Free Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It by Jeffrey D. Clements, Bill Moyers

simply declare that corporations may exist for a period of twenty years, they could do so. In contrast, neither Delaware nor any other state or federal legislature in America can decide that people shall have a limited period of existence. No matter how good the policy justification for sucha law, that law obviously would violate the Constitution’s due process clause protecting the life of all persons.
    The Right Thing in the Wrong Place
    Corporations, then, are policy tools; they are not people or holders of constitutional rights. As economic tools, corporations are highly effective. Yet the same traits that make corporations such useful economic policy tools can also make them dangerous to republican government and democracy if people and lawmakers do not watch and restrain abuses. Corporations can aggregate immense power, corrupt government, drive down wages, trash public resources, concentrate markets to squeeze out competitors, and more. As Justice William Rehnquist said in one of his many dissents from the corporate rights decisions in the late 1970s and the 1980s, a “State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” 20
    As with all tools, use of the corporate entity requires oversight and care. Gasoline is fantastic. It is also dangerous. I love working with a chainsaw or taking out guns for hunting or practice, but I know that care and rules are necessary to prevent potentially disastrous consequences of using either one. Great tools, but we would not hand them out to anyone without having some clarity about how they will be used.
    The problem of corporate power is not the personal failings of the many good and decent people who work for corporations, often creating wonderful products or services that benefit us all. Rather, corporate power is now subverting our democracy because we have forgotten that corporations are just tools, and we haveforgotten our duty to keep an eye on them. Until the corporate rights offensive of recent years, the idea of restraining corporate power was a mainstream, basic American proposition, not a fringe viewpoint.
    The
Southern Pacific
Case
    Americans always have had the responsibility to keep corporate power in check, just as we keep government power in check. It is true that the Supreme Court sometimes references the 1886 case of
Santa Clara County
v.
Southern Pacific Railroad Company
to claim that corporations are constitutional “persons” with rights. In that case, the Southern Pacific Railroad Company tried to claim that it was a “person” under the recently adopted Fourteenth Amendment to the Constitution. The Fourteenth Amendment was enacted after the Civil War to ensure that freed slaves and all people in America had equal rights to due process, liberty, property, and equal protection of the law. Southern Pacific Railroad sued Santa Clara County, California, trying to avoid a tax assessment on railroads. The railroad corporation argued, among other things, that it was a “person” under the Fourteenth Amendment and that the tax assessment on railroad property was not “equal” with taxes applied to other “persons.” The Court decided the case in favor of the railroad, but not for the reasons for which the case became known. In fact, in the
Santa Clara
decision, the Court did not discuss Southern Pacific’s Fourteenth Amendment argument at all.
    Though the Court likes to cite this case even today to shore up its creation of corporate rights, a first-year law student would be chastised and embarrassed for citing that decision for the proposition that corporations are persons under the Constitution. In fact, the decision says no such thing. The Supreme Court’s
Santa Clara
decision rested on California law and did not even