The true irony of the Supreme Court’s decision to grant corporate personhood in Santa Clara can only be fully appreciated by examining the Court’s use of the Fourteenth Amendment
on behalf of the human beings it was intended to protect as compared to the artificial corporate persons the Amendment was not intended to protect. Between 1868 and 1911, only twenty-eight of the 604 Supreme Court rulings involving the Fourteenth Amendment dealt specifically with the protection of the rights of African Americans. In those twenty-eight cases, the Court upheld or protected African Americans’ rights only six times.175
Aljalian considers a slightly broader time span and finds that “of the cases in the [Supreme] Court in which the Fourteenth
Amendment was applied during the first fifty years after its adoption, less than one-half of one per cent [had] invoked it in protection of the negro race.”176
The statistics suggest a shift in focus of the Fourteenth Amendment’s application. They also give credence to Charles Collins’ remark that “it is not the negro, but accumulated and organized capital, which now looks to the Fourteenth Amendment for protection from state activity.”177 These statistics suggest a social and judicial preoccupation with matters of industry and capital, and a deprioritization of human rights consistent with the racialized values and practices of the triangle trade. The prioritization of economic value over human life did not end
174
Eagleton, Ideology 29. 175
Doug McAdam, Political Process and the Development of Black Insurgency: 1930-1970 (Chicago: University of Chicago Press, 1982).
176
Aljalian 498; see also Hartmann 24 for more on the subject. 177
with the triangle trade or with the abolition of slavery; rather, it lived on in politics, culture, law, and almost all areas of Western society. For this reason, the Court’s seemingly preferential treatment of artificial persons can be understood as both a symptom of the historical moment in which it occurred and as an example of the kinds of moral failures that can occur when the profit motive is privileged ideologically.
The period between 1868 and 1911 was a particularly tumultuous time in American history. Dewey refers to the turn-of-the-century as an “individualistic” era, mostly preoccupied with the rights of private property, contracts, and other matters of business.178 These priorities are consistent with the Court’s ruling in Santa Clara and its tendency to hear more Fourteenth Amendment cases pertaining to corporate rights than to human rights. Existing racial problems were compounded by waves of European immigrants, further complicating notions of what it meant to be an “American” who legitimately deserved rights to full citizenship. It also presented challenges in terms of how new forms of work and labor would be organized.
As the U.S. economy continued its transition from an agricultural to industrial focus, an explosion of economic opportunities arose that would likely not have taken place as quickly or effectively without black labor, slave as well as forced.179 Nevertheless, even as corporations benefited from the Fourteenth Amendment, they also perpetuated a race-based division of labor that excluded blacks from the higher status, more lucrative positions that emerged with the economic watershed of the Industrial Revolution.180 Despite the Fourteenth Amendment and its original intent, the racialized implications of the Supreme Court’s ruling in Santa Clara were
178
Dewey, “Corporate Legal Personality” 668. 179
See Blackmon; Sherry Cable and Tamara L. Mix, “Economic Imperatives and Race Relations: The Rise and Fall of the American Apartheid System,” Journal of Black Studies 34.2 (2003): 183-203. 180
that a law intended to help African Americans functioned to empower artificial corporate persons that as policy were actively engaged in oppressing African Americans and profiting from their exploitation. In many ways, the modern corporate form was built on, and thrived off of, the socially constructed racial burden of blackness. The following account offered by Harris illustrates some of the ramifications of racial exclusion:
Every day my grandmother rose from her bed in her house in a black enclave on the south side of Chicago, sent her children off to a black school, boarded a bus full of black passengers, and rode to work. No one at her job ever asked if she was black; the question was unthinkable. By virtue of the employment practices of the ‘fine establishment’ in which she worked, she could not have been.181
These conditions of exclusion persisted through the Civil Rights movement, which led to Affirmative Action policies, which led to diversity programs, and the inclusion initiatives continue today. The effectiveness of these efforts remains debatable given the underwhelming number of African Americans employed by corporations today – an entity that their ancestors’ labor directly or indirectly helped build through slavery, forced labor, or other exploitative economic and labor practices.
