In this episode of Wine, Women, and Revolution Heather interviews UCLA constitutional law professor and author Adam Winkler. They discuss his book “We the Corporations: How American Businesses Won Their Civil Rights”
Adam Winkler became interested in corporate person-hood after the 2010 Supreme Court “Citizens United” decision. This case granted “free speech” to corporations much the same as it applies to people. In particular, Citizens United allowed corporations to spend unlimited money in the political arena. Professor Winkler wondered about the history of corporate person-hood in the US. Specifically, he set out to excavate the history of court cases that led to this decision.
A Battle Centuries In The Making
The Supreme Court first ruled on the rights of corporations all the way back in 1809. To put that in perspective, the court didn’t rule on rights of African Americans until 1857, with the Dread Scott case. It is worth noting the corporation won their rights easily, whereas Dread Scott did not. Adam points out throughout the course of American History, The Supreme Court protected corporate rights much more vigorously than minority rights.
The Bank Of The United States
That groundbreaking first case concerned The Bank Of The United States. In addition to giving us our terrible 2 party system, it also paved the way for corporations to enjoy the rights of people. In this case, the bank won the right to sue in federal court. Previously this right only applied to citizens.
Corporations Were The First Colonizers
When we think of the founding of this country, we think of the pilgrims at Plymouth Rock. In reality, the first people to exploit this country were the colonizers at Jamestown. Jamestown was designed to be a profit making venture by The Virginia Company of London. Long before the story of “religious freedom”, it was already all about the cheddar. Even the iconic event like The Boston Tea Party possessed a corporate underbelly. The British monarchy declared the East India company “too big to fail” and forced American tea sellers out of the loop. History always repeats itself.
14th Amendment, Corporations, and Bold Faced Lies
Adam Winkler moves on to telling us a story, that he refers to as “one of the most unbelievable cases in the history of Constitutional Law” In a flurry of court cases by the Southern Pacific Railroad company, a man named Roscoe Conklin argued that the 14th amendment was designed to guarantee the rights of business corporations. Amazingly, Conklin was one of the drafters of the 14th amendment. He knew this amendment solely pertained to newly freed slaves. As a lawyer for the railroad, he blatantly lied to the Supreme Court.
The Deception Continues
The Court decided in favor of the railroad company, but specifically said they made no statement about the rights of corporations. They never meant to set a precedent. In a baffling twist, the court reporter, who was also a railroad executive, wrote the court did rule on the rights of corporation. In years to come, that case was cited over and over again to guarantee 14th amendment rights to corporations.
Businesses Before Minorities
Professor Winkler points out in the years following the Civil War, of all the 14th amendment cases the court decided, 28 of those cases concerned the rights of African Americans. In contrast, the court decided on 312 cases concerning corporate rights. Corporations won almost all of their cases, while African Americans won almost none of theirs. The 14th amendment transformed from a shield to protect minorities to a sword used to attack corporate regulation.
Adam Winkler talks The Powell Memo
Adam Winkler calls Citizens United an extreme case of judicial activism, but it wasn’t the first. Corporations frequently sue for first amendment rights. In the 70s, The Court ruled in the Bellotti case that corporations could spend money on ballot measure campaigns. That opinion was written by justice Lewis Powell from The Powell Memo fame. His memorandum for the Chamber Of Commerce called for politicization of businesses to fight back against grassroots activism. That Memo became constitutional doctrine in the Bellotti case. That Memo sparked the conservative business backlash that ultimately led to the election of Ronald Reagan.
So, Now We Are Screwed
We have reached a point where corporations have more rights than people. Heather asks Professor Winkler what paths we have to try to put this ridiculous situation right. Sadly, there aren’t a lot of paths available. We could amend the constitution to strip the rights, or the supreme court could revisit the previously granted rights. Both paths are pretty equally unlikely, given that no matter if Democrats or Republicans are in charge generally they lean very pro business. Throughout history, even the more “liberal” leaning justices have upheld corporate rights over and over again. Citizens United allowed unlimited money to flow into politics to assure an ever more pro business court makeup. The Court has far more often used its power to protect the wealthy and powerful and that is unlikely to change. No matter the party, Justices overwhelmingly rule been pro-business.
Have A Nice Muffin
Heather asks Professor Winkler if basically we are all just screwed, and he answers pretty fatalistically. He says “Yeah, So go have a nice muffin, a good cup of coffee, enjoy your life, and recognize you are probably all screwed.” He ends by saying its important to understand how we got here. The system is not blind or just and we need to understand that to even begin changing things. Corporations never gave up and kept fighting for their rights, so we can never give up. We must keep fighting as people to change things.