
           Tuesday 22 March 2011
      by: Thom Hartmann, Berrett-Kohler Publishers | Book Excerpt
                         
   (Image: Lance Page / t r u t h o u t)    
           The legal rights of the...defendant, Loan  Company, although it be a corporation, soulless and speechless, rise as  high in the scales of law and justice as those of the most obscure and  poverty-stricken subject of the state.
 - Excerpt from the judge’s ruling in Brannan v. Schartzer, 25 Ohio Dec. 491 (1915)
  While corporations can live forever, exist in several  different places at the same time, change their identities at will, and  even chop off parts of themselves or sprout new parts, the chief  justice of the U.S. Supreme Court, according to its reporter, had said  that they are “persons” under the Constitution, with constitutional  rights and protections as accorded to human beings. Once given this key,  corporations began to assert the powers that came with their newfound  rights.
  - First Amendment. Claiming the First  Amendment right of all “persons” to free speech, corporate lawsuits  against the government successfully struck down laws that prevented  corporations from lobbying or giving money to politicians and political  candidates.1
 - Fourth Amendment. Earlier laws had  said that a corporation had to open all its records and facilities to  our governments as a condition of being chartered. But now, claiming the  Fourth Amendment right of privacy, corporate lawsuits successfully  struck down such laws. In later years they also sued to block  Occupational Safety and Health Administration (OSHA) laws allowing for  surprise safety inspections of the workplace and stopped Environmental  Protection Agency (EPA) inspections of chemical factories.2
 - Fourteenth Amendment: Claiming  Fourteenth Amendment protection against discrimination (granting persons  equal protection), the J. C. Penney chain store successfully sued the  state of Florida, ending a law designed to help small, local business by  charging chain stores a higher business license fee than that for  locally owned stores.3
 
 
  This chapter is part of an exclusive Truthout series from Thom Hartmann,  America's No. 1 progressive radio host and bestselling author of 21  books. We are publishing weekly installments of the bestseller, "Unequal Protection: How Corporations Became 'People' - and How You Can Fight Back." Please join us as Hartmann explores the evolution of corporate personhood, gaining insight into the nature of democracy. To read more chapters, click here.
   Women Ask, “Can I Be a ‘Person,’ Too?”
 Interestingly, during the era of the Santa Clara decision  granting corporations the full protections of persons under the  Constitution, two other groups also brought cases to the Supreme Court,  asking for similar protections. The first group was women. This was a  movement with a fascinating history, its roots in the American  Revolution itself.
 In March 1776 thirty-two-year-old Abigail Adams sat  at her writing table in her home in Braintree, Massachusetts, a small  town a few hours’ ride south of Boston. The war between the American  colonists and their opponents—the governors and the soldiers of the East  India Company and its British protectors—had been going on for about a  year. A small group of the colonists gathered in Philadelphia to edit  Thomas Jefferson’s Declaration of Independence for the new nation they  were certain was about to be born, and Abigail’s husband, John Adams,  was among the men editing that document.
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Abigail had a specific concern. With pen in hand, she  carefully considered her words. Assuring her husband of her love and  concern for his well-being, she then shifted to the topic of the  documents being drafted, asking John to be sure to “remember the Ladies,  and be more generous and favourable to them than [were] your  ancestors.”4
 Abigail knew that the men drafting the Declaration  and other documents leading to a new republic would explicitly define  and extol the rights of men, but not of women, and she and several other  well-bred women were lobbying for the Constitution to refer instead to  persons, people, humans, or “men and women.” Her words are  well-preserved, and her husband later became president of the United  States, so her story is better known than those of most of her peers.
 By late April, Abigail had received a response from  John, but it wasn’t what she was hoping for. “Depend upon it,” the  future president wrote to his wife, “[that] we know better than to  repeal our Masculine systems.”
 Furious, Abigail wrote back to her husband, saying,  “If perticular [sic] care and attention is not paid to the Ladies, we  are determined to foment a Rebellion...”
