Corporations Don’t Have the Same Rights as People
by David Morris
Originally published in the Minneapolis Star Tribune, September 21, 2003
In a remarkable editorial aptly titled “Even Fibs,” the Star Tribune declares, “In the realm of law, companies aren’t much more than passels of people.”
It goes on to explain why a giant corporation should be accorded the right to lie to influence public opinion. “Like it or not, for the same reason the Constitution’s framers opted to grant such rights to individuals . . . .”
This is a serious misunderstanding of the nature of a corporation and of constitutional history.
First of all, a corporation isn’t simply a bunch of people. It is a legal entity awarded attributes not available to people: perpetual life and limited liability. And those attributes, combined with the enormous economic power of large corporations, makes them creatures that need to be controlled.
As Chief Justice William Rehnquist has argued, “the blessing of potentially perpetual life and limited liability . . . pose special dangers in the political sphere.”
Unlike people, corporations are legally required to make decisions based solely on maximizing their economic gain. They cannot make the greater good a priority. Corporate morality and ethics are not guided by the Ten Commandments.
As William Jennings Bryan noted in his address to the Ohio 1912 Constitutional Convention, “Man acts under the restraints of conscience and is influenced also by a belief in a future life. A corporation has no soul and cares nothing about the hereafter . . . .”
The constitutional framers didn’t give corporations rights. They had firsthand experience of the harm that corporations like the East India Company could do. At the time of the Constitutional Convention, only about 40 business corporations had been chartered in the colonies. Most were for building bridges or roads.
In the 19th century, corporations had privileges, not rights. States severely restricted their powers and reach. Restrictions on corporate size were not uncommon. As late as 1903, almost half of the states limited the duration of corporate charters to 20 to 50 years. Legislatures revoked charters when corporations failed to live up to their responsibilities.
It is true that the Supreme Court has interpreted the Constitution as giving corporations personhood. But contrary to popular belief, it never actually ruled on that issue.
In 1886, in a case involving a railroad, Chief Justice Morrison Remick Waite, a former attorney specializing in defending railroads and corporations, simply declared from the bench, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are of the opinion that it does.”
That was a statement by the chief justice but not part of the formal ruling.
Waite’s comments led to a remarkable and pernicious development. While everyone agreed that the 14th Amendment was enacted to protect the rights of former slaves, of the civil-rights cases brought before the Supreme Court between 1890 and 1910, only 19 involved humans, while 288 were brought by corporations challenging government regulations.
Sixty years later, Justice William Douglas looked back on the 1886 case and concluded, “There was no history, logic or reason given to support that view” that corporations are legally persons.
In the last 30 years, corporations have gained enormous power. For many of us, that’s a problem that cries out for a remedy. The Star Tribune’s desire to codify the right of corporations to lie would move us in the other direction.