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The nature of corporations and corporate personhood

Sean Marquis | 11.11.2001 05:26

The following is a transcript of a presentation given by David Cobb [member of POCLAD - Program on Corporations, Law and Democracy; Senior legal Advisor, Green Party USA], on Friday, Nov. 9th, during the US Strategy Summit on Global Corporate Power and Democracy in New York City

Let me begin, since this is about the WTO, and it is also - this day is framed around understanding and uprooting corporate power. Let me be very clear, if we eliminated the WTO today, tomorrow nothing fundamental would be different in this country.

Let's start with that reality, ok?

The reason that I think it's so important to start from that reality, is to understand that the WTO as an organization, as horrific, anti-democratic, corporate-capitalist in nature that it is, it does not address the fundamental nature of corporate power or corporate rule. And I want to urge all of us in this room to begin to use a different language.

It's not corporate power that concerns me as much as the fact that corporations have become government.

The speakers yesterday and that breakout that I participated in was extraordinary because people were talking about how do we re-create public space. How do we re-create public space in order to have, express and exercise political power.

Those kinds of conversations have not been taking place for a long time.

Sisters and brothers let me suggest to you that we are living in revolutionary times. Because people are asking themselves fundamental questions about the notion of power, where does the legitimacy of theses institutions come from, and when we ask those questions, we find that they are illegitimate.

They are fundamentally flawed and illegitimate.

And when we begin to answer those questions, additional questions suggest themselves.

I've written on the board "we the people" / "government".

In this country, the phrase "we the people" are hallowed words. We are taught those in elementary school, the creation myth of this country, as a democracy…to be an example, the light on the hill for the rest of the world, to be a shining beacon…and do you want to know why I'm so mad? Because I bought that.

Now I admit that I’m a straight, white man, and maybe as a straight, white male it's easier for me to buy that myth, but I did buy the myth. And when I grew up and had to confront the reality that it was a myth, it makes me angry.

You know I basically have been able to get around the idea that there's not an Easter Bunny. I've accepted that there's not a Tooth Fairy. Hell, I even fundamentally accepted there's not a Santa Claus. But I cannot and will not accept that this is not a democracy. This is my birth right. It is your birth right. It is our birth right as human beings. As the speakers yesterday described, it is the natural condition for us to strive for and have the ability to create our lives, that is the nature of freedom. Political, social and economic freedom.

So I want to start again that "we the people" are highly charged words.
Let me rush in…I have to rush in and acknowledge that this country, and those words were a lie upon their original utterance and they're a lie today.

This country was founded on a fundamental violence against people of color, women, indigenous people and working class people everywhere, and we cannot forget that, we must not forget that, we must make it central to everything we do. But, as we say in Texas, I don't want to throw the baby out with the bath water.

Just because that was a lie to start with, as a structure of governance, the idea of "we the people" being absolutely sovereign is a good idea. Rejecting monarchy, rejecting hereditary monarchy as a form of government, is frankly a brilliant step forward in human relationships. So let's acknowledge that was a good idea, even though it was uttered by, as one famous historian has said, "the well fed, the well bred, and the well read." The rich white men who basically founded the Constitution of the United States.

This works by the way, at least in theory. We've never really seen if really can work because basically the entire history of the United States of America can be understood as a series of struggles by different individual groups to be defined legally as persons. So if we accept the assumption of "we the people" meaning all living, breathing human beings, we should give democracy a try under this idea. Let's see.

There's been conversation about direct democracy as opposed to representative democracy. I'd love to have that conversation. I'd like to experiment with either direct or representative democracy under an honest framework. Frankly we've never seen it. Ever.

So the point is…."we the people" and "government", this is the very framework of the Constitution of the United States. And what's so important about this…this is the dichotomy of the Constitution of the United States, nowhere are corporations mentioned in the Constitution, suggesting that the Founding Fathers, those hallowed, mythical …those men who set-up a framework to make sure that property rights were protected at the expense of all human rights, this set-up, "we the people" and government, the fundamental reality is the people are sovereign with individual rights.

Government is described in terms of specific duties, they are an accountable body to the people. All legitimate government flows through "we the people", we are sovereign. Those are powerful words. Those are revolutionary words. Now if we are actually sovereign and government only exists to do the very specific duties that we in our wisdom allow them to do. We should understand, and by the way corporations are never mentioned, we should understand that this idea of the difference between rights and duties is the very definition of the law itself.

