by Ken Shel
An essay about the ever-increasing role of corporations in American life.
Corporate Culture: The New American Electorate
Large corporations have commandeered the world economy to such extent that, of the one-hundred largest economies in the world, fifty-one are corporations (Shah). Those numbers don't appear alarming on the surface but placed in the framework of the 2008 collapse of the world economy, the problems of what to do about "too big to fail" takes on an alarming importance. Only a handful of America's largest corporations brought down the housing market, reallocated pension and retirement funds of millions of workers into exorbitant salaries and bonuses for corporate executives, produced massive job layoffs around the world, and caused a spike in personal and small-business bankruptcies.
Corporate representatives in government, such as Senator James Inhofe of Oklahoma, have created a "shadow government" that essentially controls American economic policy. The recent granting of human rights to non-human corporate entities has turned electoral politics into a scramble for massive campaign funds from organizations with no stake in the public interest. The American political system is now governed by those fifty-one percent economies, which have perpetual life, unlimited resources, and the ability to make their own law to assure that their rights and their power take precedent over the will of the people and the public good.
We've had amble warning about the excesses of corporate power. Thomas Jefferson wrote in 1816:
"I hope we shall take warning from the example of England and crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws our country."
And on another occasion:
"This country is headed toward a single and splendid government of an aristocracy founded on banking institutions and monied incorporations and if this tendency continues it will be the end of freedom and democracy, the few will be ruling and riding over the plundered plowman and the beggar."
"I sincerely believe that banking establishments are more dangerous than standing armies." -in a letter to Secretary of the Treasury, Albert Gallatin.
The history of the United States has no shortage of great leaders who have alerted us to the dangers of the corporate monster; Along with Thomas Jefferson, Abraham Lincoln, and Dwight D. Eisenhower issued public warnings of the encroachment of corporate money and corporate power into government.
A History of Corporate Personhood: Causes and Consequences
Section 1 of the Fourteenth Amendment, passed into law in 1869, reads:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 laws."
The Amendment was written primarily to overturn the Dred Scott decision of 1865 that denied citizenship to slaves, and clearly refers to person and citizen. But Supreme Court decisions before and after the Fourteenth Amendment have resulted in the creeping--and creepy--definition of "person" to include corporations, including multi-national corporations.
"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law." (Groningen) A corporation is not a person. American jurisprudence takes corporate strengths and human weakness into consideration in making and enforcing its laws. Prisons are built for people, but cannot contain a corporation. Corporations have perpetual life in which to realize their goals, while humans have about fifty productive and voting years. Corporations have, for all practical purposes, unlimited resources, while the average worker lives on a weekly wage. Corporations have the legal power to make laws as they wish; the citizen can cast a single vote for a representative he can trust to look out for his interest in the legislative and executive branches of government.
Corporate personhood extends back to Roman law, but its American History began with the end of the American Revolution. Citizens of the newly-found republic held contractual agreements with agencies in the mother country. Did the Revolution nullify those obligations? Could the United States legislate new laws to supersede English law that created the contracts?
Those questions came before the new Supreme Court under Chief Justice John Marshall in 1816. The state of New Hampshire had passed laws changing the charter of Dartmouth College from a private institution, chartered by the British Crown in 1769, to a state university. The college trustees filed suit. The court ruled that the charter was a contract between the king and the college trustees, and that a state cannot pass laws to alter a contract. That ruling honored corporations and people as equals in contract law.
In the case of Santa Clara County v. Southern Pacific Railroad, filed before the Supreme Court in May, 1886, "Chief Justice [Morrison] Waite said, '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 all of opinion that it does." (Supreme Court) That statement was made before arguments were heard in the case, and do not appear in the court record. Subsequent cases before the court have drawn on that case as legal precedent regardless of the error.
Since 1886, the court has heard a number of cases involving corporate personhood, and the benefit or loss to actual humans has swung in unpredictable directions. Then, in 1978, the issue of corporate personhood exploded.
The Secretary of Labor Ray Marshall brought Marshall v. Barlow's before the Supreme Court. An inspector for the Occupational Health and Safety Act (OSHA) entered Barlow's Company, a plumbing and electrical installations contractor. The president and general manager of the company denied access to the agent on the grounds that he did not have a search warrant. OSHA had the responsibility and the authority to conduct warrantless searches of businesses as a means to guarantee worker safety, but Barlow's argued that the corporation enjoyed the same Fourth Amendment guarantee of protection against illegal search and seizure as an individual. The court sided with him, and henceforth OSHA inspections of businesses must be enforced with a search warrant, or OSHA must make an appointment with the company to conduct an inspection (University of Washington).
On January 21, 2010, an appeal from the United States District Court for the District of Columbia reached the Supreme Court. Led by the court's conservative members, Citizens United v. Federal Elections Commission, citing free speech rights, struck down the McCain-Feingold Bill and allowed corporate entities to sponsor funds to political elections without revealing their source. Multi-national corporations now control the financing of elections in the United States, and political observers are predicting that corporate financial contributions to the political process could reach the hundreds of billions of dollars in the 2012 elections. Already, the Democratic Party under President Obama has appealed to the corporate interests for a dente (Reuters, Goldman). We can expect the Democrats to soften their support of workplace safety, a livable minimum wage, and government regulation of business.
With Kiobel v. Royal Dutch Shell. the U.S. Court of Appeals for the Second Circuit issued a stunning decision that a corporation cannot be sued for human rights abuses. "A panel of the court ruled 2-1 on September 17, 2010 that the Alien Tort Statute gives U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations" (Cueto).
Seeing the direction those court decisions will take the country, President Obama's plea for dente with the corporate community makes good political sense, but has the potential to forever end the democratic system. His party has traditionally championed worker safety, equal employment opportunity, and a livable wage; issues at odds with corporations. If the Democratic party is to survive--that is, to receive unlimited campaign funds from the deep pockets only corporations can provide--it must relax its support of the proletariat. Ergo, dente.
