From: "Charlie Cray" <firstname.lastname@example.org>
Date: Wed, 19 Feb 2003 13:11:24 -0500
I think Sanford is correct that over 100 years of case law since the 1886
Santa Clara decision have enshrined the notion of corporate personhood.
That doesn't make it right, of course. And Thom Hartmann's book (Unequal
Protection) exposes the fallacy of the premise that the Supreme Court
evaluated this issue and made a monumental decision that corporations are
persons. In fact, they did no such thing, though that's been the
assumption since then. Corporations have illegitimately staked a claim to
constitutional rights since then, and many decisions have backed that
illegitimate claim. Hartmann does a good job of explaining the implications.
The challenge comes in developing a strategy to overturn this situation.
This is huge. I don't think telling people that we need a constitutional
amendment (without filling in a lot of blanks) is any more responsible than
Bush telling us that he supports hydrogen-fueled vehicles. I.e. people
want to know what we can and should do (realistically) today. As those who
have worked hardest on this approach understand, we are in the early
stages of what must be viewed as a struggle that in all likelihood will
last for decades. At this stage we are still in the early
education/movement building stage, struggling to reframe the debate in
order that more people understand the importance of challenging the
corporate claim to constitutional rights. And so that more people --
activists, constitutional scholars and other lawyers, labor unions, etc.
begin to develop strategies that follow this approach.
The Porter Township resolution was an excellent example of how this can be
translated into community organizing. There remain questions as to how far
that approach will go. E.g. what happens when there's a court challenge
that shoots it down at the behest of a corporation? Will other communities
with NIMBY/NIABY (not in anyone's backyard) struggles against WalMarts,
sludge dumps, landfills and other undesirable corporate projects view
those resolutions as effective if they've been shot down in the courts?
Maybe, if they feel part of a bigger movement. But if the goal of the next
local community struggle is to win their immediate battle, then it's a
stretch to imagine they will replicate the approach taken in Porter
Township if such a resolution is shot down in the courts and there are
other approaches to the struggle that will stop the problem. I'm not
trying to argue against the approach; it's just that we need to anticipate
these questions in our strategy. Start flanking what happened in
Porter Township with judicial strategies and other movement
Also, community organizing is very important, but not the only means of
building this movement. Another thread in to start from an analysis of
those rights that corporations have staked a claim to and work backwards
to the organizing approach. I.e. challenge corporate claims to specific
rights. E.g. the corporate claim to free speech. This might break the
issue down in a way that others (labor, sweatshop, campaign finance
reform) might find useful. It will probably provide more
tactical/strategic organizing handles than trying to overturn "personhood"
all at once. (Though it seems difficult for these movements to reframe
their work around this approach to begin with).
The Nike case is a good example of how to open up a new chink in the
corporate armature. Jeff Milchen and colleagues at Reclaim Democracy have
a good web page about the Kasky v. Nike case. (see www.reclaimdemocracy.org).
As Sanford I think is suggesting, this is a good opportunity to broaden our
efforts to educate people about the illegitimate rights of corporations. But
it's unlikely that the Court will address whether or not they have those
rights any more than they are likely to delineate the boundary between
commercial and political free speech, and whether one or the
other applies in this situation. That said, really what's discussed
inside the Supreme Court doesn't matter all that much for our purposes
(drawing attention to the question of why corporations should have any
rights at all I think is an excellent goal, and the subplots of this case
-- like the pressure on the ACLU -- have been pretty effective in
broadening the debate). Clearly it is an opportunity to push these ideas
out into the mainstream. A front page article in the NYTimes about the
case has proven that.
From: Sanford Lewis [mailto:email@example.com]
Sent: Wednesday, February 19, 2003 9:32 AM
To: firstname.lastname@example.org; Gary Liss
Subject: Re: [empowering_democracy] Fwd: [greenyes] Corporate
Unfortunately, I believe later Supreme Court cases codified the fiction from
the original headnote. So it is a harder fight - we basically need a
sympathetic Supreme Court... in our lifetimes?
An immediate, probably smaller, test of this issue will come in Nike v.
Kasky, which will determine the scope of Nike's so called first amendment
rights. While some may argue that Nike has NO first amendment right since
its not a person, the inside argument is likely to be about whether or not
those socalled rights include the right to lie to the public saying that it
does not make sneakers in sweatshops....
Sanford Lewis, Attorney
Strategic Counsel on
PO Box 79225
Waverly, MA 02479
419 735-8935 fax