Boston's Million-Dollar Tea Party
And so, Hewes says, on a cold November evening of 1773, the first of the East India Company's ships of tax-free tea arrived. The next morning, a pamphlet was widely circulated calling on patriots to meet at Faneuil Hall to discuss resistance to the East India Company and its tea. “Things thus appeared to be hastening to a disastrous issue. The people of the country arrived in great numbers, the inhabitants of the town assembled. This assembly, on the 16th of December 1773, was the most numerous ever known, there being more than 2000 from the country present,” said Hewes.
The group called for a vote on whether to oppose the landing of the tea. The vote was unanimously affirmative, and it is related by one historian of that scene “that a person disguised after the manner of the Indians, who was in the gallery, shouted at this juncture, the cry of war; and that the meeting dissolved in the twinkling of an eye, and the multitude rushed in a mass to Griffin's wharf.”
That night, Hewes dressed as an Indian, blackening his face with coal dust, and joined crowds of other men in hacking apart the chests of tea and throwing them into the harbor. In all, the 342 chests of tea—over 90,000 pounds—thrown overboard that night were enough to make 24 million cups of tea and were valued by the East India Company at 9,659 Pounds Sterling or, in today's currency, just over $1 million.
In response, the British Parliament immediately passed the Boston Port Act stating that the port of Boston would be closed until the citizens of Boston reimbursed the East India Company for the tea they had destroyed. The colonists refused. A year and a half later, the colonists would again state their defiance of the East India Company and Great Britain by taking on British troops in an armed conflict at Lexington and Concord (the “shots heard 'round the world”) on April 19, 1775.
That war—finally triggered by a transnational corporation and its government patrons trying to deny American colonists a fair and competitive local marketplace—would end with independence for the colonies.
The revolutionaries had put the East India Company in its place with the Boston Tea Party, and that, they thought, was the end of that. Unfortunately, the Boston Tea Party was not the end of that. It was only the beginning of the power of corporations in America.
The Birth of the Corporate “Person”
Fast forward 225 years.
The American war over corporate power is heating up again. A current struggle centers on the question of whether corporations should be “people” in the eyes of the law.
In October 2002, Nike appealed a lawsuit against it to the Supreme Court, asking it to rule that Nike's letters to newspapers about treatment of workers in Indonesia and Vietnam are protected by the First Amendment.
In Pennsylvania, several townships recently passed laws forbidding corporate-owned farms. In response, agribusiness corporations threatened to sue the townships for violation of their civil rights—just as if these corporations were persons.
Imagine. In today's America, when a new human is born, she is instantly protected by the full weight and power of the US Constitution and the Bill of Rights. 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.
The new corporate person is instantly endowed with many of the rights and protections of personhood. It doesn't breathe or eat, can't be enslaved, can live forever, doesn't fear prison, and can't be executed if found guilty of misdoings. 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 to protect them against governments or other potential oppressors. How did corporations become persons?
After the Revolutionary War, Thomas Jefferson proposed a Bill of Rights with 12 amendments, one of which would “ban commercial monopolies,” forever making it illegal for corporations to own other corporations, to do business in more than one specific product or market, and thus forever preventing another oppressive commercial juggernaut like the East India Company from arising again in North America to threaten democracy and oppress the people.
But Jefferson's amendment failed and the corporations fought back. Now those corporations use the club of the amendments that did pass to influence elections and legislation favoring them—in the name of their rights as persons.
An Historic Goof?
What most people don't realize is that this is a recent agreement—and it is based on an historic error. Only since 1886 have the Bill of Rights and the 14th Amendment been applied explicitly to corporations. For 100 years people have believed that the 1886 case Santa Clara County v. Southern Pacific Railroad included the statement “Corporations are persons.” But looking at the actual case documents, I found that this was never stated by the court, and indeed the chief justice explicitly ruled that matter out of consideration in the case.
The claim that corporations are persons was added by the court reporter who wrote the introduction to the decision, called “headnotes.” Headnotes have no legal standing.
It appears that corporations acquired personhood by persuading a court reporter and a Supreme Court judge to make a notation in the headnotes of an unrelated law case. In Everyman's Constitution, legal historian Howard Jay Graham documents scores of previous attempts by Supreme Court Justice Stephen J. Field to influence the legal process to the benefit of his open patrons, the railroad corporations. Field, as judge on the Ninth Circuit in California, had repeatedly ruled that corporations were persons under the 14th Amendment, so it doesn't take much imagination to guess what Field might have suggested Court Recorder J.C. Bancroft Davis include in the transcript, perhaps even offering the language, which happened to match his own language in previous lower court cases.
Alternatively, Davis may have acted on his own initiative. This was no ordinary court reporter. He was well-connected to the levers of power in his world, which in 1880s America were principally the railroads, and had, himself, served as president of the board of a railroad company.
Regardless of how it happened, an amendment to the Constitution, designed to protect the rights of African Americans after the Civil War, passed by Congress, voted on and ratified by the states, and signed into law by the president, was re-interpreted in 1886 for the benefit of corporations. The notion that corporations are persons has never been voted into law by the people or by Congress, and all the court decisions endorsing it derive from the precedent of the 1886 case—from Davis' error.
Other legal errors have been corrected with time. The notions that women aren't persons under the law, (affirmed, for example, in the 1873 Bradwell v. State case) and that blacks aren't entitled to equal protection (decided in the Dred Scott and Plessy cases) were superseded by court cases affirming the full rights of African Americans and women under the law. The establishment of corporate personhood, on the flimsy foundation of a court reporter's insertion of a phrase into a legal summary, may be the next mistake to be corrected, particularly if grassroots efforts continue to challenge the legitimacy of corporate personhood.
Adapted from Unequal Protection: The Rise of Corporate Dominance and The Theft of Human Rights by Thom Hartmann. Thom Hartmann is the author of Last Days of Ancient Sunlight and other books and has been an entrepreneur, international relief worker, director of a school for emotionally disturbed children, psychotherapist, marketing consultant, editor, and reporter.
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