Rescue Our Democratic Society: Constitutionally Render Corporations Unequal to Humans
By Ralph Nader
February 10, 2023
No other institutions consistently Rule over as Much in the World as the Giant Global Corporations – not governments, not armies, not religions and certainly not trade unions. These fictional corporate entities have largely achieved transcendent imperial status, as they amass coordinated control over capital, labor, technology and governments because they have secured the rights bestowed upon human beings. In a confrontation or a conflict or even a contract, it is no contest: mere people don’t have a chance.
As Supreme Court Justice Louis D. Brandeis warned in 1933, we have created a “Frankenstein monster” in our midst, whose unifying lust for power and control on behalf of their profits know few limits.
In last week’s column, I described a dozen sectors in which the privileged legal advantages of corporate supremacy over real people make the former more powerful every day (https://nader.org/2023/02/03/the-progenitor-of-inequalities-corporate-personhood-vs-human-beings/). And every day people start with a massive disadvantage whether in the marketplace, the workplace, the environment, the taxation realm, the electoral and governmental arena, and access to justice. Yes, in cultural appropriations as well.
For about 150 years the courts have arbitrarily accorded corporate personhood the same rights as real humans even though the words “corporation” or “company” never appear in our Constitution. This blatant fictional identity has upset some pretty serious jurists. In his dissent against the justices who, breaking precedent, decided in 2010 that corporations could give unlimited money to oppose or support candidates for public office, Justice John Paul Stevens wrote: “Corporations have no conscience, no beliefs, no feelings, no thoughts, no desires … they are not themselves members of ‘We the People’ by whom and for whom the Constitution was established.” He called the deciding Justices’ claim that “money is speech” for purposes of the First Amendment, “…a conceit that corporations must be treated identically to natural persons…” in the political sphere.
Ronald Dworkin, a well-regarded legal philosopher, declared: “The argument – that corporations must be treated like real people under the First Amendment – is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.”
Long ago Thomas Jefferson and Thomas Paine warned about early commercial giants in their day. In 1910 former President Theodore Roosevelt told a gathering of Union Army Veterans: “The citizens of the United States must effectively control the mighty commercial forces which they have themselves called into being.” (Through state charters that bring corporations into existence.)
None of these and other similar commentators wished to deny full constitutional rights to people working in these legal fantasies called corporations. They just didn’t want corporations to be able to utilize corporate personhood per se as a juggernaut for their pursuits.
What is happening with each passing year, with fearsome perils, is that large corporations are attaching their special privileges and immunities to technologies. These privileges and immunities include artificial intelligence (robots), biotechnology (changing the nature of nature) and nanotechnology (used in autonomous weapons, etc.) and, of course, nuclear power and weapons of mass destruction. Corporate lawyers will soon be advocating those corporate-owned, complex, self-activating robots have the same legal fictional rights as their owner, lessor or breeder.
As law professor George J. Annas observed: The artificial person fantasy continues to grow, as does the destructiveness of major corporations. He heralded “climate change” as one devastating example.
After much documentation of large corporate predations savagely out of control by mere nation-states, outwitting most civic and political challenges to their sprawling hegemony, it is time to move from skirmishes to fundamental constitutional subordinations of the corporate entity to the supremacy of natural persons. This will require two streams of parallel, deliberative action. First, citizen groups who know better must elevate their experience by taking on big business and moving from symptoms to root causes that enable these “Frankenstein monsters” uber alles. Civic groups need to educate people about the fact that corporate birth certificates, which allow companies to exist, are created by governments and can be conditioned or abolished by that same authority.
People understand the cruelty of uneven playing fields at the starting gates. Continual public education is essential for transformative displacement of the corporate entities to a secondary status to prevent or contain commercially-driven abuses of power.
The second stream must come from the recognition that the necessary constitutional amendment placing the corporate entity in a distinctly unequal status vis-à-vis human beings will require rigorous research and thought. Establishing inferior legal status for corporations within our political economy is essential. New corporate structures for non-commercial activities will need to be explored, and other forms of collective organizations will need to be developed or recalled from history. Many academic disciplines and their practitioners in real life need to be enlisted.
Make no mistake, the leading reversal of the contrivances of corporate attorneys, must come from lawyers and scholars in the public interest who know how corporate attorneys have constructed the corporate state. It is time to rein in unaccountable, cost shifting, autocratic, hierarchical “Frankenstein monsters” that create their own out of control engines.
Drafting the enforceable statutes to implement the basic constitutional amendment is a task of unravelling and creating never before attempted. Ever more widely perceived runaway corporate controls of our daily lives, (already decried by over 70% of people in polls) with their associated manifestations of corporate coercion, corporate violence and corporate takeover of public institutions, will generate this last clear chance. Act before the concentrated automation of these global forces, bereft of actionable legal and ethical frameworks, turn omnicidal.