Tuesday, April 10, 2012

Corporations Are Alcohol, Not Persons

There is a bit of a movement about these days to abolish corporate personhood. The modern version of corporate personhood in the United States is not that old, dating just from 1886. The contemporary movement to abolish corporate personhood can be said to date from 2000. [See Santa Clara Blues: Corporate Personhood versus Democracy, 2000]

Suppose corporate personhood is abolished. What then are corporations? I have argued in the past that they are property: "Slavery is the fiction that a person is property. Corporate Personhood is the fiction that property is a person." [quoting myself circa 2001]

But it is never that simple. What kind of property are corporations? Under the original U.S. constitution, slaves were property, but a peculiar kind of property that could be tried as criminals if they broke the law.

The Constitution does not mention corporations at all. For practical purposes business corporations (as opposed to say a city or non-business organization considered as a corporation) were left to the individual states to create and regulate.

What does the Constitution say about property? One interpretation of the creation of the Constitution is that it was all about protecting private property. Certainly that was an important consideration for the rich white men who wrote the original Constitution, but property is protected mainly by protecting the political power of the colonial elite. Looking to the Constitution itself:

The Preamble does not mention property, but then it was clearly meant as rhetoric.

Congress can give "Authors and Inventors" exclusive rights to their works for a limited period of time. We now call this intellectual property; I don't see corporations as a form of intellectual property.

So not only are corporations left out of the original Constitution; property, specifically as property, was also left out. That people have property and that laws affect property was an assumption so common that no one felt it necessary to make specific reference to property. We must look to the Amendments to see anything about property.

The original Constitution does not mention alcohol either, but it does (in Article I, Section 8) give Congress "Power to lay and collect Taxes, Duties, Imposts and Excises." This was soon shown to include the power to lay an excise tax on alcohol.

In the Bill of Rights, in Amendment III, the government is forbidden to house soldiers in private houses without the consent of the owners. Houses, of course, are a particular type of property, usually personal property but sometimes belonging to the government or corporations.

In Amendment IV the government is forbidden to search houses and "effects" without a search warrant, which provides a certain type of protection for property, and makes certain properties, houses, a shield for persons.

In Amendment V the government cannot "deprive" a person of "property" without due process of law. "Nor shall private property be taken for public use without just compensation." Of course, taxes (including excise taxes) are assumed to be the exception to this.

That is it. It is assumed that people, including judges and Congress, know what private property is, and what boundaries it may present to federal power.

Alcohol comes up twice in Amendments: in XVIII "intoxicating liquors" are made illegal. That's Prohibition. In Amendment XXI this prohibition is repealed, although individual states may continue with their own Prohibitions.

So why do I want Corporations to be treated as Alcohol? They have many of the attributes of alcohol. They can let people get out of control in a destructive manner, unleashing greed that is destructive to the ethics and economy of the American people. They can do some good in certain situations. I believe, for instance, that the beer (one bottle) I drank last night helped me to relax, and was good for my health. In other words, judgment is involved.

That alcohol is a form of private property that can be regulated and taxed was made really clear, really early under the new Constitution. Alexander Hamilton, the first Secretary of the Treasury, proposed the first excise tax on alcohol, which Congress passed in 1790. Western farmers (back then western Pennsylvania was the West) produced whiskey from their crops because it retained the value of the crop but was easier to transport and sell to the fun loving early Americans of the east coast. They started protesting the tax in 1791. As is typically case, protest got nothing done, so they essentially rebelled. George Washington road at the head of an army to suppress the Whiskey Rebellion.

Only a handful of rebels were killed, but the ability of the Feds to tax and regulate whiskey was firmly established.

I think that corporations need oversight. They are too important to our society to let them run around willy-nilly like a bunch of anarchists or hippies. Of course some corporations need more oversight than others. Mom & Pop corporations probably need no federal regulation except in extreme circumstance. Goldman Sacks probably needs two federal officials looking over the shoulder of every employee to keep it in line.

If you want to help abolish corporate personhood, check the MoveToAmend site to find an organization you can join. In the meantime, think about my Corporations are Alcohol idea.

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