300,000 people took over Manhattan Island this weekend demanding climate justice (Full disclosure: I was one of them). While it’s important for the continued existence of the human race to minimize greenhouse gases like CO2 and methane emissions that generate heat in our atmosphere, simply using sustainable energy sources and consuming less isn’t a cure-all for climate change. If we really want to get to the root of the problem and have real climate justice, we have to end corporate personhood. Until corporations are no longer considered people, they’ll always be able to claim their inalienable constitutional rights to make a profit at all costs and get around any new regulations, like emissions laws or energy usage limits.
How Artificial Entities Gained Constitutional Rights
Corporations have been people since 1886, when the U.S. Supreme Court ruled in the Santa Clara County vs. Southern Pacific Railroad case that the constitutional right of equal protection under the law, originally meant for freed slaves in the 14th Amendment, applied not only to human beings, but to artificial entities like corporations as well. Since then, these artificially-created legal entities meant to shield people from liability and risk have had the same constitutional rights as living, breathing human beings with a pulse, like you and me, and have finagled those rights to gain control over every aspect of society.
Previously, corporations were chartered for very specific projects solely for the public good and kept on a tight leash – if a corporation did anything it wasn’t specifically chartered to do, its corporate charter was revoked. This changed in the 1818 Dartmouth College vs. Woodward ruling, in which the Supreme Court agreed that Dartmouth College’s corporate charter was a contract between private entities, and beyond the regulation of the state legislature.
After corporations gained personhood rights in 1886, they became persons with Fourth Amendment protections in 1906 with the Hale vs. Henkel decision. A major antitrust case against a group of tobacco corporations was stopped short when, after the U.S. government demanded a tobacco farmer turn over his financial documents, he alleged that his corporation had the right to be free from unreasonable search and seizure as a corporate “person.”
In 1976, corporate money became protected by the First Amendment in the Buckley vs. Valeo ruling. Seven justices agreed that donations to campaigns were the same as free speech. The 1979 First National Bank of Boston vs. Bellotti Supreme Court case established precedent that corporations’ money was not only free speech, but that corporate money could be allowed to influence the outcome in a ballot initiative rather than simply go to one candidate or another in an election. Interestingly enough, the justice who wrote the majority decision in Bellotti was Lewis Powell, author of the 1971 Powell Memo. Powell wrote the memo to the U.S. Chamber of Commerce when he was still a corporate lawyer, laying out a strategy for corporations to take over society by first taking over the schools, the media, and the courts.
In more recent history, the 2010 Citizens United vs. FEC case said that corporate money in elections was free speech and could be completely unregulated through independent channels. This year’s McCutcheon vs. FEC case ruled that money in elections was free speech, and current aggregate limits on individual donations were a violation of the First Amendment. While Citizens United and McCutcheon are the most well-known cases, simply overturning those cases while ignoring all the rest is akin to scratching off the scab but doing nothing about the infection.
Essentially, immortal, fictional, man-made legal phantoms that neither eat, drink, breathe, make love, nor die, are fully armed with every constitutional right you and I have. The difference between corporations and us is that they often have more money to play with to hire expensive lawyers that can undo the will of the people. One case study is what happened in Humboldt County, California.
What Corporate Constitutional Rights Has to Do with Climate Justice
In the 1990s, Humboldt County voters passed strict guidelines establishing ownership of their environment, along with zoning laws to prevent public land from being converted into something the people didn’t support. Walmart attempted to open a location in Humboldt County in 1999, but the zoning laws prevented them from doing so. Walmart spent over $200,000 hiring petition gatherers in the community to overturn zoning laws, but the ballot initiative to overturn the people’s own zoning laws fell short. A victory, right? Think again.
In 2003, the Maxxam Corporation’s subsidiary, Pacific Lumber, wanted to cut down a portion of Humboldt’s redwood forest, and submitted a logging plan adherent to the county’s environmental standards. After the Department of Forestry sanctioned it, Pacific Lumber ended up cutting down far more trees than originally proposed. After enough citizens complained about the water quality and damage to the environment caused by the logging, newly-elected District Attorney Paul Gallegos sued Pacific Lumber for fraud. Maxxam then mounted a recall campaign against Gallegos in retaliation for his enforcement of the law, and the recall cost the people of Humboldt County $300,000 to keep their elected official. Gallegos kept his job by a 69 percent to 31 percent margin, and continued his lawsuit against Maxxam, which amounted to over $250 million. Another win for the people, right? Wrong.
The people of Humboldt County were so incensed over the corporate-funded recall effort against their duly-elected official that in 2006, they passed Measure T. The measure effectively prohibited corporations and other entities from outside Humboldt County from donating money to influence Humboldt County elections. In 2008, the Pacific Legal Foundation, whose key funder in its first several decades was Richard Mellon Scaife (heir to the Paul Mellon dynasty), and which is currently funded by a Koch Brothers-funded foundation, successfully overturned Measure T in U.S. District Court. The PLF argued that Measure T’s restrictions on campaign financing was a violation of both the 14th Amendment’s equal protection clause, and the First Amendment. This set the precedent that allowing some corporations to set up shop, but not others, like Walmart, violated the 14th Amendment. This also set precedent that when Maxxam submitted a fraudulent logging plan, it was allowed to do so, since lying was a form of free speech.
So, when you ask, what do corporate constitutional rights have to do with climate justice? Everything.
How We Fix It
We can regulate greenhouse gas emissions all we want, pass a carbon tax, and demand moratoriums on drilling and fracking. But because the Supreme Court has ruled that corporations have no duty to the public good and can be unilaterally focused on making a profit at any cost, and that corporations are legal persons with inalienable constitutional rights, any corporation can sue the people and win as long as they have those constitutional rights.
However, this can be fixed by pursuing a simply-worded constitutional amendment. It must state that constitutional rights are only intended for human beings, not artificial entities like corporations. And it must also state that money is property, not free speech, and can be regulated in elections and ballot initiatives. If we have the grassroots movement to put 300,000 people in the streets of New York City for climate justice, we have the movement to pass that amendment. Let’s get to work.
Carl Gibson, 27, is co-founder of US Uncut, a nonviolent grassroots movement that mobilized thousands to protest corporate tax dodging and budget cuts in the months leading up to Occupy Wall Street. Carl and other US Uncut activists are featured in the documentary We're Not Broke, which premiered at the 2012 Sundance Film Festival. Carl is also the author of How to Oust a Congressman, an instructional manual on getting rid of corrupt members of Congress and state legislatures based on his experience in the 2012 elections in New Hampshire. He lives in Sacramento, California.