“Did The Founding Fathers Intend For Corporations To Be Covered

By The Bill Of Rights?”

By Susan Burns Feb. 19, 2016

To begin this paper, I must offer two caveats. First, I am not now, nor have I ever been a lawyer, let

alone a corporate lawyer. Secondly, I think we all have come to know a bit more about the late Justice

Antonin Scalia this week. His continued insistence on the importance of the original intent of the U.S.

Constitution is even echoed in the framing of the question I will attempt to tackle today. That question is

“Did the Founding Fathers intend for corporations to be covered by the Bill of Rights?” Did the Founding

Fathers intend to put limits on the behaviors of corporations? How did we go from “We, the people,” to

“money is speech and “corporations are persons?” Is that a good thing, and if we think not, what can

we, the people do about it?

As is the Quest Club tradition, that simple original question has led me on a merry chase through sleep-

inducing law books and two centuries of court opinions, political theorist’s writings from Adam Smith,

Hume, Hobbes, and Locke, as well as Jefferson, Madison, Mason, Hamilton and Jay. I’ve read

Washington’s letters expressing his frustrations with the sorry state of affairs under the state-centric

Articles of Confederation and the post-Revolutionary War debates of Federalists and Anti-Federalists. It

has been a fascinating path over some 700 years of economic and political history, populated by a Pope,

pashas, Dutch and English explorers, the slave trade and women’s suffrage, a lucrative client for

Abraham Lincoln, a possibly corrupt Chief Justice, and the evolution of multinational companies.

Arriving at today, on our TVs and favorite media, billionaires and secret “superPACS” are pouring dollars

in to be converted to loud speech and gerrymandered districts – all in a frantic power-struggle to

preserve a new status quo that some rational persons believe threatens the very core of our nation’s

great experiment in self-governance. Former Secretary of Labor Robert Reich wrote just a few days ago,

this description of the political situation today:

“No candidate or president can mobilize the public against the dominance of the moneyed

interests while being dependent on their money. And no candidate or president can hope to

break the connection between wealth and power without mobilizing the public.”

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Page 2

“This system is not sustainable. We must get big money out of our democracy, end crony

capitalism, and make our economy and democracy work for the many, not just the few.”1

On the other hand, the late Justice Scalia, as a guiding light of the powerful Federalist Society, noted

during the arguments before the court on Burwell v. Hobby Lobby that “most corporations are

“indistinguishable from the individual who owns them.”2 And conservative columnists, including George

Will just last week, note that the rights corporations seek to assert are useful and important. How is it,

those in favor pointedly ask, that The New York Times can assert a right to freedom of speech but 100%

of the shareholders of a company are not entitled to put a religious belief they share into practice in the

business they own? And if an order of nuns is not entitled to follow the directives of the Catholic Church,

who is? As Will notes:

“The decision (Citizen’s United vs. Federal Election Commission) simply recognized that

Americans do not forfeit their First Amendment rights when they come together in incorporated

entities to magnify their voices by speaking collectively.

“Opposition to Citizens United is frequently distilled into the slogan that “corporations are not

people,” to which Sen. Elizabeth Warren (D-Mass.) adds this example of progressive insight:

“People have hearts. They have kids. They get jobs. They get sick. They cry. They dance. They

live. They love. And they die.” And a few teach at Harvard Law School, as Warren was able to do

only because Harvard did not die: It is descended from the first corporation chartered in

Colonial America.”3

The debate of Reich, Warren, Scalia and Will would be very familiar to the Founding Fathers, who might

wonder that after 220 years more effort, we are still sorting through just what is meant by “property,”

“rights,” “liberty,” and “the pursuit of happiness.”

Let me first give you a short answer to the original question: No, the Founding Fathers did NOT intend

for corporations to be covered by the Bill of Rights. I am convinced that if you were able to suggest,

during that fateful Summer of 1787 and the long ratification struggle the next 4 years, that someday the

federal government would permit owners of large companies employing thousands of people and doing

1 Robert Reich blog posts retrieved from https://www.google.com/webhp?sourceid=chrome-

instant&ion=1&espv=2&ie=UTF-8#q=robert%20reich%20on%20moeny%20in%20government, “It Takes a Movement,” Feb. 1, 2016, and “Why We Must Try,” Feb. 7, 2016. 2 New York Times Opinion Page, “The Rights of Corporations,” Sept. 21, 2009, retrieved from

http://www.nytimes.com/2009/09/22/opinion/22tue1.html?_r=1 3 George Will, The Washington Post, Feb. 12, 2016 https://www.washingtonpost.com/opinions/progressives-anti-

free-speech-itch/2016/02/12/387c1522-d0e8-11e5-b2bc-988409ee911b_story.html

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Page 3 business all over the globe to claim the right to impose the Chairman’s religion on those employees or to

secretly fund candidates for election, I suspect you would have found both Federalists and Anti-

Federalists quite willing to beat you with their walking sticks. But why are there virtually no mentions of

the role of business in the future government? Why only one clause about commerce and only a handful

on surviving comments from letters or notes of debates? That’s where the history lesson could be

useful.

