October 28, 2018 – The state of Massachusetts is voting on a ballot question in the upcoming 2018 mid-term election. This question–one of first impression in any state–asks the people of Massachusetts if they would be in favor of a Constitutional Amendment to ensure that corporations do not have the same rights and privileges as real people. Another question they must ask, is why would some in state legislature try to uphold corporate personhood by voting against a constitutional amendment?
Question #2 on the Massachusetts Ballot, Do You Think Corporations are “Real People”?
Ever since the inception of the “corporate personhood claim” this “artificial construct” has been an albatross around the necks of “real” people across the nation. However, that artifice of corporate personhood, is just that–an ill-begotten artifice–a sham–a lie. In fact, the idea of corporations voting conflicts with the very premise of the “one person, one vote” construct of the 1962 landmark case on legislative apportionment of voting districts, the US Supreme Court case of Baker v Carr.
Yet it is more than clear, historians have noted, our nation’s founders did not envision corporations as people. In fact, as discussed in the most recent episode of The Legal Edition, entitled “Corporate Personhood: How Big Business, Big Money & Politics is Hijacking the US Constitution” explains how the evolution of Corporate Personhood evolved–having its roots in a contrived scheme of a New York senator in the late 1800’s. That senator was Roscoe Conkling. Even though Conkling had been a member of the drafting committee of the 14th amendment–it was he who misled the US Supreme Court when he argued the case San Mateo County v. Southern Pacific Rail Road. It was there that he made his argument that because of his work on the 14th Amendment drafting committee, he knew it was never the intent of the drafters to include only natural “i.e, real” persons. However, this statement was patently untrue.
As noted by the Brennan Center, a non-partisan law and public policy institute in New York, and D.C., and The Legal Edition guest and scholar, Attorney Shanna Cleveland of Free Speech for the People, it was in 1882 that Conkling began the charade as to the drafters intent. In fact, Conkling produced a “journal” that appeared to show that the Joint Congressional Committee that drafted the 14h amendment had equivocated on the use of the word “citizen” and “person” and that the drafters chose person specifically to cover corporations. Yet, according to historian Howard Jay Graham, “[t]his part of Conkling’s journal was a deliberate, brazen forgery.” It was a boldface lie.
Nonetheless, the Santa Clara case was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in the 1978 case of First National Bank of Boston v Bellotti.
Does Corporate Speech Have the Same Value as Speech from a Living, Breathing Person?
There is no doubt, that because of Conkling’s lies and forgeries that bear on the intent of the drafters–corporations now enjoy the same rights as natural persons. In 2010, US Supreme Court case of Citizens United v Federal Election Commission case took this lie to a whole new level. With the US Supreme Court ruling in Citizens United, “political spending” was not only deemed a form of “protected speech” under the First Amendment–it provided a green-light to corporations that government may not keep corporations or unions from spending “unlimited” money to support or denounce a political candidate. This ruling breathed new life into the corporations as “people” argument–which has ever since been eroding the constitutional rights of real “humans” — real voters. As a result of fabricated lies, corporations can spend exorbitant sums of money to elect candidates “friendly” to their corporate interests–and counter to the interests of real people. Even worse, individual donors can be vastly outspent. The result: dilution of the voting interests of “real” voters –“real people” and Citizens United made this all legal. In fact, former Massachusetts governor Mitt Romney advocated for the corporate personhood mantle for corporations to enjoy–something that many individuals find unpalatable. Nevertheless, every year we see more and more money from corporations going into political campaigns to serve their own interests–to sway elections and popular opinion away from benefitting the working men and women–in favor of deep-pocketed corporations.
In fact, the Supreme Court in Citizens United, held that political speech is “indispensable to decision making in a democracy,” and that this is no less true because the speech comes from a corporation. Yet, such a ruling erodes the the fundamental rights of “real” people, “real voters” and paves the way for floods of money to enter the political and voting process to ultimately control the electorate. And where money is, power is soon to follow.
The Fourteenth Amendment Protection or Excuse
As many historians also point out, the true purpose of the 14th Amendment was to give newly freed slaves the rights of white persons under the Equal Protection Clause. Yet, with Conkling’s help in the 1880’s and that of Justice Powell who was elevated in 1972 from a lawyer working for “Big Tobacco” to a US Supreme Court Justice under Richard Nixon–the truth of the drafters’ intent for the 14th amendment was further obscured.
