“Unequal Protection”: The Corporate Conquest of America

– Excerpt from the judge’s ruling in Brannan v. Schartzer, 25 Ohio Dec. 491 (1915)

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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

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…”

(Image: Lance Page / t r u t h o u t [3])

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].

5. For more on this subject see http://lcweb2.loc.gov/ammem/awhhtml/awlaw3/prop erty_law.html [6].

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).

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Thom Hartmann [9]