 All of Abigail’s efforts were ultimately for nothing.  Richard Henry Lee of Virginia introduced on June 7, 1776, a resolution  that the colonies be free and independent states governed solely by free  men, based on a document written by Thomas Jefferson and  edited by John Adams and Benjamin Franklin. Adams played a strong role  in the heated debate over the following month, which concluded with a  vote to adopt the gender-specific language of Lee’s resolution on July  2, 1776. Congress formalized it two days later as the Declaration of  Independence.
 Adams, Jefferson, Hamilton, and the other men of the  assembly explicitly demanded rights for male citizens—and not for female  citizens—when they crafted the Declaration. “Men” was not a generic  reference to humans; the authors meant humans of the male gender. They  wrote: “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 men had won. Among the earliest laws of the Colonies were several legislating that men had power over women:5
  - A married woman was not allowed to make out a will  because she was not allowed to own land or legally control anything else  worthy of willing to another person.
 - Any property a woman brought into the marriage  became her husband’s at the moment of marriage, and would revert to her  only if he died and she did not remarry. But even then, she would get  only one-third of her husband’s property, and what third that was and  how she could use it were determined by a male, court-appointed  executor, who would supervise for the rest of her life (or until she  remarried) how she used the third of her husband’s estate she  “inherited.”
 - When a widow died, the executor would either take  the property for himself or decide to whom it would pass; the woman had  no say in the matter because she had no right to sign a will. Women  could not sue in a court of law except under the same weak procedures  allowed for the mentally ill and children, supervised by men.
 
 
  - If the man of a family household died, the executor  would decide who would raise the wife’s children and in what religion.  She had no right to make those decisions and no say in such matters. If  the woman was poor, it was a virtual certainty that her children would  be taken from her.
 - It was impossible in the new United States of  America for a married woman to have legal responsibility for her  children, control of her own property, own slaves, buy or sell land, or  even obtain an ordinary license.
 
 
 Women Work for, Then Against, the Fourteenth Amendment
 After the American Revolution, educated women picked  up Abigail Adams’s chant and began to quietly foment her “rebellion.”  They wrote poems and seemingly innocuous letters to the editors of  newspapers, speaking indirectly about their demands for equal rights.  Word spread. By the early 1800s, women’s voices were getting louder, and  many were demanding an amendment to the Constitution to give equal  rights to women or prohibit discrimination against women.
 But women didn’t gain any legislative successes until  1868, and that turned out to be a Pyrrhic victory. It was the  Fourteenth Amendment, passed after the Civil War, which guaranteed due  process of law to all “persons.” Oddly, when it was being drafted in  1866, suffragettes Susan B. Anthony and Elizabeth Cady Stanton had  argued strongly against it because it was the first time the word male was used in the Constitution or any constitutional amendments.
 The Fourteenth Amendment has two provisions, one  guaranteeing due process of law to all persons and the other defining  how lines would be drawn to decide how representation was to be  apportioned in the House of Representatives. Section 2 includes the  phrase “the proportion which the number of such male citizens shall bear  to the whole number of male citizens.”
 Stanton wrote in 1866, “If the word ‘male’ be inserted [in this amendment] it will take a century to get it out again.”6
 Despite Stanton’s objections to its sexually  discriminatory language, the Fourteenth Amendment was passed and  ratified by enough states to become law. And Stanton was off in her  prediction by only two years: the Equal Pay Act of 1963 and the Civil  Rights Act of 1964 required equal pay for women and men and prohibited  discrimination against women by any company with more than twenty-four  employees.
 Women Test the Fourteenth Amendment
 In an attempt to test the Fourteenth Amendment, Susan  B. Anthony went to her local polling station and cast a vote on  November 1, 1872. Justifying her vote on the grounds of the Fourteenth  Amendment, on November 12 Anthony wrote, “All persons are citizens—and  no state shall deny or abridge the citizen rights...”
