A long time ago in England, people could go pretty much wherever they wanted. It was all the Commons. Gather firewood, shoot game, do whatever to subsist. Then the Normans came from the continent with superior weapons and a foreign concept called “property.” The head men staked out boundaries and told those living within that to remain they must give food and firewood, called “rent.” If they left, they would be homeless, but that was declared a criminal offense. These headmen later made themselves nobility and today in England they are represented in government as the House of Lords.
An economy with trade began in England and then across to Europe. Some merchants began pooling resources to build ships and other physical means to promote commerce. They called themselves guilds. By now, property wasn’t just land, but physical stuff as well. The king looked at this and saw personal profit but a threat as well. What if a guild became richer than he was?
So the king said, “I’ll allow this for a percentage of profit (a tax) but only under a charter I grant you, which is revokable.”
They were the first corporations. The 13 colonies were chartered corporations. Today’s corporations are chartered by one state or another, and still at least in theory revokable.
Corporations wished for a long time they could become like natural persons under the law, because it would shield them from state and local taxes. An opening came with passage of the Fourteenth Amendment. It reads in part, “nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”
It was intended to help newly freed slaves, but largely failed as the South devolved into a century of Jim Crow oppression.
But over the next 30 years, 135 cases were filed claiming that the Constitution’s framers’ intended that the definition of “person” should include the corporation, with rights secured under the Equal Protection Clause.
By 1886, the Supreme Court was packed with former railroad corporation attorneys and former legislators in the pocket of the railroads. In Santa Clara County v. Southern Pacific Railroad Company, Chief Justice Waite declared the court’s unanimous opinion that corporations are people.
Since that time, decree by decree, The Supreme Court has “found” corporations to have nearly every right accorded to natural people in the Bill of Rights. This despite the fact that corporations have no soul or conscience, never die a natural death; rather they are just ink on paper. The culmination has been Citizen’s United v. Federal Elections Commission, awarding corporations First Amendment rights to free speech and through a convoluted logical process the right of a person, union or corporation to spend without limits to influence an election. A corollary decision in 2014, McCutcheon v. Federal Elections Commission, legitimized “dark money;” corporations and rich people could spend at will while concealing their identity from the public.
Reverting back to the Commons may be unattainable for now, but grassroots organizations are promoting passage of an amendment to the Constitution that would reverse the Citizen’s United decision. Their strategy is to persuade city and county councils to pass resolutions, leading up to ratification by the states and then congressional approval. If Kauai County Council considers such a resolution, they should be encouraged to pass it.
Kip Goodwin is a resident of Wailua.