We the Corporations: How American Businesses Won Their Civil Rights

We the Corporations: How American Businesses Won Their Civil Rights

We the Corporations chronicles the astonishing story of one of the most successful yet least well-known “civil rights movements” in American history. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution—and today have nearly all the same rights as ordinary people.Exp...

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Title:We the Corporations: How American Businesses Won Their Civil Rights
Author:Adam Winkler
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We the Corporations: How American Businesses Won Their Civil Rights Reviews

  • David Wineberg

    It is endlessly entertaining to examine Supreme Court decisions, to follow the logic and often the prejudice and corruption they comprise. We The Corporations selectively follows the tribulations of the 14th amendment, designed specifically to prevent discrimination among the newly freed slaves following the Civil War. Corporations immediately overtook it, claiming it was meant for them. The results have been dispiriting to say the least. Between 1868 and 1912, of 604 14th amendment cases, only

    It is endlessly entertaining to examine Supreme Court decisions, to follow the logic and often the prejudice and corruption they comprise. We The Corporations selectively follows the tribulations of the 14th amendment, designed specifically to prevent discrimination among the newly freed slaves following the Civil War. Corporations immediately overtook it, claiming it was meant for them. The results have been dispiriting to say the least. Between 1868 and 1912, of 604 14th amendment cases, only 28 were on behalf of blacks, and most of them lost. Corporations on the other hand, began an endless winning streak, culminating in the execrable Citizens United decision that has allowed companies to buy election issues, and of course, candidates.

    The evidence shows that corporate constitutional rights as persons is a lie. Corporations have pummeled the courts with suits claiming natural person rights, and have won enough victories to make it law. Along the way, corrupt and incompetent justices have attributed rights to them that do not exist, while corporate lawyers have interpreted the constitution to make it seem the founders had always intended to put corporations on an equal footing with people. It is not so, says Adam Winkler in this engrossing book.

    Corporations successfully argue that they have no race or religion when it suits them, and also that stockholders’ race or religion exempts the firms from laws they don’t like. Piercing the corporate veil to claim the stockholders control in cases where it is beneficial, while claiming the corporation is an artificial construct of law where no humans control (for example when prison beckons). That corporations have the sole goal of making money for stockholders, but also that corporations have unlimited funds for political races without regard to stockholders.

    The Roscoe Conkling case is particularly instructive. Conkling was on the committee that drafted the 14th amendment. Later, representing Southern Pacific Railroad, and after all the other drafting committee members had died, Conkling told the Supreme Court he had the official notes of the committee’s deliberations, and they said the intent was always to extend person rights to companies. Without anyone to refute these claims, and apparently without anyone ever examining the notes, the Supreme Court bought it – hook, line and sinker. Later examination showed the notes intimated no such thing, and neither did the wording of the amendment, nor any of the deliberations across the country at the time of debate, hearings and passage. But the law of the land changed to accommodate this lie. Conkling’s professional descendants in the US Chamber of Commerce claim to win 70% of the corporate rights cases they bring to the Supreme Court.

    It all leads sadly to Citizens United, in which corporations got not just 14th amendment rights, but first amendment rights – everything but the vote itself. The Roberts court shamed itself and in particular Chief Justice Roberts himself. Roberts had promised to be a minimalist, delivering narrow, incremental decisions that didn’t overreach. But in Citizens United, he expanded the minor claim that a film with a small corporate contribution could be shown during the election – to broadly encompass unfettered corporate free speech, unlimited cash contributions, plus the overturning of previous precedents, none of which were sought in the matter. The country cried Shame, with 80% disagreeing that corporations should be totally free to spend on politics at will. Winkler says Citizens United was not a product of the Roberts court so much as the culmination of “a two hundred year struggle” by business to have it all ways.