Abuses Committed by National and Multi-National Corporations
Who can forget the televised images of Enron company employees who found it hilarious that "grandmas" were in danger of dying in the heat due to the artificial electrical shortages created by Enron to hike their fees for services?
"A Defense Department auditor testified [on August 10, 2010] that DynCorp International billed the government $50 million more than the amount specified in a contract to provide dining facilities and living quarters for military personnel in Kuwait" (Haynes).
Headlines like that represent a common feature of Americans' daily lives. We have become inured to corruption. The 2010 mid-term elections resulted in a turnover of the political majority in Congress as a result of the anti-corruption mood among the electorate. Yet, many of the very people ushered into power have praised the Citizens United decision. The revolution in Washington brings to mind lyrics from a rock anthem by the British rock group, The Who: "Meet the new boss, same as the old boss."
Human rights violations by corporate entities don't often garner headlines, though. The only way to get a handle on corporations' involvement is through research. Here are just a few of those violations. For a full list of name brand-name companies engaging in behavior that might have made Genghis Khan blush, the Global Issues website at http://www.globalexchange.org/
getInvolved/corporateHRviolators.html offers a full alphabetical list of offending corporations and links to reputable organizations that back up its claims
Caterpillar, Inc. supplies equipment to the Israeli army for the purpose of destroying Palestinian homes to facilitate annexation of East Jerusalem.
The crimes charged against Chevron are too numerous to list in a paper of this scope, but they include rape, murder, political corruption, and--the plague of America's dependency on oil--environmental destruction.
Outside of the United States, the Coca-Cola Company behaves like a mafia family. Murders, kidnappings, and torture highlight its activities in Third World countries, and in some of the industrialized world, reads like intrigue and adventure fiction.
Employees of Dynacorp have been found to have engaged in sex trafficking with girls as young as twelve years old.
The Future of Corporate Personhood: Consequences
The year 2010 marked the crowning of transnational corporations as the new owners of the American government. Where it will lead us is, at this time, anybody's guess. The General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA) have prepared the way for the new leadership with International laws that supersede federal and state statutes regarding relaxed food safety governance, reduced product quality standards, a virtual end to workplace safety regulations, and the erosion of individual rights and national sovereignty. We have already seen the cost of those agreements in the recent flood of product recalls, tainted food in the marketplace, and the undermining of workplace safety laws (Wallach 23-64).
Social attitudes, too, have favored the growing power of corporate entities. Contemporary views of entrepreneurship no longer include the bootstrap legacy. An entrepreneur is now one with massive financial backing from banks and capital investment firms. The corporate culture is rapidly becoming the only socially acceptable course of economic pursuit. Employment in a large company, preferably a multinational corporation, is regarded as a most noble profession, one pursued by a majority of college students. The arts and crafts, manual trades, outdoor work, jobs in philanthropic organizations, and vocations in religious organizations are rarely considered by those who came of age in the corporate world, and--judging by a barrage of human interest stories in the media--shunned by even the chronically unemployed.
Of all the conceivable results of the corporatizing of America and the world, the bulk of them are unpleasant But that need not be the reality. The companies that now own the country's political and judicial system rely on consumerism to feed their gluttony, and they have the power to destroy the consumer culture through the elimination of a middle class with disposable income. They must take care that, in bringing down American wages, they do not undermine their own profits. Worldwide, people have shown a surprising tendency throughout history to sacrifice their individual pursuits and band together to resolve injustices. If our new masters do not tread carefully--with much more care than they have in the recent past--they could find themselves pitted against the very source of their power: the consumer.
Kiobel v. Royal Dutch Shell Petroleum (No Corporate Liability Under AlienTort Claims Act). Order Affirming Motion to Dismiss
Contributor: Santiago Cueto
Retrieved from http://www.jdsupra.com/post/documentViewer.aspx?fid=80e9579b-4600-4e73-9fb6-3b0a7626ab09
V. Dion Haynes, "DynCorp Billed U.S. $50 Million Beyond Costs in Defense Contract"
Quoting the Washington Post, August 12, 2009
Lori Wallach, essay, "Hidden Dangers of GATT and NAFTA"
The Case Against Free Trade, San Francisco: Earth Island Press, 1993. Print.
Julianna Goldman, Hans Nichols, Mark Drajem and Lizzie O'Leary
"Obama Wants a Detente with Business: Once the midterm elections are over, the President plans to make up with business"
October 6, 2010, 11:00PM EST
Groningen College; From Revolution to Reconstruction - an HTML project. Retrieved from http://www.let.rug.nl/usa/D/1801-1825/marshallcases/mar02.htm
Mythical Intelligence, Inc. and Thom Hartmann
ReclaimDemocracy.org; 222 South Black Ave.* Bozeman * MT * 59715 * 406-582-1224
"Santa Clara County v. Southern Pacific Railroad Company; 118 U.S. 394;
Error to the Circuit Court of the United States for the District of California"
Retrieved from http://www.reclaimdemocracy.org/personhood/santa_clara_vs_southern_pacific html
Thom Reuters, "Obama Wants a Dente with Business," Sun. 07 November 2010
"The Rise of Corporations," by Anup Shah
Supreme Court; SANTA CLARA COUNTY V. SOUTHERN PACIFIC R. CO., 118 U. S. 394 (1886)
Retrieved from http://supreme.justia.com/us/118/394/case.html
University of Washington
MARSHALL v. BARLOW'S, INC., United States Supreme Court, 436 U.S. 307 (1978)
Timothy Gorringe, Fair Shares: Ethics and the Global Economy, New York, Thames & Hudson, 1999. Print.