The 1700s were the heyday of the world’s first multi-national corporations. In his book Merchant Kings:

When Companies Ruled the World, 1600-1900, Stephen Brown writes about six monopolistic trading

companies. One, the British East India Company, plays a particularly vivid role in the wars that

eventually led to England’s North American colonies winning independence. Of these companies, Brown

opens his book with this:

“Monopoly trading companies were the unofficial agents of European colonial expansion. They

seized control of vast territories and many peoples, acquiring a variety of governmental and

military functions in the wake of their commercial success. …The merchant trading companies

maintained their own police forces and sometimes, standing armies, and either controlled the

local governments or became the sole governments of their territories. These territories were

managed as business interests, in which people were considered as employees, customers, or

competitors. Beginning as traders [or explorers or colonists], the leaders of these companies …

ended up with dictatorial political power over millions of people.”4

On this continent, the largest such trading companies were the East India Company, the Hudson Bay

Company, and the Virginia Company. Washington’s military units in the French and Indian Wars were

reliant on the funding obtained from England by Lt. Gov.

Dinwiddie of the Virginia Company.

The colonial system is the ocean in which the colonists swam –

and the tyranny of chartered overlords was not a mere

rhetorical phrasing for them. For example, consider the

incident in Boston Harbor that just 14 years before the

Constitutional Convention. Several of those same Founding

4 Stephen Brown, Merchant Kings, pp. 1-2.

Figure 1: 1707 flag of the East India Company

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Page 4 Fathers had watched (or perhaps even joined) a mob action that dumped more than 92,000 pounds of

tea, worth $1.7 million in today’s dollars into Boston Harbor.5 The “Tea Party” had culminated several

years of colonists’ disputes with the East India Company. At that time, the EIC had the largest

merchant navy in the world and conducted and controlled 50% of world trade. 6

For all the power wielded today by the world’s largest corporations – whether ExxonMobil, Walmart or

Google – they are tame beasts compared with the ravaging territorial appetites of the militarized East

India Company. The company had just conquered, with an army of hired mercenaries, the Mughal

Empire of India. The waves of “loot” that were drained into England following that 1765 victory caused

an enormous bubble of wealth, which like all bubbles, led to a crash. To prop up sagging profits, the

desperate directors of the company attempted to avert bankruptcy by appealing to Parliament for

financial help. This led to the passing of the Tea Act in 17737 allowing the company to transport huge

quantities of tea, free of tariffs, to America, while at the same time, the non-EIC traders based in the

colonies were declared smugglers, and had to pay the tariffs. This was the final insult for the Bostonians

-- part of what the Declaration of Independence calls “a long train of abuses and usurpations, pursuing

invariably the same Object (that) evinces a design to reduce them under absolute Despotism.” The

colonists had had enough and they took action to empty the EIC ships in the harbor,8 ultimately sparking

the Revolutionary War.

After winning the Revolution, the 13 colonies replaced the Continental Congress with the Articles of

Confederation. The newly formed states quickly began to contend with each other, imposing tariffs and

taxes, claiming each other’s lands, and ignoring court decisions and more. Under the deliberately

toothless Articles, the government consisted only of Congress, with neither executive nor courts. Worse,

the Confederation Congress at this time frequently lacked a quorum to take official action and rarely had

any money to pay for any action it might take.9 Washington wrote to Madison in October of 1785, “We

either are a united people, or we are not. If the former, let us in all matters of general concern act as a

nation. … If we are not, let us no longer act a farce by pretending it.”10 At the time, matters of

competition, distrust and even armed rebellion had become so rife under the floundering Articles that

5 Retrieved from http://www.bostonteapartyship.com/boston-tea-party-history

6 From the East India Company website, http://www.theeastindiacompany.com/

7 New World Encyclopedia online, British East India Company article retrieved from

http://www.newworldencyclopedia.org/entry/British_East_India_Company 8 Thomas Hartmann, Unequal Protection, p. 55.

9 David O. Stewart, Summer of 1787, p. 5

10 Stewart, Ibid., p. 8

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Page 5 there were growing suggestions that the 13 new states should form three nations, breaking into North,

Mid-Atlantic and South. Each region had its own distinct history, heritage, economic strengths and

physical resources. The Federalists, including Washington, Franklin, Madison, Hamilton and others did

not want to see their efforts to gain freedom, fray into small, quarreling states ripe for recapture by now

nationalized British forces.

After the contentious work of crafting the new charter, a series of famous essays were published to

define and clarify the concerns both of those who favored the new Constitution and those who came to

be called The Anti-Federalists. By 1789, all the states had ratified the Constitution and the work of

inventing a government to carry out the charter began. (For your reading this evening, the handout on

the table includes a summary of the points of each side. You may notice that quite of few of these topics

remain points of debate in this year’s election.)

The Anti-Federalists, which included Patrick Henry, Richard Henry Lee, Samuel Adams and others11

argued that the Constitution lacked specific limits on government power over individual liberties.