    What is striking is that mere mortals can easily see where the Supreme Court went off the rails, yet the decisions stand. In lieu of common sense, politics prevails. Personal prejudices and agendas beat the constitution. Contradictions allow for any kind of interpretation that favors corporations. And lawyers and judges continue to cite case law incorrectly. The insiders know it is all wrong. Winkler quotes Delaware (with the most lenient corporate laws in the country) Chancery Judge Leo Strine that a corporation “is a distinct entity that is legally separated from its stockholders, managers and creditors. That is the whole point of corporate law, after all.” Unless you’re a Supreme Court justice, it seems.

    David Wineberg

  • Mehrsa

    It's hard to write a 400 year history, but this was very well done and admirably focused. At times I wished for more analysis and less of a play by play, but the story that emerges is pretty clear. What I found fascinating is the early American history--We, the people of America, were created by corporations and the early state charters resembled corporate charters more than constitutions. Yet we have not had a comfortable relationship with corporate personhood and it's been a push and pull and

    It's hard to write a 400 year history, but this was very well done and admirably focused. At times I wished for more analysis and less of a play by play, but the story that emerges is pretty clear. What I found fascinating is the early American history--We, the people of America, were created by corporations and the early state charters resembled corporate charters more than constitutions. Yet we have not had a comfortable relationship with corporate personhood and it's been a push and pull and I think we're probably at a nadir at this point in corporate power.

    The most devastating part was the use (perversion) of the 14th Amendment by corporate lawyers. Not only did the 14th and 15th Amendment and the courts that administered them NOT protect the freed slaves, but they were recast as always having been about corporate rights. Starting with the Slaughterhouse cases but throughout history, they were used as a sword by corporations against public-protecting regulations.

  • Sher

    One of my top 2018 reads. _We the Corporations _ traces the history of corporate rights in America, and clearly shows what led up to the landmark decision Citizens United. Apparently, based on research cited in this book- there is nonpartisan disapproval across the board regarding Citizens United. So, this book will be on interest to democratic, independent, and republican readers.

  • Robert Gustavo

    The content is excellent and informative, but the writing is a little dry and repetitive. It presents the history of corporate law, and the expansion of corporate rights from the founding of the colonies up to Citizens United and Hobby Lobby — including how the courts swing between treating corporations as people and piercing the corporate veil, mostly settling on whichever grants more rights to corporations.

    Well worth a read, but more of a book that you will remember things from rather than a b

    The content is excellent and informative, but the writing is a little dry and repetitive. It presents the history of corporate law, and the expansion of corporate rights from the founding of the colonies up to Citizens United and Hobby Lobby — including how the courts swing between treating corporations as people and piercing the corporate veil, mostly settling on whichever grants more rights to corporations.

    Well worth a read, but more of a book that you will remember things from rather than a book that you will remember.

  • Marks54

    This is a book by a law professor at UCLA detailing the history of how US corporate bodies came to increasingly be viewed as legal persons with a widening array of property and liberty rights comparable to those we normally consider as being possessed by individual human beings. The story is a long incremental one beginning with John Marshall and the Bank of the US and culminating in the Citizen’s United case establishing freedom of speech and political participation for corporations and union o

    This is a book by a law professor at UCLA detailing the history of how US corporate bodies came to increasingly be viewed as legal persons with a widening array of property and liberty rights comparable to those we normally consider as being possessed by individual human beings. The story is a long incremental one beginning with John Marshall and the Bank of the US and culminating in the Citizen’s United case establishing freedom of speech and political participation for corporations and union organizations. This is a book about the development of constitutional law and so focuses on the dynamics within the courts and the legal profession that may strike observers as arcane and counter to common sense. This is a strength of the book - if there was not some logic and order to legal processes, think how chaotic our history would be.

