such as the right to free speech. In fact, it was in this era that the first laws were passed limiting the ability of corporations to give money to support candidates. But the Court in the Lochner Era also invalidated state and federal legislation that constrained corporations, such as minimum wage laws, federal child labor laws, and regulations of the banking, insurance and transportation industries.
After World War II, the Supreme Court under Chief Justice Earl Warren focused much more on protecting the rights of individuals, but to the degree that these included property rights, Court decisions also helped corporations.
Since Nixon replaced four Supreme Court justices with pro-business conservatives in the late 1960s and early 1970s, the Court has gradually recognized that corporations—again, collections of property owned collectively by individuals—have liberty rights, too, in decisions such as First National Bank of Boston v. Bellotti, in which the Court ruled that corporations had a First Amendment right to speak and spend freely on ballot referenda. The coup-de-grace for corporate liberty rights was, of course, Citizens United, which has enabled corporations to give unlimited amounts of “dark money” to support candidates.
By giving corporations that same rights as individuals, the Supreme Court has enthroned property as more important than “Life, Liberty and the Pursuit of Happiness.” It has also created a number of asymmetries which give large corporations overwhelming advantages over smaller businesses and individuals. While corporations can’t cast votes, they have greater influence over elections than individuals because they have more money to spend. Once de facto limits are removed from campaign contributions, as Citizens United did, those with more money have more votes. Likewise in employment: the corporate entity has the power not to hire someone who doesn’t accept an arbitration agreement.
Most Americans like to think that the great arc of history—and in particular American history—bends towards freedom and justice for all, as Martin Luther King once said. The freeing of the slaves, the gaining of the right to vote, minimum wage, child labor and overtime laws, the end of legal segregation, gay marriage—these are all milestones in the American pursuit of liberty and equal opportunity. But Winkler’s conclusion in We the Corporations is that over the course of time, corporations have won more constitutional rights than have individuals. And every win for corporations is a win for property over people. Remember, we live by the Constitution, not the Declaration. Our right to pursue happiness—enshrined by the Declaration of Independence—exists, but it’s not as strong or as meaningful as the rights of a corporation to pursue profit for the rich folk who own it.
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