Let me repeat that because I think it's important. The whole notion of law is premised on rights and duties as it relates to either individuals or entities, groups of people.

What's so important to recognize is that corporations which were originally chartered by the King - the founding of corporations by the way were in 13th, 14th, 15th century Europe, they were created as institutions and mechanisms to exploit, colonize, rape, I mean are we getting the picture here? The whole point of it was to vacuum out the resources, including human beings as slaves from Africa, Asia, later North and South America. They are institutions of brutal oppression. Is anyone surprised that they act that way today? They were designed to do that. They do what they were designed to do. The difference is that corporations were originally designed by the monarchs, the kings. The kings were sovereign, they had the ability to create them. This new idea this new schema creates the idea that "we the people" are completely sovereign, state governments now, as the representatives, now charter these corporations.

My point is, under this framework, the corporation has to be understood to be on this side [the side with government], the reason, because government still creates these corporations. State governments charter them, state governments create them, they are creatures of the law, they are creatures of our government and properly understood, they are public institutions. A serious conversation needs to be had about whether these institutions should even be allowed in a democratic society. But, regardless of whether we allow them or not let's be clear that they are public institutions, they are not private.

In a very real sense, the public framework here is the public sphere, the private sphere, and the public sphere. Individual private rights, but when you go into public, a different reality happens. The civic sphere happens. The point that I'm making right now is that corporations are created by government and we can define what they can and cannot do.

Corporate personhood is the perverse, obscene, ridiculous notion that a corporation is and individual person, vested with inherent rights. My point about doing this whole exercise is that corporate personhood perverts the entire framework of the United States of America.

Whether or not you buy the Constitution, even the ability of those who believe it, is undermined and ultimately does not work. The point is that corporate personhood gives corporations the rights of individual citizens. The right to speech, the right to assemble, the right to be defended from illegal search and seizure. The point is that this legal doctrine, and it's not a law, it's an entire doctrine, is what is at the roots of corporate governance, the idea that corporations are making the fundamental ruling decisions in this country.

It's not just that they are spewing toxic poisons into our air and water, it's not just that they are exploiting human beings who are workers, it's that they undermine our very society and culture. And it prevents us from having reasonable discussions about the society that we want to live in. That is even to me the more dangerous…that doctrine, not just the law but the entire doctrine must be challenged. And the good news is…there is a long history in this country of citizen activism where that's done. And whether or not we look at the abolition of slavery, women earning the right to vote, the trade union movements, the whole notion of worker's rights. Those things have one thing in common, that is they culminate in changed legal doctrines. The entire law as it relates to groups of people ends up changing. And that's what I suggest what our new challenge today is.

How do we move beyond the environmental movement or the poor people's movement that are beginning to ask for individual change from individual law to individual law. To begin to challenge the very institution of the corporation as an unaccountable, unelected institution that acts as government and empower ourselves as self-governing people. The good news is that has already begun.

Sean Marquis
- e-mail: lesmarquis@ziplip.com

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A lost opportunity

11.11.2001 14:25

'This is government of the people, by the people and for the people, no longer. It is government of corporations, by corporations and for corporations.' -- US President Rutherford B Hayes, 1876

The presentation by Davi Cobb was sadly a lost opportunity as mainly waffle. His basic premise is wrong.

Corporations, as we know today the modern corporation, were formed when projects were beyond the ability of the traditional capitalist eg railways. Whilst they were allowed to make a profit, they were also formed for the public good. They were heavily regulated, eg rail fares controlled, thye also had a limited lifetime.

Unfortunately they became very wealthy and were able from the very early days to exhert undue influence.

Coporations exist as a legal entity because otherwise they would not legally exist. It also means they can be sued. The problem is that they have all the advantages of a legal person, but without any of the responsibilities. As legal entities there is no reason why they cannot face 'death row' if their corporate crimes demand it.

WTO should be abolished. If we settle for reform we will get cosmetics. Democracy can be reformed because there is some underlying good. With the WTO this is not the case, there is no underlying good to return to, it was formed in the image of big business and is doing their bidding.

Very brief. More detailed exploration may be found in the relevant essays to be found at:

 http://www.heureka.clara.net/gaia/

Keith Parkins

Keith Parkins
mail e-mail: keithpp@hotmail.com
- Homepage: http://www.heureka.clara.net/gaia/