    The picture that Winkler presents is a steady evolution of corporate rights that has been as successful as it has been obscure to public view. Corporations have made much more progress in gaining rights than have other disadvantaged groups and they did so generally well in advance of those other groups. Given partisan rancor about money in politics and dark money, one is tempted to feel disturbed about the developments that Professor Winkler describes. He certainly seems less than sanguine about them during the book and is critical of the Citizen’s United case, the case around which the arc of the book is focused. The concluding chapter with comments by Leo Strine is particularly enlightening regarding where the book ends up on the evolution of corporate rights.

    But it is not that simple, is it? Whatever one thinks about the American standard of living and the evolution of the country, that evolution has taken place in a national context filled with large active corporate actors who produce goods and services, employ people and pay salaries and provide benefits, and play a continuing role within society. An America without large corporate actors would not be the country that developed into the late 19th and then the 20th centuries. Corporate actors, who need to be able to function, are part of the deal in America warts and all. That the US legal regime has adapted to their presence and facilitated there activities is not an unabashed bad but a part of the world we live in. I had recognized parts of the story but had not tied it together.

    Some of the more interesting parts of the book address how developments in corporate rights have influenced how other actors can pursue their own rights. Various corporate actions have influenced US society and governance since colonial times and have provided tools for all sorts of people and associations, unions, and other collectivities to use. This history is much less about good guys versus bad guys than the popular rhetoric would suggest.

    A particular emphasis of the book that I enjoyed by the distinction between deciding about corporations as distinct actors versus deciding about them by “piercing the corporate veil”. One of Professor Winkler’s themes throughout the book is that decisions about corporation and business rights have often been made by looking past the corporate veil and focusing on the individuals making up the corporation. When this logic has been followed, the result has been to expand the rights of corporations and businesses in ways that parallel those of individuals. The paradox is that the rights of corporate actors are expanded by not looking at the corporate actor on its own terms but instead at the individuals making up the actors. Conversely, when the corporate actor has been viewed as distinct from its constituent members, the result has been decisions that highlight the artificiality of the corporate actor and lead to much more limited sets of rights. So the long process that Winkler chronicles has been driven by a focus on individuals rather than on corporate actors, even thought the value of a corporate actor - for example in limiting liability - would suggest that the distinction between the actor and its constituent members is worth maintaining.

    This book is very readable and could have been far more technical than it was. Given the importance of these issues in recent politics and national elections, Professor Winkler has done a service to readers by making this story accessible to a wide audience and by giving readers much to consider.

  • Conor

    If you're interested in understanding how we got to the point where corporations have more say in our democracy than The People, look no further. Adam Winkler, a professor of law at UCLA, has written a corker.

    I might be biased as a history nerd/major and a lawyer, but I found this history--essentially of the idea of corporate personhood--to be fascinating and methodical. Winkler starts by explaining an alien if not absurd concept to the modern, unenlightened reader: corporations--which were des

    If you're interested in understanding how we got to the point where corporations have more say in our democracy than The People, look no further. Adam Winkler, a professor of law at UCLA, has written a corker.

    I might be biased as a history nerd/major and a lawyer, but I found this history--essentially of the idea of corporate personhood--to be fascinating and methodical. Winkler starts by explaining an alien if not absurd concept to the modern, unenlightened reader: corporations--which were designed to pool the resources and liabilities of many different people to accomplish very specific ends--were very rare at Common Law, required government permission to exist, and needed to have a function that was salutary to the commonweal to justify their exceptional rarity and special rights. Examples included funds to build canals, aqueducts, bridges, and universities. These corporations--including still extant institutions like Harvard, Yale, and Dartmouth--existed at the pleasure of the state, and could have their charters revoked at any time for a number of reasons, at least under the British system. But, when in the early Nineteenth Century the state of New Hampshire tried to take control of a university within its borders to which its predecessor colony had granted a charter (through the British Crown), the Supreme Court issued a fateful decision. SCOTUS did not extend the British Crown's ability to disestablish a corporate charter to the successor state of New Hampshire, with the [i]ultra vires[/i] reasoning being that the state owed some deference to the people and property comprising the corporation, in this case Dartmouth College. Fatefully, corporate personhood gained a toehold in America, and through it--the world.