 Six days later, however, she was arrested for voting  illegally. The judge, noting that she was female, refused to allow her  to testify, dismissed the jury, and found her guilty. Lacking the  resources available to huge corporations, she was unable to repeatedly  carry her cause to the Supreme Court as the railroads customarily did,  and that judge’s decision stood.
 One year later, in the 1873 Bradwell v. Illinois decision,  the Supreme Court ruled that women were not entitled to the full  protection of persons under the Fourteenth Amendment. Justice Joseph P.  Bradley wrote the Court’s concurring opinion, which minced no words:  “The family institution is repugnant to the idea of a woman adopting a  distinct and independent career from that of her husband. So firmly  fixed was this sentiment in the founders of the common law that it  became a maxim of that system of jurisprudence that a woman had no legal  existence separate from her husband, who was regarded as her head and  representative in the social state...”
 Corporations had full legal existence and the  constitutional rights of persons, but women could derive these rights  only through their husbands. They didn’t even exist as legal entities  separate from their husbands. And the Supreme Court said that the  Fourteenth Amendment didn’t apply to them, even though the amendment  explicitly said “persons.”
 Women didn’t get the vote until 1920, and the Equal  Rights Amendment that says, simply and entirely, “Equality of rights  under the law shall not be denied or abridged by the United States or by  any state on account of sex,” has been introduced into Congress every  year since 1923 but has never passed, blocked in every case by male  legislators.
 Freed Slaves Ask, “Can I Be a ‘Person,’ Too?”
 The second group to petition the Supreme Court to be  recognized as persons under the Fourteenth Amendment were the people for  whom it was passed: freed slaves and their descendants. But ten years  after giving corporations full rights of personhood, the Supreme Court  ruled in Plessy v. Ferguson that any person more than “1⁄8th Negro” was not legally entitled to full interactions with white “persons.”
 Justice Henry B. Brown delivered the near-unanimous  (one dissenter) opinion of the Court, which established nearly a century  of Jim Crow laws, saying, “Gauged by this standard we cannot say that a  law which authorizes or even requires the separation of the two races  in public conveyances is unreasonable, or more obnoxious to the  Fourteenth Amendment than the acts of Congress requiring separate  schools for colored children in the District of Columbia, the  constitutionality of which does not seem to have been questioned, or the  corresponding acts of state legislatures.”7
 Court reporter J. C. Bancroft Davis, in the headnote he wrote as commentary to the Plessy v. Ferguson  case, said that the case had come about when Plessy, “being a passenger  between two stations within the State of Louisiana, was assigned by the  officers of the [railroad] company to the coach used for the race to  which he belonged, but he insisted upon going into a coach used by the  race to which he did not belong.”
 Davis then quotes the Fourteenth Amendment and says  afterward, “The object of the amendment was undoubtedly to enforce the  absolute equality of the two races before the law, but in the nature of  things it could not have been intended to abolish distinctions based  upon color, or to enforce social, as distinguished from political  equality, or a commingling of the two races upon terms unsatisfactory to  either.”
 This institutionalization of segregation by the 1896  Plessy case prompted U.S. Supreme Court Justice Hugo Black to note in  1938, “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.”8
 Notes: 
 1. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
 2. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).
 3. Liggett v. Lee, 288 U.S. 517 (1933).
 4. The correspondence between Abigail Adams and John Adams is available at http:// www.masshist.org/digitaladams/aea/letter.
 5. For more on this subject see http://lcweb2.loc.gov/ammem/awhhtml/awlaw3/prop erty_law.html.
 6. Quoted in Sharada Rath, Women in  Public Administration of the American States: A Study of their  Administrative Values (New Delhi: M.D. Publications, 1998), 41.
 7. Plessy v. Ferguson, 163 U.S. 537 (1896).
 8. Connecticut General Co. v. Johnson, 303 U.S. 77 (1938).
 Thom Hartmann is America's No. 1 progressive  radio host, as well as the New York Times bestselling, four-time Project  Censored Award-winning author of 21 books in print, in 17 languages on 5  continents. 
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