The Rise of Corporate
Dominance and the Theft of Human Rights
A Review by Richard W. Behan
Unequal Protection may prove to be the most significant book
in the history of corporate personhood, a doctrine which dates to
1886. For 116 years, corporate personhood has been scrutinized and
criticized, but never seriously threatened. Now Thom Hartmann has
discovered a fatal legal flaw in its origin: corporate personhood
What is "corporate personhood?" Suppose, to keep Wal-Mart at
bay, your county commissioners enact an ordinance prohibiting
Wal-Mart from doing business in your county. The subsequent (and
immediate) lawsuit would be a slam-dunk for Wal-Mart's lawyers,
because this corporation enjoys -- just as you and I do as living,
breathing citizens -- the Constitutional rights of "due process"
and "equal protection." Wal-Mart Stores, Inc. is a person, not in
fact, not in flesh, not in any tangible form, but in law.
To their everlasting glory, this is not what the Founding
Fathers intended, as Mr. Hartmann explains in rich and engaging
detail. And for 100 years after the Constitution was ratified,
various governmental entities led corporations around on leashes,
like obedient puppies, canceling their charters promptly if they
compromised the public good in any way. The leashes broke in 1886,
the puppies got away, and the public good was increasingly
compromised -- until it was finally displaced altogether.
Today, the First Amendment protects the right of
corporations-as-persons to finance political campaigns and to
employ lobbyists, who then specify and redeem the incurred
obligations. Democracy has been transformed into a crypto-plutocracy, and public policy is no longer crafted to serve the
American people at large. It is shaped instead to maintain,
protect, enhance or create opportunities for corporate profit.
One recent example took place after Mr. Hartmann's book was
written. Senators Patty Murray from Washington and Ted Stevens from
Alaska inserted a last-minute provision in this year's defense
appropriation bill. It directed the Air Force to lease, for ten
years, one hundred Boeing 767 airplanes, built and configured as
passenger liners, to serve as aerial refueling tankers. Including
the costs of removing the seats and installing the tanks, and then
reversing the process ten years from now, the program will cost $17
billion. The Air Force never asked for these planes, and they
weren't in President Bush's budget for the Defense Department.
Political contributions from the Boeing company totaled $640,000 in
the 2000 election cycle, including $20,230 for Senator Murray and
$31,100 for Senator Stevens.
The chairman of the CSX Corporation, Mr. John Snow, has been
nominated by President Bush to be the new Secretary of the
Treasury. Mr. Snow's company, another legal person, exercised its
Constitutional rights by contributing $5.9 million to various
campaigns -- three-quarters of it to Republicans -- over seven
election cycles. It was a wise investment. In 3 of the last 4
years, averaging $250 million in annual profits, CSX paid no
federal income taxes at all. Instead, it received $164 million in
tax rebates -- money paid to the company by the Treasury
No, this is not what the Founding Fathers intended democracy
to be. Thomas Jefferson and James Madison, as Mr. Hartmann details,
were seriously anxious about "moneyed corporations" and their
potential interference in public affairs. The Bill of Rights these
two men drafted contained the ten Constitutional amendments that
survive, and two more that did not: one was to control corporate
expansion and dominance. (The other was to prohibit a standing
As the 19th century wore on American corporations entered
lawsuit after lawsuit to achieve a strategic objective: corporate
personhood. With that, they could break the leashes of social
control and regulation. They could sue county commissioners. Or
lease their unsold airliners to the Air Force. Or collect millions
in tax rebates.
In his spellbinding Chapter 6 -- "The Deciding Moment" -- Mr.
Hartmann tells how corporate personhood was achieved.
Orthodoxy has it the Supreme Court decided in 1886, in a case
called Santa Clara County v. the Southern Pacific Railroad, that
corporations were indeed legal persons. I express that view myself,
in a recent book. So do many others. So do many law schools. We are
Mr. Hartmann undertook instead a conscientious search. He
finally found the contemporary casebook, published in 1886, blew
the dust away, and read Santa Clara County in the original, so to
speak. Nowhere in the formal, written decision of the Court did he
find corporate personhood mentioned. Not a word. The Supreme Court
did NOT establish corporate personhood in Santa Clara County.
In the casebook "headnote," however, Mr. Hartmann read this
statement: "The defendant Corporations are persons within the
intent of the clause in section 1 of the Fourteenth Amendment . .
. which forbids a State to deny to any person within its
jurisdiction the equal protection of the laws." Here, anyway,
corporate personhood was "provided" -- in the headnote, instead of
the formal written decision of the Supreme Court. But that's not
What is a "headnote?" It is the summary description of a court
decision, written into the casebook by the court reporter. It is
similar to an editor's "abstract" in a scientific journal. Because
they are not products of the court itself, however, headnotes carry
no legal weight; they can establish no precedent in law. Corporate
personhood, Mr. Hartmann discovered, is simply and unequivocally
The court reporter for Santa Clara County was Mr. John
Chandler Bancroft Davis, a graduate of Harvard Law School.
Mr. Hartman has in his personal library 12 books by Davis,
mostly original editions. They display Davis's close alliance with
the railroad industry, and they support persuasively Mr. Hartmann's
argument that Davis injected the personhood statement deliberately,
to achieve by deceit what corporations had so far failed to achieve
If Davis knew his headnote was legally sterile, though, we can
only speculate about his tactics. Perhaps he thought judges in the
future would read his headnote as if it could serve as legal
precedent, and would thereafter invoke corporate personhood in
rendering court decisions. That would be grossly irregular, and it
would place corporate personhood in stupendous legal jeopardy if it
ever came to light. But something of that sort must have happened,
because corporate personhood over time spread throughout the world
of commerce and politics.
Mr. Hartmann doesn't fill in this blank, but his daylighting
of the irregularity will be the eventual undoing of corporate
personhood. Its alleged source in Santa Clara County is a myth, a
lie, a fraud. Corporate personhood simply cannot now survive, after
Mr. Hartmann's book, a rigorous and sustained legal attack.
Sustained it will have to be, for years or decades or even
longer: corporations will fight the attack bitterly, but we now
know corporate personhood has utterly no basis in law.
This article is not copyrighted, so permission to reproduce it
is unnecessary. Richard W. Behan's current book is Plundered
Promise: Capitalism, Politics, and the Fate of the Federal Lands
(Island Press, 2001). For a description of the book, a synopsis,
and further information, go to here. Mr. Behan is currently working on a more broadly rendered critique, Derelict Democracy: A Primer On the Corporate Seizure of America's
Agenda. He can be reached by e-mail here. For
more on Mr. Hartmann's book, go here.
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