Federalists argued that the Constitution did not need a bill of rights, because the people and the states

kept any powers not given specifically to the federal government. Madison, by then a member of the

brand-new U.S. House of Representatives, went through the Constitution itself, making changes where

he thought most appropriate. But several Representatives, led by Roger Sherman of New York, objected

that Congress had no authority to change the wording of the Constitution itself. Therefore, Madison’s

changes were presented as a list of amendments that would follow Article VII. The House approved 17

amendments. Of these 17, the Senate approved 12. Those 12 were sent to the states for approval in

August of 1789. Of those 12, 10 were quickly approved (or, ratified). Virginia’s legislature became the

last to ratify the amendments on December 15, 1791.

The Bill of Rights is a list of limits on government power. What the Founders saw as the natural right of

individuals to speak and worship freely was protected by the First Amendment’s prohibitions on

Congress from making laws establishing a religion or abridging freedom of speech. For another example,

the natural right to be free from unreasonable government intrusion in one’s home was safeguarded by

the Fourth Amendment’s warrant requirements.

So what did this new charter say about the federal government’s role in regulating commerce? The only

mention of commerce in the main body of the Constitution is in Article 1, Section 8, “The Commerce

11

Retreived from http://www.slideshare.net/mvinickas/federalists-and-anti-federalists

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Page 6 Clause,” which says “The Congress shall have the power … to regulate commerce with foreign nations,

and among the several states, and with the Indian tribes.” Nowhere is the term “corporation”

mentioned, and the word “persons” is used rarely – most notably in the phrase “free persons” in Article

1, Section 2’s famous apportionment clause counting slaves as “three fifths of all other Persons” and in

Article IV, where it refers to “persons charged with treason, felony or other crime.” In general, the

chartering of corporations was one of the powers “not otherwise delegated” that are protected in

Amendment 9. Distrust of corporations ran so deep that Thomas Jefferson proposed, unsuccessfully,

that freedom from monopolies be included in the Bill of Rights. He later wrote, “I hope that we shall

crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our

government to a trial of strength, and bid defiance to the laws of our country.”12

With that history review under our belts, we have arrived at a point where discussions of the law take

precedence. Sir William Blackstone, the great English jurist and a contemporary of Washington and

Franklin would have been well-known to younger lawyers including Madison and Jefferson. Blackstone

defined a corporation as an “artificial person constituted to maintain perpetual succession and enjoy

legal immortality, in order to preserve Personal rights.” He noted that in English law, there are two types

of corporations, the corporation sole (and example of that would be the King of England) and

corporation aggregate, which is the more familiar form composed of a group of individuals. In England,

there can be three types of corporations aggregate: those chartered through a grant from the King,

statutory through an Act of Parliament, and registered after individuals agree to band together for a

shared purpose.

The concept of the group acting as a unit dates back to the mid 1200s, when Pope Innocent IV is

credited with a legal brainstorm to declare monasteries, abbeys and universities being established all

over Christendom as persona ficta, or “fictional persons.” By defining a group of people a single legal

entity, he gave them immortality and stability. Thus, the Roman Church can be considered as the oldest

“corporation.” In those turbulent times, as Crusaders roamed and orders and new schools and churches

were founded in the wake of St. Francis and St. Dominic, this allowed the new centers of devotion to

exist while simultaneously, the individual monks and clerics could remain pledged to poverty. As

12

Tom Stites, “How corporations became 'persons': The amazing true story of a legal fiction that undermines American democracy.” UU World magazine, May/June 2003 issue; Retrieved from http://www.uuworld.org/articles/how-corporations-became-persons#correction

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Page 7 "fictional people," the persona ficta could not be excommunicated or considered guilty of negligence.

Property left to eth church could be shielded the property from seizure. 13

Leaping ahead to the 1600s, the English, Dutch and Russian merchants adapted the fictional person idea

to allow them to band together as joint-stock companies, pooling resources, as in Lloyd’s of London or

the East India Company, to share the risk on shipping and explorations. And, as we have already heard,

that arrangement worked out quite well for many of the investors.

Once the United States had an established national court system, it did not take long for the question of

the durability of charters to arise. In the 1819 Dartmouth College v. Woodward decision, Chief Justice

John Marshall echoed Blackstone when he defined a corporation as:

“an artificial being, invisible, intangible, and existing only in contemplation of law. Being the

mere creature of law, it possesses only those properties which the charter of its creation confers

upon it, either expressly or as incidental to its very existence. These are such as are supposed

best calculated to effect the object for which it was created. Among the most important are

immortality, and, if the expression may be allowed, individuality; properties by which a

perpetual succession of many persons are considered as the same, and may act as a single

individual. They enable a corporation to manage its own affairs, and to hold property without

the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the

purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of

men, in succession, with qualities and capacities, that corporations were invented, and are in

use. By these means, a perpetual succession of individuals is capable of acting for the promotion

of the particular object, like one immortal being."

During that same important 1819 set of decisions, Marshall’s fabled pro-business attitude peeks through

in the majority opinion giving a green light to the establishment of a Second Bank of the United States in

McCulloch v. Maryland. Listen to how a prohibition becomes permission:

“Among the enumerated powers, we do not find that of establishing a bank or creating a

corporation. But there is no phrase in the instrument which, like the Articles of Confederation,

excludes incidental or implied powers and which requires that everything granted shall be

expressly and minutely described. Even the 10th Amendment, which was framed for the

purpose of quieting the excessive jealousies which had been excited, omits the word

13

John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal, Vol. 35, April 1926, pages 655-673.

