Let’s Wish Corporate Constitutional Rights a Very Unhappy Birthday

"The actual “birth” of corporate constitutional rights, often referred to as “corporate personhood,” wasn’t Citizens United; it dates to May 10, 1886 in the Santa Clara v. Southern Pacific Railroad Company ruling."

Rep. Pramila Jayapal (D-Wash.) and dozens of House Democrats introduced the We the People Amendment—which would reverse the Supreme Court’s Citizens United ruling and end corporate personhood—on April 6, 2021. (Photo: Drew Angerer/Getty Images)


The actual “birth” of corporate constitutional rights, often referred to as “corporate personhood,” dates to May 10, 1886 in the Santa Clara v. Southern Pacific Railroad Company ruling. The summary of the tax case, called the “headnotes”—not the actual decision—granted the railroad corporation with “equal protection rights” under the 14th Amendment.

"All the good work by individuals and organizations to legalize protections of individuals, communities, and nature and hold corporate entities accountable for their harms will never be systemically achieved as long as we continue to constitutionalize corporate rights as equivalent to the rights of human persons."

The 14th Amendment granted citizenship to all persons born or naturalized in the U.S, including former enslaved human beings. Although it was not intended to apply to corporations, they hijacked the Amendment for their political and economic benefit. As former Supreme Court Justice Hugo Black declared, “Of the cases in this court in which the 14th Amendment was applied during the first 50 years after its adoption, less than one half of 1% invoked it in protection of the negro race, and more than 50% asked that its benefits be extended to corporations.”

Human persons are grossly unequal to corporations. Bankruptcy, tax, and criminal laws are more favorable to “corporate persons” than human beings. Corporations can write off certain legal expenses; real people can’t. Laws increasingly allow corporations to design arbitration rules that force employees and customers to settle disputes over unsafe products, consumer fraud, employment discrimination, nonpayment of wages, and other instances of corporate malfeasance. And unlike human persons with limited lifespans and physical mobility, corporations can live forever and legally and quickly move assets between physical locations to evade accountability.

The Santa Clara corporate perversion of the 14th Amendment profoundly shifted how corporations were defined. Until then, state legislatures granted individuals a corporate charter, or license, to conduct business. The charter established specific standards for a limited period, after which in many instances the business became public. The charter’s terms were privileges, not rights. If the business violated the charter’s terms, it was revoked by state legislatures or courts, which frequently occurred, and the company was dissolved. The same occurred following the shift from individually granted charters to the creation of state laws addressing entire categories of corporations, such as banks, railroads, and canals.

Santa Clara represented a tectonic antidemocratic shift in the authority to define corporate entities—from the state legislative arena to federal courts, specifically the U.S. Supreme Court, which was beyond the direct reach of citizens and elected officials. It unleashed business corporations to massively plunder, profit, and protect themselves from democratic accountability, resulting in the declining protection of people, communities, and the ability to ensure a livable natural world.

Corporate First Amendment political “free speech” rights to invest money in elections, including the Citizens United decision, is the most recent constitutional descendant of the Santa Clara precedent. There are many others.

√ First Amendment Right Not to Speak, Negative Speech Rights and Commercial Speech Rights

The Supreme Court overturned a California state law allowing a ratepayer advocacy group to enclose information in the utility corporations’ billing envelopes calling for regulations that would lower utility rates and a New York law that would save energy by banning the promotion of the use of electricity by a utility corporation. A court also overturned a Vermont law mandating the disclosure of a dangerous synthetic growth hormone on dairy products.These court-invented rights have been used by corporate entities to defy the legitimate rights of people to know factual information; the authority of government to protect the health, safety, and welfare of residents; the provision of basic health needs of employees; and the ability to hold corporations publicly accountable.

√ Fourth Amendment Search and Seizure Rights

The Supreme Court overturned laws mandating routine surprise inspections of corporate property, claiming the “right of the people to be secure in their persons [and] houses... against unreasonable searches and seizures” applied to corporations. These judicial decisions treat corporate entities like human persons, even though the Fourth Amendment’s original language applies only to human beings, their homes, and personal effects. Governmental attempts to protect the public from the dangers stemming from commercial activities like food contamination, drug impurities, automobile defects, and environmental hazards are thwarted by removing surprise inspections, thus allowing businesses to hide, alter, or disguise dangerous conditions.

√ Fifth Amendment Takings Rights

The Supreme Court has struck down regulatory laws protecting homeowners and workers from corporations, claiming the laws are a “taking of property without just compensation.” This includes a Pennsylvania law regulating the mining of coal beneath homes to prevent their sinking and a California law allowing union organizers from having access to agricultural employees at worksites under certain conditions. Public laws to protect residents, communities, and the natural world should supersede legally mandated compensation of lost present and future corporate profits. This is especially urgent as it becomes more evident that to tackle climate change, fossil fuels must be kept in the ground. This may simply not be possible as long as corporations can assert Fifth Amendment “takings rights.”

Corporate constitutional rights transcend Citizens United and corporate First Amendment political “free speech” rights. All the good work by individuals and organizations to legalize protections of individuals, communities, and nature and hold corporate entities accountable for their harms will never be systemically achieved as long as we continue to constitutionalize corporate rights as equivalent to the rights of human persons.

The We the People Amendment (HJR54) is the only current proposal that seeks the abolition of all corporate constitutional rights. More support is needed to add co-sponsors. The amendment, however, will never achieve sufficient power to make change until we decolonize our minds from believing that corporate rule and rights are inevitable and irreversible. A good place to start, especially on this day, is to internalize the statement: “Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that a property is a person.”

It’s time we quickly end the life of constitutional corporate persons.

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Ending all corporate constitutional rights – not just overturning Citizens United and corporate political “free speech” rights – is what makes Move to Amend unique. We are the only organization educating and organizing to enact the We the People Amendment that would abolish the constitutional doctrine that “a corporation is a legal person” and “money equals free speech.” And it’s why May 10 is such a very important date.

This systemic change has been financially supported for more than a decade by you – supporters who understand that systemic problems require systemic solutions. We’ve never depended on support from business corporations, major foundations, the super rich, or governments. It’s the only way to be politically and economically independent. This is also what makes us unique.

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