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Constitutional amendment needed to pare back corporations' constitutional rights

BY DI EDITORIAL BOARD | NOVEMBER 17, 2010 7:20 AM

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Some corporations are more powerful than foreign countries, controlling the livelihoods of millions of employees and billions of dollars. Their decisions affect the health and basic subsistence of workers and nonworkers alike. And in the United States, they have amassed an impressive array of constitutional rights previously reserved to individual citizens.

Over the last 100-plus years, American judges have overturned safety and health regulations, environmental protections, and restrictions on corporate political speech, invoking the so-called corporate-personhood precedent. January's Citizens United v. Federal Elections Commission Supreme Court decision — in which the court ruled corporations had a virtually unfettered right to influence elections — was merely the odious trend's latest manifestation.

In response, the group Move to Amend is pushing for a constitutional amendment "to strip from corporations the constitutional rights that were intended for human persons," according to its website. David Cobb, a spokesman for the group and former Green Party presidential candidate, will be in town today to discuss corporate personhood and the Citizens United ruling. (The event is at 7 p.m. in the Iowa City Public Library.) We fully support such an amendment and encourage students and community members to attend this important talk.

Corporations are, inherently, a creation of the law. They have the power to sue — and be sued — and enter into contracts, among other things. Legal thinkers, lawyers, and justices have long sparred over the contours of their constitutional rights, however.

In an otherwise innocuous decision, the Supreme Court ruled in Santa Clara County v. Southern Pacific Railroad Co. that corporations were "persons" for the purposes of the 14th Amendment. Subsequent cases further entrenched this precedent — but not for the First Amendment. In a 1978 case, the Supreme Court stated explicitly for the first time that corporations can be speakers with First Amendment rights, according to a soon-to-be published paper by UI law Professor Randall Bezanson. Citizens United further expanded corporate political-speech rights and opened the door for similar decisions.

Supporters of the corporate-personhood doctrine argue that corporations are an amalgamation of individuals whose rights are guaranteed under the Constitution. Thus, the constitutional rights of corporations — including free speech — should not be abridged.

Cobb correctly assailed this line of argument.

"The Founders made clear that constitutional rights were individual rights, that there was no way to collectivize political or civil liberties or political rights," he said in an interview. "It confuses metaphor with reality to say that simply because people pool their money, they have somehow created an entity that has a heart, and a mind, and a soul."

One of the great ironies of corporate personhood is the undemocratic structure of the vast majority of these companies. The same Constitution that ostensibly accords them rights is predicated on the principles of democratic decision-making, pluralism, and checks and balances. The rigid hierarchies that characterize corporate life, however, are antithetical these democratic ideals.

And for those concerned with the power of ordinary citizens, the application of the corporate personhood precedent has led to a distressing erosion of popular sovereignty. As eminent political-scientist Robert Dahl once wrote, "On the landscape of a democratic country, great corporations loom like mountain principalities ruled by princes whose decisions lie beyond reach of the democratic process."

Many would disregard such a statement as hyperbolic, a leftist anti-capitalist diatribe. But as corporations accrue greater constitutional protection and isolate themselves from democratic accountability, Dahl's observation has increasing relevance.

Ordinary citizens and their elected officials are seeing their democratic power curtailed and corporations' constitutional rights expanded. Amending the Constitution to stanch this insidious flow is long overdue.


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