Unbeknownst to many, while Powell was an attorney, he created a “playbook” that he successfully utilized in his defense of “big tobacco” and he used it to help create the “corporate personhood” arguments we see used by behemoth corporations today. And during his confirmation process to the US Supreme Court–similar to what goes on in confirmations today–he did not divulged the existence of a “playbook” or any “conflict of interest” during the confirmation process. There can be no doubt that this lack of transparency set the tone for future confirmations and Supreme Court nominees to be less forthright and transparent during the confirmation process. It also signaled that corporations can act with impunity–allowing them to give extraordinary sums of money to candidates who favor the corporation’s political interests without fear of reprisal.
It is axiomatic, that over the years, there have been a number of contrived judicial arguments used to bolster corporate personhood despite the lack of legitimate historical records for them. One prominent argument is whether the 4th Amendment to the US Constitution–should protect “corporations” in the event a warrant is executed. Again, we need to look to the intent of the drafters of the fourth amendment to address that construct.
The 4th Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In reading the language of the 4th Amendment, there is clearly no mention of “corporations” and because corporations cannot “live in” houses–inquiring minds must ask, Does it seem fair or reasonable that corporations would get the same protection as someone’s home and/or personal papers? Remember, corporations are a “legal fiction” formed to provide legal shelter “separate and distinct” from their owners or shareholders so that they may avoid personal liability. But at the same time, these owners want to claim their corporations are not separate and distinct from them, and therefore should enjoy the same Fourth Amendment protection from the warrant requirement. Can they really expect to have it both ways?
Massachusetts Residents Get to Take a Stand on Corporate Personhood & Possible Amendment to the US Constitution
Placed on the Massachusetts 2018 ballot, is an initiative–if successful–would create a citizens commission to consider and recommend potential amendments to the United States Constitution to establish that corporations do not have the same Constitutional rights as human beings, and that campaign contributions and expenditures may be regulated. It fact it would provide that:
“Any resident of Massachusetts who is a United States citizen would be able to apply for appointment to the 15-member commission, and members would serve without compensation. The Governor, the Secretary of the Commonwealth, the state Attorney General, the Speaker of the state House of Representatives, and the President of the state Senate would each appoint three members of the commission and, in making these appointments, would seek to ensure that the commission reflects a range of geographic, political, and demographic backgrounds.”
As the job of the “commission” it “would be required to research and take testimony, and then issue a report regarding (1) the impact of political spending in Massachusetts; (2) any limitations on the state’s ability to regulate corporations and other entities in light of Supreme Court decisions that allow corporations to assert certain constitutional rights; (3) recommendations for constitutional amendments; (4) an analysis of constitutional amendments introduced to Congress; and (5) recommendations for advancing proposed amendments to the United States Constitution.”
Fortuitously, Constitutional scholars have even compared US Constitution to that of other nations and found that other nations do not enshrine their constitutions with protections of corporate personhood. In fact, some argue that it is not enshrined in ours–but only an artifice of the US Supreme Court.
With that being said, wouldn’t it be wise for Massachusetts to lead the nation for a Constitutional amendment that would protect private citizens from the pretense that has plagued our courts from the inception of “corporate personhood”?
If you think so, Vote Yes on ballot initiative #2, and watch: Corporate Personhood: How big Business, Big Money & Politics is Hijacking the US Constitution on TheLegalEdition.com. If you vote No, you believe ALL Corporations are very fine people and probably won’t care to watch the show. That is a choice that every real person must make.
For the sticklers on the formalities of meeting law, the Massachusetts ballot initiative provides that “The commission would be subject to the state Open Meeting Law and Public Records Law. The commission’s first report would be due December 31, 2019, and the Secretary of the Commonwealth would be required to deliver the commission’s report to the state Legislature, the United States Congress, and the President of the United States.”
The proposed law also has a “savings clause” as it provides that if any of its parts were declared invalid, the other parts would stay in effect. The proposed law would take effect on January 1, 2019.
A YES VOTE would create a citizens commission to advance an amendment to the United States Constitution to limit the influence of money in elections and establish that corporations do not have the same rights as human beings.
A NO VOTE would not create this commission.
The choice is yours–be informed–be engaged you are “real people” — Vote!
For more on Massachusetts ballot initiative–Question 2, visit BallotPedia, and Massachusetts Secretary of the Commonwealth website at: https://www.sec.state.ma.us/ele/ele18/ballot_questions_18/ballot_questions18.htm
© Copyright, 2018 – Mary Kay Elloian, MBA, JD, Esq. – TheLegalEdition.com
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