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<<Morton Mintz: The Senate Should Ask John Roberts If He Thinks
Corporations Are Persons Under the 14th Amendment
Morton Mintz, at the website of Nieman Watchdog (7-27-05): [Morton Mintz (Nieman '64) and a Washington Post reporter for decades, is a senior adviser to the Nieman Watchdog project.] Judge Robert H. Bork, President Reagan's failed Supreme Court nominee, famously denounced Roe v. Wade as "a wholly unjustified usurpation of state legislative authority." For the moment, at least, let's assume he was correct. Then what about the Court's pronouncement more than a century ago that a private corporation—a paper entity that cannot wear a uniform, bleed, vote, be sent to prison or the death chamber, and that may give tens of millions of dollars to politicians during a possible lifespan of hundreds of years—is a "person" that cannot be denied "the equal protection of the laws"? Was that pronouncement also "a wholly unjustified usurpation of state legislative authority"? These would surely be appropriate and challenging questions for Judge John G. Roberts, Jr., President Bush's Supreme Court nominee, when he comes before the Senate Judiciary Committee. But don't count on any such questions being asked. That's because Democratic and Republican committee members alike, sensitized to corporate power, have for decades avoided putting them to any one of hundreds of judicial nominees. The Fourteenth Amendment to the Constitution was ratified in 1868, soon after the end of the Civil War. It declares that no state shall deprive "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The "person" Congress and the ratifying states had in mind—the human being in need of equal protection, particularly in the states of the old Confederacy—was the newly-freed slave. Nothing in either the text or the legislative history of the Amendment suggests otherwise. The radical change that transformed the soulless entity into a person began in California, where, understandably, state law allowed taxation of the property of a corporation at a higher rate than the property of a living, breathing human. Santa Clara County taxed the property of the Southern Pacific Railroad differently. Southern Pacific fought back, and the dispute evolved into a case that reached the Supreme Court. Chief Justice Morrison R. Waite and all of the Associate Justices chose not even to hear oral argument. Instead, in 1886—a mere 18 years after ratification of the Fourteenth Amendment—Waite simply announced: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Here is how the stunningly different befores-and-afters were summarized by Thom Hartmann, a Project Censored-award-winning, best-selling author, and the host of a nationally syndicated progressive daily radio talk show, at thomhartmann.com:
The late Justice Hugo L. Black was scathing about the Waite court's pronouncement. "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection," he wrote in a dissent in Connecticut General Life Insurance Co. v. Johnson (1938). He continued:
The contrast between the Court's handling of Santa Clara County v. Southern Pacific Railroad and its handling of Roe v. Wade nearly 90 years later is stark. The Roe justices were fully briefed. They heard oral argument. They long deliberated. In the end, they decided—among other things--that in the first trimester of pregnancy a fetus is not a "person" within the meaning of the Fourteenth Amendment. For purposes of Judge Roberts's appearance before Senate Judiciary, it doesn't matter whether either Santa Clara or Roe was rightly or wrongly decided. What does matter is whether he will be asked not only whether Santa Clara was "a wholly unjustified usurpation of state legislative authority," but additional questions such as these: § Can you cite anything in the original intent of the Framers of the Fourteenth Amendment, in its language, or in its history to justify Chief Justice Waite's proclamation that a corporation is a person owed the equal protection of the laws? § Was Chief Justice Waite's proclamation radical? § The corporation is owned by its shareholders but is at the same time a legal person. Is the corporation then a slave, in violation of the Thirteenth Amendment's prohibition of slavery? § Corporations have freedom of speech. Do they also have freedom of religion? Could you explain why people who call themselves conservatives mention Santa Clara rarely if ever? On Wed, 2 Nov 2005 19:02:35 -0700 [EMAIL PROTECTED] writes:
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