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"expressly," and declares only that the powers not delegated to the United States, nor

prohibited to the States, are reserved to the States or to the people, thus leaving the question

whether the particular power which may become the subject of contest has been delegated to

the one Government, or prohibited to the other, to depend on a fair construction of the whole

instrument.”14

In Indiana, like many states, if you wish to create a business, there are informal and formal ways to

structure the formation of the business. Informal forms of business formation are the Sole Proprietor

and Partnership. To form one of six (6) types of business associations formally recognized under Indiana

law, the new corporation must file organizational documents with the Corporations Division of the

Secretary of State:15 The forms are:

o Corporation: A legal entity which is created by filing Articles of Incorporation. The

Corporation itself assumes all liabilities and debts of the Corporation. A corporation is

owned by shareholders. A shareholder enjoys protection from the corporation's debts and

liabilities.

o S-Corporation: After filing Articles of Incorporation, a Corporation may seek to obtain S

Corporation status for federal income tax purposes. The income of an S Corporation is

taxed only once: at the employee or shareholder level. To qualify, the corporation may not

have more than 75 shareholders and must meet other certain Internal Revenue Service

criteria.

o Limited Liability Company: An LLC is a formal association which combines the advantage of

a corporation's limited liability and the flexibility and single taxation of a general

partnership. An LLC has members rather than shareholders. A member enjoys protections

from the liabilities and debts of the LLC. Although not required by law, an LLC should

operate under an Operating Agreement which is like a Partnership Agreement.

o Limited Partnership: A partnership with at least one General Partner and one Limited

Partner. A limited partner's liability is limited to the amount invested, while the General

Partner(s) assumes all the liabilities and debts of the partnership.

14

Chief Justice Marshall writing for the majority retrieved from https://www.law.cornell.edu/supremecourt/text/17/316#writing-USSC_CR_0017_0316_ZO 15 From An Entrepreneur’s Guide to Starting a Business in Indiana posted on the website of Indiana Secretary of State Connie Lawson. This text was retrieved from http://www.in.gov/sos/business/2428.htm .

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o Limited Liability Partnership: A General Partnership which elects to operate as an LLP. To

operate as an LLP, a Registration must be filed with the Secretary of State. Unlike a General

Partnership, the partners in an LLP enjoy protection from many of the partnership's debts

and liabilities.

o Nonprofit Corporation: A corporation whose purpose is to engage in activities which do not

provide financial profit to the benefit of its members. Such corporations must obtain

nonprofit or tax exempt status from the IRS and Indiana Department of Revenue to be free

from certain tax burdens. The section of the IRS Code governing whether entity will be

taxed or exempt from taxation is Section 501c, within which are nine (9) categories

depending on what activities for the public good the new entity intends to conduct. Some

will do charity or educational work, some will be political or lobbying, some will operate

philanthropic foundations.

As John Marshall listed, the formally constituted corporate enterprise enjoys a few key advantages for

its physical human owners:

o Shielded from personal liability;

o No expiration date

o Can loan and borrow money; amass savings and pay dividends

o Own and sell property

o Can enter into contracts

o Can file lawsuits, seek injunctions, and be sued

o Hire employees

o Pay taxes

o Can buy and sell other corporations

o Can keep and bear arms.16

Corporations also come with a few limitations:

o Double taxation – both for the corporation itself and, when dividends are paid, the human

beings who receive the corporate payments must pay income tax on the payments.

o Is subject to municipal zoning laws and local taxes

o Is subject to regulation under the Commerce Clause.

16

Jim Seidman, Quora blog, “U.S. Supreme Court: Should Corporate Personhood as it currently stands be undone or fixed? And if so, how?” Sept. 2, 2013, retrieved from https://www.quora.com/U-S-Supreme-Court/Should-corporate-personhood-as-it-currently-stands-be-undone-or-fixed-If-so-how

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Page 10

o Cannot vote.

These features are typical of most states. Some, like North Dakota and Delaware are more lenient in

their rules for incorporating. Others impose a few more burdens. But generally speaking, the advantage

of limitations on liability is tremendously attractive to businesspersons willing to take a risk on a new

venture. And -- thanks to a long series of court verdicts that can be found in your handout -- the basic

rights have been expanded to add several protections from the Amendments to the Constitution. Today,

corporations are not merely persona ficta, but also officially considered to be persons covered by most

of the Bill of Rights, thanks to the Hobby Lobby opinions and dissents. Today’s “corporate personhood”

can be summarized as the legal notion in which a corporation, separately from its associated human

beings (like owners, managers, or employees), has many, but not all, of the legal rights and

responsibilities enjoyed by natural persons (physical humans). You and I are physical humans, but I am

sure several of us here today are also associated with legal entities whose birth certificate was on paper

filed with a state government.

The rights won since becoming persons under American law, as tracked by the public advocacy group

Move To Amend, include at least the following:

1st Amendment Free Speech rights. Corporations use these rights, meant to protect human

beings from the power of the state, to influence elections through political contributions; to

advertise not only their own products but for whatever they wish, including guns, tobacco and

other dangerous products over the objections of communities; they can also avoid speech such

as regulations requiring labeling genetically modified foods.

