Unequal Protection: Introduction
From the introduction to "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights".
It’s really a wonder that I haven’t dropped all my ideals, because they seem so absurd and impossible to carry out. Yet I keep them, because in spite of everything I still believe people are really good at heart.
- Anne Frank, from her diary, July 15, 1944
This book is about the difference between humans and the corporations we humans have created. The story goes back to the birth of the United States, even the birth of the Revolution. It continues through the writing of the Constitution and Bill of Rights in the 1780s, and reaches its first climactic moment 100 years later, after the Civil War. The changes that ensued from that moment continue into the 21st century, where the results continue to unfold. And very few citizens of the world are unaffected.
In another sense, this book is about values and beliefs: how our values are reflected in the society we create, and how a society itself can work, or not work, to reflect those values.
A culture is a collection of shared beliefs about how things are. These beliefs are associated with myths and histories that form a self-reinforcing loop, and the collection of these beliefs and histories form the stories that define a culture. Usually unnoticed, like the air we breathe, these stories are rarely questioned. Yet their impact can be enormous.
For example, for six to seven thousand years, since the earliest founding of what we call modern culture, there were the stories that “it’s okay to own slaves, particularly if they are of a different race or tribe,” and “women should be the property of, and subservient to, men.”
But as time goes on, circumstances and cultures change: beliefs are questioned and aren’t useful begin to fall away. This book will raise questions about some of our shared beliefs, asking, as many cultures have asked throughout history: “Do we want to keep this belief, or change to something that works better for us?”
Here we find the nub of this book, continuing a theme in my earlier writings. In The Last Hours of Ancient Sunlight, I identified those stories (among others), and suggested that true cultural change comes about when we first wake up to our own self-defeating beliefs…and then go about changing them. I also pointed out that the story that “we are separate and different from the natural world” is a toxic one, brought to us by Gilgamesh, then Aristotle, then Descartes, and it no longer serves us well.
In The Prophet’s Way, I detailed how the story that “we are separate from divinity or consciousness” can perpetuate a helplessness and a form of spiritual slavery that’s not useful for many individual humans or the planet as a whole. Mystics tell us a different story through the ages - the possibility of being personally connected to divinity. I suggested that, for many people, the mystic’s story could be far more empowering and personally useful.
And in my books on Attention Deficit Disorder (ADD/ADHD), I suggested that neurologically different children are actually a useful asset to our culture (using Edison, Franklin, and Churchill as classic examples), and that we do ourselves a disservice - and we wound our children in the process - by telling them they have a “brain disorder” and tossing them into the educational equivalent of the trash basket. (And the most recent studies sponsored by the National Institutes of Mental Health are explicitly backing up my position.[i])
In Unequal Protections I’m visiting with you the stories of democracy and corporate personhood - ones whose histories I only learned in detail while researching this book. (It’s amazing what we don’t learn in school!) Corporate personhood is the story that a group of people can get together and organize a legal fiction (that’s the actual legal term for it) called a corporation - and that agreement could then have the rights and powers given living, breathing humans by modern democratic governments. Democracy is the story of government of, by, and for the people; something, it turns out, that is very difficult to have function well in the same realm as corporate personhood.
Unlike the cultural stories I’ve written about earlier, this last story is more recent. Corporate personhood tracks back in small form to Roman times when groups of people authorized by the Caesars’ organized to engage in trade. It took a leap around the year 1500 with the development of the first Dutch and then other European trading corporations, and then underwent a series of transformations in the United States of America in the 19th Century whose implications were every bit as world-changing as the institutionalization of slavery and the oppression of women in the holy books had been thousands of years earlier.
And, in a similar fashion to the Biblical endorsement of slavery and oppression of women, this story of corporate personhood - which only came fully alive in the 1800s - was highly contagious: it has spread across most of the world in just the past half-century. It has - literally - caused some sovereign nations to rewrite their constitutions, and led others to sign treaties overriding previous constitution protections of their human citizens.
Imagine. In today’s America and most other democracies, when a new human is born, she’s given a social security number (or its equivalent) and instantly, from the moment of birth, protected by the full weight and power of the U.S. Constitution and the Bill of Rights (or their equivalent). Those rights, which have been fought for and paid for with the blood of our young men and women in uniform, fall fully upon her at the moment of birth.
This is the way we designed it; it’s how we all agreed it should be. Humans get human rights. They’re protected. We are, after all, fragile living things that can be suppressed and abused by the powerful, if not protected. And in American democracy, like most modern democracies, our system is set up so that it takes a lot of work to change the Constitution, making it very difficult to deny its protections to the humans it first protected against King George II and against numerous threats - internal and external - since then.
Similarly, when papers called articles of incorporation are submitted to governments in America (and most other nations of the world), another type of new “person” is brought forth into the nation (and most countries of the world). Just like a human, that new person gets a government assigned number (instead of a social security number, in the US it’s called a Federal Employer ID Number or EIN).
