Perversion of Justice: Citizens United, Corporate Power and Black Disenfranchisement

By Michelle Chen Jan 25, 2010

Corporations are people, too. That was the logic behind the Supreme Court's latest assault on the electoral process. Divined from a wildly creative reading of the law, the concept has been manipulated over the years to grant extraordinary powers to big business, at the expense of the vulnerable minorities that the Constitution is supposed to protect. The perverse irony is that the impending flood of yet more corporate lucre into politics all stems from the 14th amendment. In the wake of the Civil War, the 14th Amendment was enacted to enshrine Black citizenship, as former slaves struggled to integrate into the economic and political establishment. That didn't last. As late Justice Hugo Black pointed out, it morphed into a lever for corporations to resist state aiuthorit and taxation. With the rise of Jim Crow and a new era of structural oppression, the 14th amendment drifted from its foundational principle to become a shield for unbridled corporate wealth. In “The Hijacking of the 14th Amendment," Attorney Doug Hammerstrom writes:

While very few people were turning their attention and energy to bringing former slaves into society – indeed, far more energy was being put into NOT bringing them into society–corporations were using a great deal of their wealth to hire lawyers to advance their interests in the courts. The Fourteenth Amendment offered an opportunity to advance corporate interests, and the corporate attorneys set out to exploit it. Of the 150 cases involving the Fourteenth Amendment heard by the Supreme Court up to the Plessy v. Ferguson case in 1896 that established the legal standing of “separate but equal,” 15 involved blacks and 135 involved business entities. The scope of the Fourteenth Amendment to secure the political rights of former slaves was so restricted by the Supreme Court that blacks won only one case. The expansive view of the Fourteenth Amendment that comes down to Constitutional Law classes today is the result of corporations using the Fourteenth Amendment as a shield against regulation. Ultimately the Plessy decision left Jim Crow laws, state laws discriminating against blacks, in place because of doctrines developed in those corporate shield cases…. In the 13 years before 1912, 409 due process opinions were handed down. From 1886-1912 two cases restrained or annulled State action involving Negroes, and 39 cases restrained or annulled State action against corporations. While the corporations were triumphant in wielding the Fourteenth Amendment as a shield against democratic control, blacks were abandoned by the Supreme Court. Not only was the law not used to protect their Constitutional rights, the law was used affirmatively to degrade them.

In a primer on the history of corporate personhood, Richard L. Grossman and Frank I. Adams argue that 14th amendment legal challenges served as a tool for gutting “local, state and federal laws enacted to protect people from corporate harms.” And so a critical protection against institutionalized racism became one more weapon in the corporate arsenal.

The high court ruled that elected legislators had been taking corporate property 'Without due process of law." Emboldened, some judges went further, declaring unions were civil and criminal conspiracies, and enjoining workers from striking. Governors and presidents backed judges up with police and armies. By establishing "new trends in legal doctrine and political-economic theory" permitting "the corporate reorganization of the property production system," the Supreme Court effectively sabotaged blossoming social protest movements against incorporated wealth. Judges positioned the corporation to become "America's representative social institution," "an institutional expression of our way of life."

Let's recap: a constitutional amendment designed, ostensibly, to force American society to recognize the humanity of Blacks, became a weapon for elevating profit motives above civil rights. Meanwhile, Blacks were not enfranchised but dehumanized in the eyes of the law, as courts rolled back whatever meager gains they had won since the abolition of slavery. And the pitting of corporate rights against human rights helped stifle the nascent social movements seeking to protect the poor and disenfranchised from the consequences of rampant industrialization. And that brings us to January 2010. After decades of distorting the concept of citizenship, the idea of the corporation as a legal "person" has enabled the Roberts Court to undermine one of the fundamental institutions of participatory democracy. It's true that the edifice of the electorate remains intact: a corporate board can't, after all, cast a vote. It can only render yours irrelevant, with greater ease than ever before. More than a century after the 14th amendment promised to foster Black people's political representation, it's now become another instrument for silencing the unheard. Funny how that happens. Image: Bob and Carol Simpson