Tuesday, September 1, 2015

Corporate power is bigger than the 14th Amendment

The always excellent Mark Ames just posted a brief article pointing out an embarrassing complication for the right: the 14th Amendment they oppose because of its guarantee of birthright citizenship is the same 14th Amendment typically invoked in legal defenses of corporate personhood.

This is a pretty solid logical critique of right-wing jurisprudence. Even more damning, it exposes the sick cognitive dissonance the right has to lean on when it wants to empower corporations while attacking real people. But as always, it's worth clarifying that jurisprudence is garbage and no real basis for corporate power.

Ames touches on this when he notes corporate personhood's ridiculous chain of precedent, leading back to Chief Justice Waite's infamous "obviously corporations are people" headnote. That alone should make it perfectly obvious that corporate power is about our oligarchic overlords finding pretexts to do whatever they want, no matter how flimsy. It's not as if we're just dealing with unfortunate aberrations from the rationality of sound jurisprudence, errors that we could patch, and by patching them end the scourge of corporate power.

In fact, there's plenty of reasons to suspect that both Waite's headnote and the 14th Amendment are entirely incidental to the persistence of corporate power, and that it would certainly find expression elsewhere if not in those particular clauses. As early as 1799, for example - nearly a century before the Waite ruling - we can already detect odd language games in SCOTUS opinions setting the stage for corporate personhood.

There, in the court's first ruling of significance bearing upon incorporation - Turner v. Bank of North America - Chief Justice Ellsworth makes an unusual conceptual shift. First he refers to the corporation named "Biddle & Co." in the collective plural, wondering if "the promisees...are citizens...or aliens"; here, the real, individual humans constituting the corporation are clearly in view. But then, without explanation, he concludes that "the promissee" was not averred to be either "a citizen or an alien". Now the real people are no longer in view, and Biddle & Co. is to be understood as a single entity - not a person, perhaps, but something other than a plural collection of real people.

The early history of SCOTUS jurisprudence is full of moves like this, always refining the corporation into a more human-like entity, and always, it should be noted, to the corporation's advantage. The very word "corporation" is etymologically related to the body, but by 1804 that metaphor has become explicit. By 1809 the corporation is said to have "corporeal qualities"; by 1839 a corporation can be contemplated independently of "the act to which it owes its existence," has a location in geometric space ("Corporations are localised and stationary"), and "are considered by the legislature as citizens"; that same year it is said to have "residence, habitancy and individuality", as well as "ligaments," a skeletal "frame," and a "heart"; and by 1873 corporations are at least "artificial persons".

So by the time Santa Clara came around it was almost superfluous to call corporations "persons" within the meaning of the 14th Amendment. They had already won most of the conceptual advantages of personhood in previous cases, and it seems clear that they would have continued to game the law to win whatever other power and privileges they wanted, with or without Waite's headnote.

Jurisprudence doesn't create corporate power - corporate power creates jurisprudence. And jurisprudence, I repeat, is garbage.