Adam Winkler on How Corporations Won Their Civil Rights

Name the most powerful civil rights movement in America.

Women? No.

African Americans? No.

Gay rights movement? No.

The most powerful and successful civil rights movement in America?

The corporate civil rights movement.

And now, Adam Winkler, a professor at UCLA Law School, is out with a new book documenting the history of that movement.

It’s called – We the Corporations: How American Businesses Won Their Civil Rights.

“I was surprised to discover that while the first Supreme Court case on the rights of racial minorities was decided in 1857, the first case on the rights of corporations was decided a half century earlier in 1809,” Winkler told Corporate Crime Reporter in an interview last week. “And unlike many women and minorities who lost their early cases in the Supreme Court, corporations have amassed a remarkable track record of success. And today they have nearly all the same rights as people. It was a deep and rich struggle for corporate rights.”

“In recent years, the Supreme Court has ruled that business corporations have rights of free speech and religious liberty. I sought to find out how did corporations come to win our most fundamental rights. In school, we learn about civil rights or women’s rights, or immigrants’ rights, even states’ rights. But not corporate rights. I was shocked to discover that like women and minorities, corporations have fought from America’s earliest days to win equal rights. And they used those rights to fight against business regulation. In some ways, we might think of the struggle for corporate rights to be one of the most successful but least known civil rights movements of a sort in American history.”

Give us a clear example of how corporations use their rights to defeat business regulation.

“Corporations use their rights to fight back against business regulation. Even when laws are passed to protect consumers, investors or the larger public, they can be challenged in court as an infringement of the corporation’s rights.”

“For example, in the Hobby Lobby case, the chain of craft stores was able to win an exemption from the government to cover birth control in employee health plans. The Supreme Court said that this requirement violated the company’s religious beliefs under a federal statute.”

“Tobacco companies have used the First Amendment to overturn a requirement for graphic warnings on cigarette packs.”

“You might think of a constitutional right as  kind of a Jedi light saber that corporations use to strike down laws that they believe interfere with their pursuit of profit.”

Should corporations have the rights of human beings?

“There is a vibrant movement right now to amend the Constitution to declare that corporations have no rights under the Constitution. While I believe we do need better laws to limit corporate power and influence, the proposed amendment goes a bit too far. If corporations have no rights, then the government could seize their buildings without paying just compensation.”

“If corporations have no rights, then President Trump could censor the New York Times or CNN – both corporations. One way we could sort this out was suggested by the Supreme Court about a century ago when the Court said that corporations should have property rights but not liberty rights. They needed basic protections for their assets. But they shouldn’t have the same rights associated with political participation and personal conscience that individuals have. That seems to be a distinction that today’s Supreme Court has lost sight of.”

Do corporations have all the rights of humans?

“Corporations have aggressively pursued a wide number of individual rights from First Amendment freedom of speech rights, to Fourth Amendment rights against unreasonable searches and seizures, to the Fourteenth Amendment right to equal protection and due process.”

“However, there are rights that corporations have not claimed in court and it seems unlikely they will be extended to corporations. Corporations do not have the right to vote. They don’t have the right to run for office. They don’t have the right to marry. So far, no corporation has claimed the Second Amendment right to keep and bear arms, but given the NRA’s sway in American politics, that’s probably only a matter of time.”

“There are rights in the Constitution that have no application whatsoever to a corporation because a corporation, for example, does not need a right to sexual privacy. And no corporation has ever claimed one.”

Do corporations have Fifth Amendment rights?

“Corporations have some Fifth Amendment rights. But they do not have the right against self-incrimination. They do have rights of due process and the implicit right of equal protection of the laws under the Fifth Amendment. They also have the Fifth Amendment right to be compensated in the event that their property is taken for public use.”

The cast of characters in the book includes Lewis Powell, Roger Taney and Roscoe Conkling.

“Lewis Powell I call the corporation’s justice,” Winkler said. “Lewis Powell did more than any justice to expand the power and influence of corporations, including the power and influence of corporations on American politics.”

“Before he even became a justice, just months before he was appointed to the Supreme Court, Powell wrote a famous memorandum known as The Powell Memorandum. It was written to the Chamber of Commerce. And it laid out a game plan for corporations to fight back against the Naderite movement of the late 1960s and early 1970s. That Powell Memorandum is quite famous in historical circles for inspiring the rise of the New Right and the business backlash that took place in the mid to late 1970s.”

“Once on the Supreme Court, Justice Powell, while socially liberal on many issues, was a pretty consistent vote for the rights of corporations, including in a case called First National Bank of Bellotti, which 30 years before Citizens United, held that corporations had a First Amendment right to spend money to influence ballot measures.” “Roger Taney was Chief Justice of the Supreme Court right before the Civil War. And he wrote the Supreme Court’s notorious decision in the Dred Scott case right before the Civil War. In Dred Scott, Taney wrote – black men had no rights the white man was bound to respect.”

“Taney, however, was a corporate reformer. He thought that corporations had too much power. He wanted to democratize corporations, and ruled consistently to limit or restrict the rights of business corporations.”

“Roscoe Conkling was an illustrious leader of the Republican Party in Congress for nearly two decades after the Civil War. Conkling, after he left the Senate, became a lawyer for the powerful Southern Pacific Railroad.

Representing the Southern Pacific, Conkling went to the Supreme Court and told the justices that the Fourteenth Amendment, which was adopted after the Civil War to protect the rights of the newly freed slaves, was also written to protect the rights of corporations. And that corporations had a right to equality under the law and couldn’t be discriminated against on the basis of their corporate identity.”

“And Conkling was uniquely situated to make this argument about the original meaning of the Fourteenth Amendment because Conkling had been a drafter of the Fourteenth Amendment when he was a young member of Congress. And yet historians have looked back on Conkling’s story and determined that he likely misled the Supreme Court. There is no evidence to suggest that the framers of the Fourteenth Amendment were thinking about corporations rather than the rights of the newly freed slaves. As one historian concluded, Conkling engaged in a brazen forgery to win new rights for corporations.”

In that expansive movement for corporate rights, did they also expand their political power?

“The struggle for corporate rights was a struggle for corporate power,” Winkler says. “We often think of corporations being especially powerful in the legislative process, influencing who gets elected and influencing what kind of laws Congress and the states pass. And indeed corporations are very influential in that way. But we sometimes don’t focus on how influential corporations are in the judicial branch as well. But the judicial branch is uniquely designed to help corporations and big business. They can afford to hire the best, most creative lawyers to represent them.”

“Yes corporate political power is enhanced by seeking corporate rights. In those few instances where corporations lose in the political process, and investors, consumers and the public wins, Constitutional rights enable corporations to go to court and have one more chance to overturn that law. And the steady stream of litigation by corporations creates disincentives for lawmakers who want to regulate corporations. They know that whatever laws are passed are going to be tied up in court for years to come.”

Do corporations now have more power and more rights than at any other time in our history?

“It certainly seems that way. Look at the Supreme Court. Today, the Supreme Court bar is filled by big firm lawyers who represent primarily big corporations. And nearly all of the justices on the current Supreme Court were endorsed by the Chamber of Commerce, whether they were appointed by Republicans or Democrats.”

[For the complete q/a format Interview with Adam Winkler, see 32 Corporate Crime Reporter 9(10), Monday February 26, 2018, print edition only.]

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