4th Amendment Search and Seizure rights. Corporations have used these rights to avoid

subpoenas for unlawful trade and price fixing, and to prevent citizens, communities and

regulatory agencies from stopping corporate pollution and banking misdeeds during the recent

Great Recession.

5th Amendment Takings, Double Jeopardy and Due Process corporate rights. Corporations

must be compensated for property value lost (e.g. future profits) when regulations are

established to protect homeowners or communities. Corporations cannot be retried after a

judgment of acquittal in court. The granting of property to a corporation by a public official

cannot be unilaterally revoked by a subsequent public official or Act of Congress.

14th Amendment Due Process and Equal Protection corporate rights. These rights, originally

enacted to free slaves from oppression, were gradually extended to corporations by the courts.

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Corporations have used these rights to build chain stores and erect cell towers against the will of

communities; oppose tax and other public policies favoring local businesses over multinational

corporations; and resist democratic efforts to prevent corporate mergers and revoke corporate

charters through citizen initiatives.

Commerce Clause-related corporate rights. Corporations have used this section of the

Constitution (Art 1, Sec 8), for example, to ship toxic waste from one state to another over the

"health, safety, and welfare" objections of communities - claiming the waste isn't actually

"waste" but "commerce."

Contracts Clause-related corporate rights. The Supreme Court ruled in Dartmouth vs.

Woodward (1819) that a corporation is as a party in a private contract based on the Contracts

Clause (Art 1, Sec 10) rather than being a creature of public law. Even though the state creates a

corporation when it issues a charter, that state is not sovereign over the charter, merely a party

to the contract. Thus, corporations became "private contracts" with the state and, therefore,

shielded from many forms of control by We the People.

How did we get to this point, The slope began to take shape with John Marshall, but became a lot more

slippery with the persistent lawsuits filed in the wake of one of America’s most massive public works

projects ever -- the building of the railroads. As early as the 1840s, the railroads were seeking any way

possible to reduce taxes on land, maximize profits on land sales, and secure rights of way. It is hard to

comprehend the scale of the enterprise that was the building of the nation’s rail system in either

monetary, human or metallic terms. Along the way, in case after case, the railroads, like Pinocchio,

dreamed of becoming “real live boys.” For example, in 1853, the Illinois Central Railroad decided to not

pay its taxes to McLean County, Illinois. The railroad contacted a young attorney in that county, a tall

fellow known for persuasive skills. Abe Lincoln was initially reluctant to take the case, but when the

county did not answer his letter offering to represent the people in the matter, he accepted the

railroad’s offer. It turned out to be one of his largest fees ever, and, before the Illinois Supreme Court,

he argued that the Illinois State Constitution required “uniform taxation of all persons using and

exercising franchises and privileges.” Lincoln claimed the railroad was a person and thus the non-

uniform taxation of its properties was unconstitutional. Lincoln lost the “person” argument that year,

but won on a technicality of the railroad’s contract with the state, so the railroad did not have to pay the

taxes.

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Page 12 At the end of the Civil War, the divided nation added three amendments to the Constitution. The 13th

amendment abolished slavery. The 14th had several sections: to guarantee equal protection under the

law, do away with the three-fifths rule for apportionment, and limit ex-Rebel civic participation. The 15th

guaranteed citizens the right to vote, regardless of “race, color, or previous condition of servitude,”

although not as was quickly established regardless of gender. The rail lawyers, however, spotted an

opening in the 14th amendment’s equal protection language, which used “persons” instead of people.

They filed suit after suit through the 1870s, and finally in 1886, breached the wall through a surprising

opening. Newly appointed Chief Justice Morrison Waite had been President Ulysses Grant’s seventh

nominee for the vacancy and he had never been a judge in any court. In one of his early cases on the

high court, in May 1886, Chief Justice Waite informed the lawyers for Santa Clara County California

present to argue a tax case against the Southern Pacific Railroad, that “The Court does not wish to hear

arguments on the question of whether the provision of the Fourteenth Amendment … applies to

corporations. We are of the opinion that that it does.” The clerk translated that into the headnote “The

defendant corporations are persons within the intent of the clause in section 1 or the Fourteenth

Amendment… .” Until the 2014 Burwell ruling, it is surprising to realize that no actual Supreme Court

verdict ever ruled on the question.17 The headnote’s catchy phrase was treated as settled law.

The success in the Santa Clara case became a basis for so many future cases that Justice Hugo Black X in

his dissent to the Connecticut General Life Insurance v. Johnson case in 1938, noted that “Of the 14th

Amendment cases brought before the Supreme Court between 1890 and 1910, 19 dealt with African

Americans, 288 dealt with corporations.”18 The strength of the corporate quest for civil rights had led

Justice Louis Brandeis to note, five years earlier in a dissent to the Liggett Co. v. Lee case, Justice Louis

Brandeis had observed that “The prevalence of the corporation in America has led men of this

generation to act, at times, as if the privilege of doing business in corporate form were inherent in the

citizen; and has led them to accept the evils attendant upon the free and unrestricted use of the

corporate mechanism as if these evils were the inescapable price of civilized life, and hence to be

borne with resignation. Throughout the greater part of our history a different view prevailed.”

