“Could a second Donald Trump presidency slide into dictatorship? A sudden spate of dystopian warnings has got America talking about the possibility less than a year before the US elections.
“Dark scenarios about what could happen if the twice-impeached Republican former president wins in 2024 have appeared in the space of a few days in major US media outlets that include The Washington Post, The New York Times and the Atlantic.”
So, where are we now and how the hell did we get here? It turns out we are seeing the consequences of a corrupt, bribed Supreme Court from over 150 years ago.
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It was a fraud at the time, the result of a Supreme Court Justice having been bribed by the big railroads, and continues to be a fraud to this day. This didn’t originate with an American billionaire paying off Clarence Thomas; that’s just the latest incarnation of it.
Corporations are pouring increasingly large amounts of money into politics, and like an invisible planet or black hole, it warps our political system to the point it has brought us Donald Trump.
And it’s all because of a doctrine created out of whole cloth by the US Supreme Court in the late 19th century called “Corporate Personhood.” It has become one of the most destructive forces in American politics.
The history is fascinating, and if we truly want to pull this horrible weed out by the root, we have to understand where it first grew.
While much of the world tries to emulate the American experiment, because of this doctrine created by the Court, contemporary America is moving in the direction of Mussolini’s corporate-state partnership.
Executives from regulated industries are heading up the agencies that regulate them. Other symptoms of increasing corporate control of the nation include widespread privatization and so-called public-private partnerships: euphemisms for shifting control of a commons’ resources (like water or electricity) from governments, responsive to their voters, to the morbidly rich leaders of massive business operations.
Since five corrupt Republicans on the Supreme Court fully legalized political bribery, corporations and their agents have become the largest contributors to politicians, political parties, and so-called “think tanks,” which both write and influence legislation.
That distinction between corporate control and human control is absolutely pivotal: governments that “derive their just powers from consent of the governed” should be exclusively responsible to citizens and voters: their agencies were originally created exclusively to administer and protect the resources of the commons used by those same citizens and voters.
Corporations, on the other hand, are responsible only to stockholders and are created exclusively to produce a profit for those stockholders. When aggressive corporations control political power, the results are predictable.
We have recently seen, all too often, the strange fruits borne by placing a corporate sentry where a public guardian should stand: for instance, we now know that the California energy crisis of some years ago was manipulated into existence by energy companies to get rid of Democratic Governor Gray Davis.
The cost to humans for that corporate plunder was horrific, but a corporation that’s now been convicted of multiple deaths of Californians still has a stranglehold on that state’s energy.
How did it happen that corporations have the ability to do such things even when the public protests vigorously?
It turns out, says the Supreme Court, that corporations have human rights. In several different decisions, all grounded on an 1886 case, the Court has ruled that corporations are entitled to a voice in Washington and state capitols, the same as you and me.
Our nation was built on the ideal of equal protection of people (regardless of differences of race, creed, gender, or religion), and corporations are much bigger than people, much more able to influence the government, and don’t have the biological needs and weakness of people.
The path from government of, by, and for the people to government of, by, and for the corporations was paved largely by an invented legal premise embraced by the Supreme Court that corporations are, in fact, people, a premise called “corporate personhood.”
This doctrine states not just that people make up a corporation, but that each corporation, when created by the act of incorporation, is a full-grown “person” — separate from the humans who work for it or own stock in it — with all the rights granted to human persons by the Bill of Rights.
This idea would shock the Founders of the United States.
James Madison, often referred to as “the father of the Constitution,” wrote:
“There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by…corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses.”
And in a letter to James K. Paulding, 10 March 1817, Madison made absolutely explicit a lifetime of thought on the matter.
“Incorporated Companies,” he wrote, “with proper limitations and guards, may in particular cases, be useful, but they are at best a necessary evil only. Monopolies and perpetuities are objects of just abhorrence. The former are unjust to the existing, the latter usurpations on the rights of future generations.”
The concept of “corporate personhood” hasn’t been around forever; it arrived long after the death of James Madison (and the entire Revolutionary Era generation). Although the Court first recognized a corporation as having some personhood rights in 1815, today’s Corporate Personhood crisis really kicked off in 1886, when the U.S. Supreme Court’s reporter
inserted a personal commentary called a headnote into the decision in the case of Santa Clara County v. Southern Pacific Railroad.
