Local Commentary

COMMENTARY

September 17

Constitution never intended ‘people’ to mean GE, or P&G COMMENTARY David I. Fallk

WHAT DO you call multibillion-dollar, multinational entities that abandon their primary residences in the United States to avoid paying taxes, yet still request government subsidies and demand the same rights as ordinary American citizens? Most of us would say they are corporations, but they would prefer to be known as just “people.”

It’s hard to imagine that when the Constitutional Convention ended in 1787, the framers of that great document could have anticipated one of the most contentious issues that now confronts our nation – the concept of corporations as people. Indeed, when Thomas Jefferson penned the Declaration of Independence, he cited the natural rights that flowed from our common human “creator.” Corporations, however, are not natural beings but artificial creations of the states.

During Colonial times, the largest corporate entity was the infamous British East India Co., whose interventions with the English crown for monopolistic powers led to the original Boston Tea Party. Our infant nation was still primarily agricultural, and towns and cities were populated by tradesmen, shopkeepers and artisans.

The struggle then over the definition of persons or people involved not businesses but slaves, who many regarded as mere property and without rights. Our nation’s Civil War decided that issue and led to the Fourteenth Amendment. Ironically, that amendment and its expanded interpretation by activist, pro-business courts have led to the current dilemma.

Passage of the Fourteenth Amendment clearly was intended to negate the concept of humans as property. Yet by the end of the 19th century, an idea arose that although people could not be property, artificial legal entities could be people under the Constitution. After the Industrial Revolution created powerful businesses, banks, railroads and manufacturers, those non-human entities wanted to expand their rights.

Today, high-paid lobbyists and counsel before the courts have pressed the alleged rights of corporations to the maximum, particularly an expanded definition of the spending of campaign money as free speech. While no one has (yet) suggested that corporations have the right to vote, last year’s Supreme Court ruling in the Citizens United case opened the floodgates to allow unlimited spending by corporations to exert even more influence over elections and public policy.

Corporations do not breathe, bleed, love or express any of the emotions that make us human, nor do they fight and die for our country. They might or might not pay taxes, and they are not democratic in nature. When caught in wrongdoing, they do not go to jail. They do, however, aggregate vast sums of money and spend liberally on public relations to polish their images and influence public opinion.

How the concept of corporations as people will play out is unknown, but the concerns are real. Perhaps they were best summarized by then-Associate Justice William H. Rehnquist in a dissent in the 1978 case of First National Bank of Boston v. Bellotti. He observed, “A state grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity … (I)t might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”

As we celebrate Constitution Day today and hear cries to change the Fourteenth Amendment to prohibit citizenship to some natural-born Americans, we might instead ponder an alternate movement to change the definition of “people” under that amendment to exclude entities that aren’t natural-born at all – corporations.

David I. Fallk is a Scranton trial lawyer and president of The Committee for Justice for All, Kingston.

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