17

Thomas Hartmann, Unequal Protection, pp. 104-105. 18

Hugo Black, retrieved from https://supreme.justia.com/cases/federal/us/303/77/case.html

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Page 13 As Dalrymple noted in his history of the East India Company, “If history shows anything, it is that in the

intimate dance between the power of the state and that of the corporation, while the latter can be

regulated, it will use all the resources in its power to resist.”19

But is this really such a clear and present danger to our form of “we the people” democracy? Maybe not.

The originalists and highly influential Federalist Society commentators like to remind us, that the Bill of

Rights and the 14th Amendment do not grant the rights but instead prevent the application of laws that

would restrict the rights. So, Citizens United may say that corporations are entitled to exercise Free

Speech, but the actual text of the First Amendment is about what Congress can do: “Congress shall

make no law abridging the Freedom of Speech or of the press.” It doesn’t say, “speech by X.” Similarly,

in Burwell v. Hobby Lobby, the text under review includes the part of the First Amendment saying,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof.” It’s about limiting Congress,20 not would-be worshippers.

Finally, where do we go from here? There are several things to watch for:

1. Last week, before Justice Scalia’s death overwhelmed the news cycle, there were rumors

reported by The Washington Post and New York Times that President Obama would be issuing

an executive order to require companies doing business with the federal government to disclose

their political contributions as an effort to reduce the impact of the Citizen’s United decision.

2. Another potential source of efforts for chance comes from a familiar name among reformers,

Ralph Nader. In his newest book, he sees

“a major area of potential for building alliances comes from the deep aversion many

people have to the wars of empire and corporate control over their lives, particularly

the ever-tightening influence of Big Business on the mainstream media, elections, and

our local, state and federal governments. These power grabs are then turned against

the people themselves in harmful and lawless manners. If you are looking for explicit

labels for who would be attracted to these alliances, I see them as … people who call

themselves conservatives, libertarians, liberals, progressives, Republicans, Democrats,

19

William Dalrymple, “The East India Company: The Original Corporate Raiders” published in The Guardian, March 4, 2015, retrieved from www.theguardian.com/world/2015/mar/04/east-india-company-original-corporate-raiders 20

William Maurer, “Illuminating Citizens United: What the Decision Really Did,” Engage, Volume 12, Issue 3, November 2011, retrieved from http://www.fed-soc.org/publications/detail/illuminating-citizens-united-what-the-decision-really-did

“Did the Founding Fathers intend for corporations to be covered by the Bill of Rights?” Quest Club, 2/19/2016

Page 14

Independents, Third Partiers, capitalists, socialists, anarchists, or use any other labels

free-thinking Americans choose for themselves.” 21

3. A constitutional amendment has been proposed in the House of Representatives. The handout

includes the text. Several web-savvy organizations have put up sites to provide information on

the amendment and make it easy to track its progress. As you will note, there are aspects of the

wording that may produce future unintended consequences. For example, recalling the current

debate around whether Ted Cruz’s Canadian birth disqualifies him for the presidency, would the

phrase “natural persons” have an impact in the future on presidential eligibility for test-tube

babies?

As we come to an end of today’s exploration, let’s give three founders their just desserts as food for

thought. First how about Madison:

"There are more instances of the abridgment of the freedom of the people by gradual and silent

encroachments of those in power than by violent and sudden usurpations."22

Similarly, here is a warning from that perpetual alarmist, John Adams:

"Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the

liberties of any people. When the people give way, their deceivers, betrayers, and destroyers press

upon them so fast, that there is no resisting afterwards. … The people grow less steady, spirited, and

virtuous, the seekers more numerous and more corrupt, and every day increases the circles of their

dependents and expectants, until virtue, integrity, public spirit, simplicity, and frugality, become the

objects of ridicule and scorn, and vanity, luxury, foppery, selfishness, meanness, and downright

venality swallow up the whole society. "23

Jefferson seemed to share Madison’s concern and Adams’ fears:

“It can never be too often repeated, that the time for fixing every essential right on a legal basis is

while our rulers are honest, and ourselves united. … They will be forgotten, therefore, and their

rights disregarded. They will forget themselves, but in the sole faculty of making money, and will

never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not

21

Nader, Unstoppable, p. iii Introduction. 22

James Madison, Speech to the Virginia Ratifying Convention [June 16, 1788], retrieved from http://www.constitution.org/rc/rat_va_05.htm 23

John Adams, Novanglus Letters, 1774, retrieved from http://econfaculty.gmu.edu/wew/quotes/govt.html

“Did the Founding Fathers intend for corporations to be covered by the Bill of Rights?” Quest Club, 2/19/2016

Page 15

be knocked off at the conclusion of this war, will remain on us long, will be made heavier and

heavier, till our rights shall revive or expire in a convulsion.”24

But let’s give Mr. Justice Scalia the last word today, with a few comments from 2011 about origins and

his views about the Founders’ intentions:

“You know, if indeed the current society has come to different views, that’s fine. You do not

need the Constitution to reflect the wishes of the current society. … If the current society wants

to outlaw discrimination by sex, hey we have things called legislatures, and they enact things

called laws. You don’t need a Constitution to keep things up-to-date. All you need is a legislature

and a ballot box. You don’t like the death penalty anymore? That’s fine. You want a right to

abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot

prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy

is all about. It’s not about nine superannuated judges who have been there too long, imposing

these demands on society.”25

Or is it? Stayed tuned, my fellow Quest Club members, but do not, as Justice Scalia urges us, stay

uninvolved. Thank you.

