WASHINGTON — Aided and abetted by successes in court over two centuries, U.S. corporations now have equal – or, it seems, more – constitutional rights than U.S. citizens, a prominent professor of business, the law and history says.
And depending on the ruling in a pending U.S. Supreme Court case, adds UCLA constitutional law and history professor Adam Winkler, the situation could soon get a whole lot worse: They’d gain the right to discriminate against people.
Corporations have gained their “rights” by posing as groups of persons, each of whom has individual political rights, and claiming those personal rights in the aggregate, says Winkler, author of We The Corporations: How American Businesses Won Their Civil Rights. He discussed the issue in a March 11 book talk at Politics and Prose, an independent, progressive D.C. bookstore.
And if the court decides for corporations in a pending case involving a Colorado bakery’s right to refuse to sell goods to gay couples, it could get a whole lot worse, Winkler says.
That’s because the Colorado law involved bans business – in this case the Masterpiece Bakeshop — from discriminating against gays as a business. The law does not mention discrimination by Masterpiece’s baker/owner, who refused to sell the gay couple a wedding cake.
If the court rules for the bakeshop, and by inference, all corporations, they could gain the right to discriminate, Winkler said.
Rights of corporations are a key issue now for workers and their allies, because the justices vastly expanded them in politics.
Ever since the court’s 2010 Citizens United decision, which opened the floodgates to corporate spending, and a subsequent decision – involving a GOP big giver from Mississippi – dumping limits on individual giving, an already huge corporate tilt in election and lobbying spending over everybody else has become even worse.
The non-partisan Campaign Finance Institute reported campaign finance committees (PACs) of all types contributed $441 million to congressional campaigns in the 2015-16 election cycle. Of that, 69 percent came from business and 11 percent from workers and unions. A decade before, union PACs accounted for 23 percent of all PAC funding.
And those figures are just direct contributions from PACs to candidates. They don’t count “issue ad” spending by business or big-business individuals. Those corporate advantages are even larger.
Winkler’s book unveils the development of corporations – and their gains as opposed to those of individuals – all the way back to the first English-speaking settlement in the U.S., at Jamestown, Va.
Those settlers, Winkler said, were actually employees of a British-crown chartered corporation, the Virginia Company, whose motive was profit. But corporations got crown and state charters “only for public purposes,” Winkler said. Profit was one of them, but the public good was also covered.
Such charters not only grew in other colonies, but became models for colonial constitutions, as well. The Constitution’s writers were knowledgeable about such charters when they convened in 1787.
Many of them were also distrustful of corporations, and, indeed, the initial royal and state charters strictly limited corporate power, set out specific corporate responsibilities and made them responsible to the greater body politic, Winkler said.
That didn’t stop corporate crafters from trying to expand their rights and their influence. They turned to the courts to do so, winning in the pro-corporate, Federalist-dominated U.S. Supreme Court as early as 1809, he said.
The key win, he explained, came in the Dartmouth College case, in 1819. Then Sen. Daniel Webster, arguing for the Dartmouth Corporation – the technical owners of the college – successfully convinced the court, led by Chief Justice John Marshall, to uphold the college’s charter against New Hampshire’s fight to revoke it.
And in the process of ruling for the college, Marshall also got the court to drop all requirements on corporations – except to make profits.
The next big explosion of rights of corporations came after the Civil War, when the chieftains and moguls of the Gilded Age seized on the Constitution’s 14th Amendment – meant to ensure the full civil rights of the newly freed African-American slaves – to expand their rights instead.
Indeed, they brought so many cases demanding such rights that the first empirical study of cases arising from any part of the nation’s basic charter, Winkler said, showed that from 1868, when the amendment passed, through 1913 the justices handled 28 cases involving African-American civil rights and 312 involving corporations.
States sometimes tried to curb corporate power, but lost to the firms and their high-priced lawyers. The Gilded Age case that cemented corporate rights in that era, Winkler said, involved California wanting to tax the Southern Pacific Railroad. California lost.
In the post-World War II era, as courts affirmed both individual and corporate rights, they also affirmed workers’ and unions’ rights, especially to participate in politics. “When corporations were limited, unions were limited, and when corporations’” political rights “were expanded, unions’ rights were expanded. Now that’s breaking down.”
But through all this, the corporation has been justified as an aggregation of persons and their individual rights. That’s even though, Winkler said, U.S. corporate law is structured so the individuals – the stockholders – have only the illusion of control. It’s really in the hands of the corporate chieftains.
The court could expand corporate rights against people, Winkler warned, with the bakeshop case from Colorado. The justices heard arguments on that earlier this year.
The baker and the bakeshop pitched case as a 1st Amendment freedom of speech struggle. Colorado does not have the right, they say, to regulate the baker’s “speech” against same-sex couples by forcing him to sell a cake to gays for their marriage.
But the state law, like other such state and federal statutes, regulates businesses, not individuals. If the justices uphold Masterpiece’s stand, that opens up a whole new field for corporate rule. “If it” – the Supreme Court – “rules for Masterpiece, you could see more of that” discrimination by business “in homogenous areas of the country,” Winkler warned.
We the Corporations: How American Businesses Won Their Civil Rights
By Adam Winkler
A Liveright book, Division of W.W. Norton
Available in hardcover, Kindle and audio editions
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