Wednesday

Going through some papers I haven't looked at since right after college... How's this for an attention getting, point-of-view laden opening sentence? (I didn't write it and I don't know who did.) "The colonial war for independence from England was fomented primarily by a small number of white, propertied men who wanted the freedom to exploit the Americas on their own and had grown tired of sharing their burgeoning wealth with the English ruling class." The essay goes on to discuss the Fourteenth Amendment which was ratified 3 years after the end of the Civil War ostensibly to guarantee the rights of the newly freed slaves. But, check out this quote from Hugo Black in 1938 - he was a Supreme Court Justice at the time: "Of the cases in this court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations." Did you catch that? More than 50% of the cases that invoked the "guarantee that freed slaves get an equal chance at human rights in the USA" Amendment in the first 50 years after it came into existence used this Amendment to argue for the rights of CORPORATIONS and only .05% of cases that referenced this amendment in their case before the US Supreme Court used it to argue for the rights of African Americans. How did I completely forget about this historical irony? The background: 18 years after the Fourteenth Amendment was ratified - in 1886 - 21 years after the end of the Civil War this case went down called Santa Clara v. Southern Pacific Railroad. I believe the details of the case are pretty mundane, taxes, railroad property rights, etc. What's relevant is that in this case in 1886 the Railroad, for the first time in US history, received the guarantees and protections of the Fourteenth Amendment. Remember, the supposed point of the Fourteenth Amendment was to guarantee that black men had the right to claim some form of functional autonomy as newly free men since those propertied white men referenced in that first attention-grabbing quote opted - that is chose after debate - to omit basic human rights for non-whites and non-males from the Constitution. And, here's something else that was omitted - as in the word is not even used - from the US Constitution: CORPORATIONS. This was also a conscious choice as the Revolutionary War was not just about rejecting the monarchy it was about rejecting English trading companies and British business interests. So back in 1776 everybody was into controlling corporate power by limiting new corporate charters and by revoking the charters of companies who did bad. This helped new exploring and expanding American business interests at that time. But times changed. The new American business interests became the powers that be and as such they increasingly used the corporate form to protect personal fortunes. By this 1886 case corporations in America were as powerful as the British Empire corporations had been in their day (thanks in large part to war profiteering during and directly after the Civil War). Now, what amazes me about this chain of events is - remember the word corporation is not even mentioned in the Constitution - what amazes me is the Supreme Court sneakily introduced major legal and social change in this lil Railroad ruling and... ... no one debated it... ... no one voted about it... ... it all happened quietly in the Supreme Courtroom... ... under the guise of a boring corporate law case... Imagine this: you're the lawyer going to argue the Plaintiff's side of this Santa Clara v. Southern Pacific Railroad case. You've got copies of correspondence, receipts, tax statements, a map showing the county line, normal lawyer stuff. But, the official case record shows that before anyone even began to argue the facts of this business law case, Supreme Court Justice Morrison Remick Waite said the following: "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." First of all, who really cares what the court wishes? Wishes? That's very dismissive language. You're at work dude, do what you gotta do. And one would think someone smart and legal-y enough to wind up on the top of the heap sitting on the Supreme Court would be used to hearing topics argued to death. That is so not what this is about. That statement destroyed the OPPORTUNITY to debate this concept before the highest court in the land. Instead the Supreme Court enacted this major sea-change in the history of American business and economics without openly airing the pros and cons. There was no appropriate adversarial legal process at the Supreme Court level. There was no debate. Very sneaky. Ever after: Corporations are people too. Instead of having corporate rights, corporations now also have the same rights as you and me - except in reality they have more. This case explains how in today's America corporations exercise these human rights when it suits their interests (many while denying basic human rights to workers in foreign countries and perhaps right here in the US), enjoy corporate benefits and wield economic power and influence that far exceeds the scope of all but the richest of individuals.

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