24

Thomas Jefferson, extract from Notes on the State of Virginia, 1782, retrieved from http://tjrs.monticello.org/letter/1316 25

Commenting on his interpretation of the 14th

Amendment in an interview published in California Lawyer, January 2011, retrieved from https://ww2.callawyer.com/story.cfm?eid=913358&evid=1

“Did the Founding Fathers intend for corporations to be covered by the Bill of Rights?” Quest Club, 2/19/2016

Page 16

Additional Bibliography

o Brown, Stephen R., Merchant Kings: When Companies Ruled the World, 1600-1900, © 2009 Stephen R. Brown, St. Martin’s Press, New York, NY.

o Chernow, Ron, Alexander Hamilton, © 2004 Penguin Press, New York, NY

o Commager, Henry S., editor, Selections from The Federalist: Hamilton, Madison, Jay, © 1949 by Appleton-Century-Crofts, New York, NY

o Franklin, Benjamin, Autobiography,

o Hartmann, Thomas, Unequal Protection: The Rise of Corporation Dominance and the Theft of Human Rights, © 2002 Mythical Research and Thomas Hartmann, Rodale Press

o Heffner, Richard D., editor, Alexis deTocqueville: Democracy in America, © 1984 Richard D. Heffner, Mentor Books, New York, NY.

o Hollis-Brusky, Amanda, Ideas With Consequences: The Federalist Society and The Conservative Counterrevolution, © 2015 Oxford University Press, New York, NY.

o Koenig, Louis W. , Bryan; © 1971 Louis Keonig, G.P. Putnam’s Sons, New York, NY

o Nader, Ralph, Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State, © 2014 Ralph Nader, Nation Books.

o Slack, Charles, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech, © 2015 Charles Slack, Atlantic Monthly Press, New York, NY.

o Stewart, David O., Madison’s Gift: Five Friendships That Built America, © 2015 David O. Stewart, Simon & Schuster, New York,NY.

o Stewart, David O., The Summer of 1787: The Men Who Invented the Constitution, © 2007 David O. Stewart, Simon & Schuster, New York, NY.

o The Federalist vs Anti-Federalist Dispute: The Original Arguments for Each, © 2011 Kindle Books.

o Shapiro, Ilya and Caitlyn W. McCarthy, “So What If Corporations Aren’t People?” The John Marshall Law Review, retrieved from http://object.cato.org/sites/cato.org/files/articles/Shapiro-JMLR-vol44-n4-2011.pdf

Web resources:

o https://movetoamend.org/why-abolish-all-corporate-constitutional-rights

o www.billofrightsinstitute.org/founding-documents/bill-of-rights/

o www.thefederalistpapers.org ---

o www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution

o https://riversong.wordpress.com/myth-of-corporate-personhood/

o http://theusconstitution.org/issue/corporations

o http://www.corporatepolicy.org/issues/constit.htm

“Did the Founding Fathers Intend for Corporations to be Covered by the Bill of Rights?” 2/19/2016

Handouts1

Role of the Government Federalists Anti-Federalists

Strong government Weak government Superior to the states Inferior to the states Vision of a business based society Vision of an agrarian based society

Structure of the Government Felt that separating power among the three branches would keep one branch from becoming too powerful

Thought that the Congress had too much power and didn’t represent the interests of the people

Supported checks and balances between each of the branches

Feared the executive could become a tyrant

Economics Most Federalist politicians were wealthy Promoted the interests of the yeoman (farm

owners) Protective tariffs- makes foreign goods expensive so people buy American

Weary of big business and of the government supporting business over agriculture

Supported a National Bank to regulate money, fiscal policy

Opposed a National Bank

Individual Rights Strong government = protect individual rights Strong government = tyranny A closer state gov’t has opportunities to oppress the people than a distant federal gov’t

Wanted a Bill of Rights to protect individual liberties from government

States’ Rights Argued for federalism- power trickles down from federal to state to local gov’t

Feared states would lose all their rights

Federal gov’t should be superior to the states to promote national interests

Wanted powers not granted to the Federal gov’t to go to the states

Expansion Wanted to grow the country all the way West Thought a small republic could best protect

individual rights Felt a large republic would best serve the interests of the people and their rights

Feared expansion would hurt individual and state rights

Expansion = more markets and more resources

Standing Army Supported a standing army for national defense

Feared a standing army could be used for oppression

By M. Vinickas retrieved from http://www.slideshare.net/mvinickas/federalists-and-anti-federalists

1 Also provided each attendee with an ACLU Bill of Rights bookmark, available from https://shop.aclu.org/product/ACLU-Bill-of-Rights-

Bookmark-Pack-of-50 )

14th Amendment

Section 1.

