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February 21, 2003
Book Review: Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights
    by William Baue

A new book by Thom Hartmann states that the nineteenth century Supreme Court case that established corporate personhood did not in fact rule on this issue.

In the Kasky v. Nike case that the U.S. Supreme Court will hear this April, Nike (ticker: NKE) is claiming First Amendment free speech rights, which prohibit only libel and slander. Social advocate Marc Kasky's lawyers counter that all corporate communications are bound by more restrictive commercial speech laws, which prohibit the kinds of deceit free speech allows. Nike's claim to free speech rights is predicated on an 1886 Supreme Court case that established "corporate personhood" and extended citizens' rights to corporations.

However, the Supreme Court justices' 1886 decision did not, in fact, establish corporate personhood, according to author Thom Hartmann. In his recent book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights, Mr. Hartmann documents how corporations claimed the Constitutional rights of personhood under the Fourteenth Amendment almost immediately after the amendment was passed. The Fourteenth Amendment extended Constitutional rights to slaves freed after the U.S. Civil War.

The first Supreme Court justice to write an opinion on a case where a corporation claimed personhood under the Fourteenth Amendment "minced no words in chastising corporations for trying to claim the rights of human beings," writes Mr. Hartmann.

Attorneys learn in law school that the 1886 Santa Clara County v. Southern Pacific Railroad Company case established corporate personhood. However, when Mr. Hartmann read the actual decision, he found that the justices had ruled on specific tax laws and explicitly excluded the issue of corporate personhood. Baffled by this apparent contradiction, Mr. Hartmann looked up the case in Volume 118 of United States Reports: Cases Adjudged in The Supreme Court at October Term 1885 and October Term 1886 at the Vermont Supreme Court law library.

Mr. Hartmann discovered that the headnotes, which are the court reporter's summary of the case, asserted that "corporations are persons within the intent . . . of the Fourteenth Amendment to the Constitution ...," an opinion the justices did not state in the ruling.

Mr. Hartmann consulted Vermont Secretary of State and attorney Deb Markowitz, who said, "Headnotes are not precedential." In speaking with, Ms. Markowitz confirmed this statement and added that corporate personhood became legal precedent when subsequent Supreme Court cases cited the 1886 case, regardless of the fact that the opinion appeared in the headnotes and not in the ruling. However, she said, the fact that the original headnotes lack legal authority leaves corporate personhood open to challenge and potential reversal.

"The Supreme Court has reversed late nineteenth century decisions in the twentieth century in two huge cases: Roe v. Wade in 1973, which established women's right to privacy by overturning the 1873 Bradwell v. State of Illinois case, and Brown v. Board of Education in 1954, which established equal rights for African Americans by overturning the 1896 Plessy v. Ferguson case," Mr. Hartmann told

"I'm hopeful that a third reversal will happen with corporate personhood," he continued. "I'm frankly doubtful that it'll be the Kasky case that brings about the reversal."

Both Larry Tribe, Nike's counsel, and Alan Caplan, Mark Kasky's counsel, concurred, telling that the Kasky v. Nike case does not present the issue of corporate personhood for the Supreme Court justices' consideration.

"However, it may be the Kasky case that helps set up the reversal," Mr. Hartmann added. "My hope is that somehow the personhood issue can get slipped into the proceedings, primarily to educate Chief Justice Rehnquist and some of the other justices that the court never ruled that corporations are persons in 1886."

"In the 1978 First National Bank of Boston v. Bellotti case, the case that gave corporations the unlimited right to give money to political causes, Justice Rehnquist wrote the dissent in the 5-4 ruling," Mr. Hartmann said.

Justice Rehnquist opened the dissent by citing the 1886 Santa Clara County case.

"This Court decided at an early date, with neither argument nor discussion, that a business corporation is a 'person' entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment," Justice Rehnquist wrote.

"Rehnquist then goes on to say he thinks it's wrong that the court ruled that way," Mr. Hartmann said. "I think it might be very useful for him to discover that the court did not in fact rule that way."

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