    Although corporations are not mentioned in the Constitution and there is reason to believe that the Founding Fathers were suspicious of their influence upon democracy, the passage of the Fourteenth Amendment, sadly and ironically, was used to buoy the case for corporate personhood. Arguably the most important of all the amendments, the Fourteenth Amendment provides for many things--incorporation of many of the Bill of Rights amendments, citizenship for emancipated slaves, and equal protection under the laws of the country. It was a Reconstruction Amendment, and it's impossible to argue in good faith that its main object was not the extension of citizenship to all men (though, of course: the usual disclaimers about women and other groups not being ushered in as citizens after the Civil War). Intention be damned, Winkler walks us through the shameful failure of the courts to actually protect Freedmen, juxtaposed by their zeal for using the amendment to fashion newfound rights for corporations, aided by the outright lies of folks like Roscoe Conkling, who traded on his reputation and his role in drafting the Fourteenth Amendment (shrewdly after all his fellow drafters were dead) to state that it was intended to protect corporations.

    Well, the rest is history, and it's interesting history at that. There's no doubt that with a conservative lock on the Supreme Court and lower judiciaries over the next few decades, corporations will be empowered even more. Their speech rights are ascendant, and those of non-corporate individuals (also known as "people") are in decline. It's a sad state of affairs, but it's your duty as a citizen to know it and to rail against it if you find it unjust.

    So go out and read this book!

  • Maynard Handley

    I expected an uninteresting rant about the plutocracy in America --- valid but nothing we haven't heard a thousand times before.

    But this book is a lot more interesting than that. It's a legal history describing the cases and arguments that led to the way American law conceptualizes corporations; and like the best such histories it's full of cases that, while decided in what you might feel was the "right way", result in "problematic" long term consequences...

    The inflammatory subtitle is clickbai

    I expected an uninteresting rant about the plutocracy in America --- valid but nothing we haven't heard a thousand times before.

    But this book is a lot more interesting than that. It's a legal history describing the cases and arguments that led to the way American law conceptualizes corporations; and like the best such histories it's full of cases that, while decided in what you might feel was the "right way", result in "problematic" long term consequences...

    The inflammatory subtitle is clickbait, and if that's what you want from the book, you'll probably be disappointed by its subtlety and unwillingness to engage in blanket condemnation.

    My one complaint is that the author (like most) certainly loves his words, and his editor did not step up to deal with this. The book is at least 50% longer than it needs to be, and ideas, explanations, even exact phrases, are frequently repeated.

  • Andy

    This is a treasure trove of fascinating facts about the history of the U.S. Supreme Court. The book could have been a good deal shorter without losing anything.

    Also, I feel that there was not enough attention paid to the concept of revoking corporate charters, i.e. if corporations are grossly irresponsible (e.g. tobacco) then they don't have an inalienable right to exist (because they are not people!). They are legal entities created by the government, and thus with some consideration for the p

    This is a treasure trove of fascinating facts about the history of the U.S. Supreme Court. The book could have been a good deal shorter without losing anything.

    Also, I feel that there was not enough attention paid to the concept of revoking corporate charters, i.e. if corporations are grossly irresponsible (e.g. tobacco) then they don't have an inalienable right to exist (because they are not people!). They are legal entities created by the government, and thus with some consideration for the public good in a democracy.

    A bumper sticker says "I'll believe corporations are people when they send one to jail." The author explains why the issue is not really about whether corporations are people--okay fine--but if the correction is that corporations are made up of people behind a "veil" then that still doesn't explain why these people pretty much never go to jail even for horrendous crimes like abetting terrorists.

  • Rahul  Adusumilli

    I knew law could be arbitrary but I didn't know law could be fun. The author likes to repeat, a good 100 pages could easily have been shaved off. The historical research is on fleek, to borrow a phrase from the kids.

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