For decades the Court had repeatedly ruled against the doctrine of corporate personhood, and they avoided the issue altogether in the 1886 Santa Clara case, but Court Reporter J.C. Bancroft Davis (a former corporate president) added a note to the case saying that the Chief Justice, Morrison R. Waite, had said that “corporations are persons” who should, Davis suggested, be granted human rights under the free-the-slaves Fourteenth Amendment.
Davis had recorded a remark made in a side conversation that was never part of a ruling by the Court; he phrased it in a way that implied it was part of the decision, but it wasn’t.
In this, he was being encouraged by Stephen J Field, the Supreme Court Justice from California who had been bribed by one of the nation’s largest railroads.
When I was writing my book on the 14th Amendment,
Unequal Protection, searching the Library of Congress’ archives we found a note in Waite’s handwriting, specifically saying to Davis, “We avoided meeting the constitutional question in the decision.”
As far as I can tell, nobody had seen the document in over 100 years.
Nonetheless, the headnote for that decision, falsely claiming the Court ruled that corporations have rights as persons, was published in 1887 (a year Waite was so ill he rarely showed up in court; he died the following year).
Since then, corporations have claimed that they are persons — pointing to that decision and its fraudulent headnote — and, amazingly enough, in most cases the courts have agreed.
Many legal scholars think it’s because the courts didn’t bother to read the case but instead just read the headnote, which has no legal standing. But at this point, after a century of acceptance, the misreading has been repeatedly quoted by the Supreme Court itself, making it into real law.
The impact has been almost incalculable. As “persons,” corporations have claimed the First Amendment right of free speech and — even though they can’t vote — they now spend billions of dollars to influence elections, prevent regulation of their own industries, and write or block legislation.
Before 1886, in most states this behavior was explicitly against the law.
In Wisconsin, for example, on the eve of his becoming chief justice of Wisconsin’s Supreme Court, Edward G. Ryan said ominously in his 1873 address to the graduating class of the University of Wisconsin Law School:
“[There] is looming up a new and dark power…the enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economical conquests only, but for political power….
“The question will arise and arise in your day, though perhaps not fully in mine, which shall rule—wealth or man; which shall lead—money or intellect; who shall fill public stations—educated and patriotic freemen, or the feudal serfs of corporate capital….”
The Wisconsin legislature had recently put into law severe restrictions on corporate election interference:
Political contributions by corporations. No corporation doing business in this state shall pay or contribute, or offer consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.
Penalty. Any officer, employee, agent or attorney or other representative of any corporation, acting for and in behalf of such corporation, who shall violate this act, shall be punished upon conviction by a fine of not less than one hundred nor more than five thousand dollars, or by imprisonment in the state prison for a period of not less than one nor more than five years … and if a foreign or non-resident corporation its right to do business in this state may be declared forfeited. (emphasis added)
And it wasn’t just Wisconsin: every state had similar laws to limit corporate power, particularly when it came to inserting themselves in politics.
Pennsylvania corporate charters were required to carry revocation clauses starting in 1784; and in 1815 Supreme Court Justice Joseph Story said explicitly that corporations existed only because they were authorized by state legislatures. In his ruling in the Terrett v. Taylor case, he wrote:
“A private corporation created by the legislature may lose its franchises by a misuser or nonuser of them…. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation.”
It was a concern the nation shared. As President Grover Cleveland said in his 1887 annual state of the union address immediately following the Santa Clara decision:
“As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel. Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”
Since the 1890s, however, corporations have repeatedly and successfully sued to have these “unequal” restrictions removed, based on that phony headnote in the Santa Clara case.
As a “person,” corporations can (and do) claim the Fourth Amendment “right of privacy” and prevent government regulators from performing surprise inspections of factories, accounting practices, and workplaces, leading to uncontrolled pollution and hidden accounting crimes.
Before 1886 concealing corporate crimes was also, in most states, explicitly against the law. Ironically, corporations have also successfully claimed that when people come to work on their “corporate private property,” those very human people are agreeing to give up their own constitutional rights to privacy, free speech, and even to the control of their own possessions.
As a “person,” corporations can claim that when a community’s voters pass laws to ban them, those voters are engaging in illegal discrimination and violating the corporation’s “human rights” guaranteed in the Fourteenth Amendment — even if the corporation has been convicted of felonies.
The result has been an Alice In Wonderland situation where a corporation convicted of felonies can and did own television stations (GE, for example, was convicted of multiple felonies but owned many television stations), but when a human being in the Midwest was convicted of a felony the FCC, moved to strip him of his TV station.
