By What Authority:

May 1998

By What Authority

We Gave our Sovereignty to Big Biz

Time for capital punishment for corporations?

Mary Zepernick (May 1998)

(originally published in the Cape Cod Times)

"The judgment sought against the defendant is one of corporate death. The state which created, asks us to destroy, and the penalty invoked represents the extreme rigor of the law. The life of a corporation is, indeed, less than that of the humblest citizen ..." Thus spake New York State's highest court in its 1890 unanimous finding against the North River Sugar Refining Corporation: charter revoked; out of business; capital punishment for corporations.

When I studied U.S. history, no text or teacher mentioned such decisions, much less how common they were during our first hundred years or so. As a young teacher myself, I knew nothing of legislation, attorneys general and judges calling corporations to answer to "quo warranto" &mdash by what authority has this or that railroad or utility or banking or turnpike corporation violated its charter, and failed in the performance of its corporate duties," to quote the North River judgment. When declared "ultra vires," beyond their authority, corporations frequently found their charters amended or revoked.

However, the New York State revocation was one of the last, coming just four years after the U.S. Supreme Court declared corporations "natural persons" under the law. With so-called personhood came constitutional rights, accelerating the "legal" erosion of our sovereignty. Increasingly over the past century, "we the people" have become subordinate to the entities created to do our business. When it comes to defining and enforcing the conditions of corporate existence, human beings have been declared ultra vires.

Take Massachusetts. Its first chartered private corporation was the Massachusetts Bank, incorporated in 1782 by a special act of the state Legislature, according to Neil Benman in his research for the Program on Corporations, Law and Democracy. The bank's charter limited its authorized capital and described how it should be governed, among other provisions, and the legislature reserved the right to examine bank affairs, including its books.

Today our elected representatives give tax breaks to corporations in hopes that they won't flit off to greener pastures. Along with citizens of the other 49, we've lost our sovereignty in the 50-state sweepstakes to curry corporate favor.

We've come a long way, baby &mdash in the wrong direction. To understand how far, picture "Big Tobacco," as the media corporations have personified and nicknamed the mega-corporations that produce smoking materials. Despite a trail of corporate records withheld, testimony perjured and additives designed to addict, our public officials from the president on down continue to dicker and bicker with Big T, all the while pocketing "his" campaign contributions (protected by the Supreme Court as equivalent to political speech).

The issue is not simply corporate harms to our bodies, but to our body politic; not only corporate behavior but the very relationship between a supposedly sovereign citizenry and its institutions. Commentators and politicians huff and puff (well perhaps only huff) about good ol' boy Big T, but they're all bluff. Which of them asks "Where do the people's representatives get off, negotiating with corporations instead of defining and enforcing the limits corporate entities must observe? For that matter, who even knows about the original relationship in this country between citizens and our legal fictions? Actually, corporate lawyers do, since their job is to protect the power, authority and wealth that rightly belongs to real human beings.

Consider these typical headlines: "Cigarette maker will cooperate with probe" (kinda makes you want to write Big T a thank-you note); or "Tobacco ads turn ire on Congress" (look out, Big T's angry).

Speaking of ads, the average U.S. resident reportedly sees an average of 21,000 a year. Corporate advertising is not only protected by the First Amendment, but deductible from the paltry taxes corporations pay. Hence the grotesquerie of tobacco corporations threatening to sue Uncle Sam over restrictions on their advertising, while we taxpayers subsidize the colonization of our minds, and our children's.

Consumers are free to make decisions within the increasingly restricted options offered by banking, insurance, media, health care, manufacturing, food-producing, transportation, and communications corporations.

Citizens are free to hold democratic conversations about our sovereignty, about who sets the limits.

Long live the humblest citizen!