Under our current agreements, the new corporate person is instantly endowed with many of the rights and protections of personhood. It’s neither male nor female, doesn’t breathe or eat, can’t be enslaved, can’t give birth, can live forever, doesn’t fear prison, and can’t be executed if found guilty of misdoings. It can cut off parts of itself and turn them into new “persons,” and can change its identity in a day, and can have simultaneous residence in many different nations. It is not a human but a creation of humans. Nonetheless, the new corporation gets many of the Constitutional protections America’s founders gave humans in the Bill of Rights to protect them against governments or other potential oppressors:
- Free speech, including freedom to influence legislation
- Protection from searches, as if their belongings were intensely personal
- Fifth Amendment protections against double jeopardy and self-incrimination, even when a clear crime has been committed;
- The shield of the nation’s due process and anti-discrimination laws
- The benefit of the Constitutional Amendments that freed the slaves and gave them equal protection under the law.
Even more, although they now have many of the same “rights” as you and I - and a few more - they don’t have the same fragilities or responsibilities, either under the law or under the realities of biology.
What most people don’t realize is that this is a fairly recent agreement, a new cultural story, and it hasn't always been this way:
- Traditional English, Dutch, French, and Spanish law didn’t say companies are people
- The U.S. Constitution wasn’t written with that idea; corporations aren’t even mentioned.
- For America’s first century, courts all the way up to the Supreme Court repeatedly said “No, corporations do not have the same rights as humans.”
It’s only since 1886 that the Bill of Rights and the Equal Protection Amendment have been explicitly applied to corporations.
Even more, corporate personhood was never formally enacted by any branch of the US government:
- It was never voted by the public
- It was never enacted by law
- It was never even stated by a decision of the Supreme Court
This last point will raise some eyebrows, because for a hundred years people have believed that the 1886 case Santa Clara County v. Southern Pacific Railroad did in fact include the statement “Corporations are persons.” But this book will show that this was never stated by the Court: it was added by the reporter who wrote the introduction to the decision, called “headnotes.” And as any law student knows, headnotes have no legal standing.
This book is about how that happened and what it’s meant as events have unfolded. And, like most things that are bent from their original intention, there have been many far-reaching consequences that were never intended. Constitutional mechanisms that were designed to protect humans got turned inside out, so today they do a much better job of protecting corporations, even when the result is harm to humans and other forms of life.
The real issue, rarely discussed but always present, is whether corporations truly are persons in a democracy. Should they stand shoulder to shoulder with you and me in the arena of rights, responsibility, and the unique powers and equal protections conferred upon humans by the founders and framers of the United States Constitution and other democracies around the world that have used the USA as a model? And is it possible to have a viable and thriving democracy if we keep the story of corporate personhood, or have we already lost much of our democracy as a result of it?
In researching this book I was amazed to learn that America’s founders and early Presidents specifically warned that the safety of the new republic depended on keeping corporations on a tight leash - not abolishing them, but keeping them in check. When I showed early drafts of this book to different people, most of them were surprised to see how prophetic those early presidential warnings had been.
The essence of this book is the history of the corporation in America, its conflicts with democracy, and how corporate values and powers have come to dominate our world, for better or worse. Along the way over the past two centuries, those playing the corporate game at the very highest levels seem to have won a victory for themselves - a victory that is turning bitter in the mouths of many of the six billion humans on planet Earth. It’s even turning bitter, in unexpected ways, for those who won it, as they find their own lives and families touched by an increasingly toxic environment, fragile and top-heavy economy, and hollow culture - all traceable back to the frenetic systems of big business that resulted from the doctrine that corporations are persons.
Corporations do much good in the world, and in my lifetime I’ve started more than a dozen corporations, both for-profit and non-profit. So it’s important to say right up front that in this book I’m not advocating dismantling the modern business corporation. It’s a societal and business organizing system that has, in many ways, served us well, and has the potential to do much good in the future, along with other business systems such as guilds and partnerships.
What I am suggesting, however, is that we should put corporations into their rightful context and place, as they had largely been until 1886. They are not human, even though they are owned and managed by humans. They are an agreement, not a living being. Corporations are just one of many methods humans can use to exchange goods, earn wealth, and create innovation; it’s simply not appropriate that this single form should be granted “personhood” at a similar level to humans under the United States Constitution or that of any other nation that aspires to democracy.
It’s my contention that corporations are not legally the same as natural persons, and that the 1886 Supreme Court reporter’s comment in the Santa Clara v. Southern Pacific Railroad case was both in error and revealed a weakness in the 14th Amendment that needs to be fixed by democratic citizen involvement today, if that is still possible.
As always, it’s up to us to change the beliefs that no longer serve us. Indeed, in California and Pennsylvania, citizens have recently stood up and, through their local governments, begun to pass ordinances, laws and resolutions that deny corporations the status of personhood. They don’t ban corporations; they just say “Corporations are not persons.”
Why would this be such an issue? Why all the attention and effort?
If I’ve done my job well, by the end of this book your questions will be answered in full, and some positive, useful, forward-looking action steps will be well heard, clearly visible, and in hand. And, perhaps, the world will have one less toxic story in circulation, as people wake up from it and take action to undo its consequences.