The terrible irony is that corporations insist on the protections owed to humans, but refuse to acknowledge the responsibilities and consequences borne by humans.
They don’t have human weaknesses: don’t need fresh water to drink, clean air to breathe, uncontaminated food to eat, and don’t fear imprisonment, cancer, or death.
Granting personhood to corporations is an absolute perversion of the principle cited in the Declaration of Independence, which explicitly states that the government of the United States was created by people and for people, and operates only by consent of the people whom it governs. The Declaration states this in unambiguous terms:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The result of corporate personhood has been the relentless erosion of government’s role as a defender of human rights and of government’s responsibility to respond to the needs of its human citizens.
Instead, we’re now seeing a steady insinuation of corporate representatives and those beholden to corporations into legislatures, the judiciary, and, with corporate CEO’s Trump, Bush, and Cheney, even the highest office in the land.
We’ve reached the point in the United States where corporatism has nearly triumphed over democracy.
If events continue on their current trajectory, the ability of our government to respond to the needs and desires of humans — things like fresh water, clean air, uncontaminated food, independent local media, secure retirement, predictable weather, and accessible medical care — may vanish forever, effectively ending the world’s second experiment with democracy.
We will have gone too far down Mussolini’s road, and most likely will encounter similar consequences, at least over the short term as we saw beginning to emerge during the Trump presidency: a militarized police state, a government unresponsive to its citizens and obsessed with secrecy, a ruling elite drawn from the senior ranks of the nation’s largest corporations, and the threat of war.
Alternatively, if we reverse the 1886 fraud that created corporate personhood, it’s still possible we can return to the democratic republican principles that animated our Founders and brought this nation into being.
Our government — elected by human citizen voters — can shake off the neoliberal experiment of the Reagan Revolution’s past forty years with its exploding corporatism, and throw the corporate agents and buyers-of-influence out of the hallowed halls of Congress.
We can restore our stolen human rights to humans, and keep corporate activity constrained within the boundaries of that which will help and heal and repair our Earth rather than plunder it.
The path to doing this is straightforward. Citizens across the nation are looking into the possibility of passing local laws denying corporate personhood, and increasing numbers of Democratic politicians are looking for ways to correct the Supreme Court’s reporter’s 1886 lie and its spawn, like Buckley, Bellotti, and Citizens United.
Taking another path, some are suggesting that the Fourteenth Amendment should itself be amended to insert the word “natural” before the word “person,” an important legal distinction that will sweep away a century of legalized corporate excesses and reassert the primacy of humans.
Congress could also exercise its Article 3 Section 2 power and tell the Supreme Court that corporations are not persons and that is an “exception” to the Court’s ability to create doctrine without congressional consent.
An expanded Supreme Court could even take up this issue, along with its bizarre twin, the Court-created doctrine that money is the same thing as free speech.
The concern is not corporations per se; the bludgeon of corporate personhood is rarely used by small or medium companies; it’s used almost exclusively by a handful of the nation’s largest, to force their will on governments and communities.
This means a very small number of parties (the biggest corporations) are all that stand in the way of reform, which suggests the corporate personhood doctrine is the weakest link in the chain of corporate power.
And it’s a link that can be broken by alert and activist citizens, thus steering America away from Mussolini’s view of government and back on course toward that of our nation’s Founders. What is required is that we undo that 1886 court reporter’s incorrect headnote, by any of the various means people are beginning to try.
Corporations don't need pure food, clean air, or safe drinking water, but they have the ability to influence our government and elections. To rescue democracy, America must reject the bizarre Supreme Court-created doctrine of "corporate personhood."
Once again in America, we must do what the author of the Declaration of Independence always hoped we would:
“[T]he people, being the only safe depository of power, should exercise in person every function which their qualifications enable them to exercise, consistently with the order and security of society.” (emphasis added)
Donald Trump and the GOP would not be the threat they are to America today were it not for billions in corporate money, particularly corrupt corporate money from industries like fossil fuel, tobacco, and weapons, holding them up.
In a very real way, you could argue that this corrupt act by the Supreme Court has brought America to the brink of dictatorship.
We must take back from corporations the power to govern if we ever hope to have a government that is truly representative of We the People, and save a viable planet for our children and our children’s children.
A man shoots up on the streets of Trenton, N.J. Photo: Bob Hennelly
Shuttered storefronts in Trenton, N.J. Photo: Bob Hennelly