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."2

Text of the Proposed 28th Amendment3 (House Joint Resolution 48, introduced April 29, 2015)

Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2. [Money is Not Free Speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate's own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

2 The entire Amendment has 5 sections, dealing with debt, loyalty to the union, and enforcement of the

amendment. It can be reviewed online, with interesting commentaries at http://constitutioncenter.org/interactive-constitution/amendments/amendment-xiv

3 From Move To Amend website, https://movetoamend.org/wethepeopleamendment

Figure 1: The 1707 East India Company flag.

Ralph Nader’s 25 Proposed Redirections and Reforms

Through Convergent Action4

1. Require that the Department of Defense (DOD) budget be audited annually, and disclose all government budgets. Secrecy destroys accountability.

2. Establish rigorous procedures to evaluate the claims of businesses looking for a government handout which would end most corporate welfare and bailouts.

3. Promote efficiency in government contracting and government spending.

4. Adjust the minimum wage to inflation.

5. Introduce specific forms of taxation reform as well as push to regain uncollected taxes.

6. Break up the “Too Big to Fail” banks.

7. Expand contributions to charity, using them to increase jobs and draw on “dead money.”

8. Allow taxpayers the standing to sue, especially immunized governments and corporations.

9. Further direct democracy—initiative, referendum, and recall, for starters.

10. Push community self-reliance.

11. Clear away the obstacles to a competitive electoral process.

12. Defend and extend civil liberties.

13. Enhance civic skills and experience for students.

14. End unconstitutional wars and enforce Article 1, section 8, of the Declaration of War Act.

15. Revise trade agreements to protect US sovereignty, and resume full congressional deliberations, ending fast track.

16. Protect children from commercialism and its physical and mental exploitation and harm.

17. Control more of the commons that we already own.

18. End corporate personhood.

19. Get tough on corporate crime, providing penalties and enforcement budgets.

20. Ramp up investor power by strengthening investor-protection laws and by creating a “penny brigade” to pay for an investor watchdog agency.

21. Oppose the patenting of life forms, including human genes.

22. End the ineffective war on drugs.

23. Push for environmentalism.

24. Reform health care.

25. Create convergent institutions

4 List is excerpted from Chapter 4, Page 65 of Ralph Nader’s book, Unstoppable: The Emerging Left-

Right Alliance to Dismantle the Corporate State or from https://nader.org/books/unstoppable

Court Cases on the Road to “Corporate Personhood”5 Marbury vs. Madison (1803)

Dartmouth College v. Woodward (1819)

McCulloch v. Maryland (1819)

Dred Scott v. Sanford (1857)

Paul v. Virginia (1868)

The Slaughterhouse Cases (1873)

Minor v. Happersett (1874)

Munn V. Illinois (1877)

Santa Clara County v. Southern Pacific Railroad (1886)

Minneapolis & St. Louis Railroad v. Beckwith (1889)

Noble v. Union River Logging (1893)

Plessy v. Ferguson (1896)

Lochner v. New York (1905)

Hale v. Henkel (1906)

Armour Packing Co. v. U.S. (1908)

Dodge v. Ford Motor Co. (1919)

Pennsylvania Coal Co. v. McMahon (1922)

Louis K. Liggett Co. v. Lee (1933)

Connecticut General Life Insurance v. Johnson (1938)

Grosjean v. American Press Co. (1936)

Hague v. C. I. O. (1939)

Wheeling Steel Corp. v. Glander [1949]

See v. City of Seattle (1967)

Ross v. Bernhard (1970)

Reed v. Reed [1971]

Buckley v. Valeo (1976)

U.S. v. Martin Linen Supply (1976)

Virginia Board of Pharmacy v. Virginia Consumer Council [1976]

First National Bank of Boston v. Bellotti (1977)

Marshall v. Barlow (1978)

Central Hudson Gas & Electric Corp. v. Public Sector Commission (1980)

Pacific Gas & Electric Co. v. Public Utilities Commission (1986)

Austin v. Michigan Chamber of Commerce (1990)

International Dairy Foods Association v. Amestoy

Kasky v. Nike (2003)

Federal Election Commission v. Wisconsin Right to Life (2007)

Davis v. Federal Election Commission (2008)

Citizen’s United v. Federal Elections Commission and SpeechNow.org v. FEC (2010)

FCC v AT&T (2011)

American Trading Partnership v. Bullock (2012)

Burwell v. Hobby Lobby (2014)

5 Timeline of Personhood Rights and Powers, compiled in 2002, retrieved from

http://reclaimdemocracy.org/wordpress/wp-content/uploads/2012/07/personhood_timeline.pdf

“Slavery” is the legal fiction that a person is

property. “Corporate personhood” is the

legal fiction that property is a person.” –

Prof. David Korten, When Corporations Rule

the World.

“Of the 14th Amendment cases brought before

the Supreme Court between 1890 and 1910, 19

dealt with African Americans, 288 dealt with

corporations.” – Justice Hugo Black, dissent,

Conn. General v. Johnson