This contemporary racial inequality in corporate America, stemming from our nation’s history, is exacerbated at corporate leadership levels. As Allison Linn noted, “The boards of directors of Fortune 500 companies still look pretty much how you’d expect: primarily male, and primarily white,” with white men holding approximately 77 percent of the board seats in the
181
nation’s largest companies in 2004.182
Not until 2009 was the first black woman named CEO of a Fortune 500 company, bringing the total number of black CEOs in Fortune 500 companies to four.183 Similarly, a recent study has shown how the leadership landscape in the corporate public relations field is more than 90 percent white.184
Incorporating a critical race theory perspective within this analysis of Santa Clara and the evolution of corporate personhood facilitates an understanding of the incipient and ongoing role race has played in the rise of corporate personhood and power. In short, when we consider the role of race, we can see how corporations flourished while human beings languished under the court’s adjudication of Fourteenth Amendment personhood cases at the turn of the twentieth century. We also see how these historical happenings have had long-lasting effects.
Considering the triangle trade as context and precursor to the Santa Clara ruling also allows us to see how ideology can play a significant role in presumably objective, impartial judicial discourse. In my view, it is unlikely that the Supreme Court could have been able to reasonably conceive of using the Fourteenth Amendment to enfranchise and protect artificial, contractual entities absent an ideological orientation that prioritized economic motives above human needs. A widely accepted ideological orientation that privileges economic desires above human rights makes it entirely conceivable for property and things to be treated as persons, and
182
Allison Linn, “Minorities lose ground in big corporate boardrooms.” Today.com 3 May 2011, 3 Dec 2012 <http://lifeinc.today.com/_news/2011/05/03/6570819-updated-minorities-lose-ground-in-big- corporate-boardrooms?lite>.
183
See Daryl C. Hannah, “First Black-Woman Fortune 500 CEO,” Diversity, Inc. 26 May 2009, 28 Nov 2012 <http://diversity.nbcuni.com/in-the-news/first-black-woman-fortune-500-ceo.php>.
184
Nneka Logan, “The White Leader Prototype: A Critical Analysis of Race in Public Relations,” Journal of Public Relations Research, 23.4 (2011): 442-447.
for persons to be treated as things and property. This ideological work was performed in large part by the triangle trade, which initiated a particular way of thinking about the relations between human beings, economic aspirations, race, and property.
By destabilizing traditional notions of personhood through the reification of Africans as property, the triangle trade opened the door for various counter-intuitive and non-traditional ideas of personhood to emerge. This made it conceptually possible to transform people into property and therefore property into people. This latter transformation is exactly what happened in Santa Clara; this is why I argue that the Supreme Court’s landmark ruling can and should be
understood as an extension of the same ideological trajectory that emerged in the triangle trade. In fact, like the triangle trade, the Santa Clara ruling introduced its own process of reification: while the triangle trade assigned a property value to people, in Santa Clara, theSupreme Court assigned human rights to property in the corporate form, giving birth to a new person, “the quintessential economic man,” as Mark aptly describes it.
The Court’s ruling in Santa Clara also lends credence to the arguments of critical legal scholars and rhetoricians who assert that although a law may be intended for one purpose, it may well be used to achieve a different goal altogether.185 The Supreme Court’s rhetorical moves in
Santa Clara awarded wealthy business owners a tremendous expansion of privileges. Even if that was not the Court’s intention, it was the outcome.
185
See Marouf Hasian, Jr., “Critical Legal Rhetorics: The Theory and Practice of Law in a Postmodern World,” The Southern Communication Journal 60.1 (1994): 44-56; Eileen A. Scallen, “Judgment, Justification and Junctions in Rhetorical Criticism of Legal Texts,” The Southern Communication Journal 60.1 (1994): 68-74; William Lewis, “Of Innocence, Exclusion, and the Burning of Flags: The Romantic Realism of the Law,” The Southern Communication Journal 60.1 (1994): 4-21; James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison, WI: The University of Wisconsin Press, 1985); Lewis H. LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (University Park, PA: The Pennsylvania State University Press, 1995).
This trend of serving the interests of big business continued after Santa Clara.
Corporations successfully used the Fourteenth Amendment to avoid health and safety
regulations186 and child labor laws as well as other precautions aimed at protecting all American workers because those regulations might have curtailed the ability to maximize productivity and profits.
The pre- and post-Santa Clara eras represented a shift in the entire social order, such that contractual relations in the form of corporations would become similar to human beings.
According to Mark, “The transformation of the private law of corporations from 1819 to the 1920s is best described as a move from a circumstance in which a corporation could do only those things specifically allowed by its charter to one in which a corporation could do anything not specifically prohibited to it.”187 Since then, corporations have used their personhood to secure even more Constitutional rights, including the right to free speech, protection from search and seizure, and protection against double jeopardy under the Fifth Amendment. These
privileges have directly contributed to the transformation of the business organization into a “super person” that can do pretty much anything that it can afford to do.
3.5 Santa Clara’s Implications: The Ontological Conflation of Natural and Artificial