Occupy Santa Clara notes:
-Occupy is a movement against private corporations or personhood ones
-“I’ll believe corporations are people when Texas executes one of them.”
-Corporations in texas and across the country are recognized as legal persons make the process of dissolving them far easier and less costly than it would be
- corporate personhood allows business firms to enter into contracts, to sue and be sued, to hire and fire workers, to own other corporations, and, most notoriously, to engage in free speech.
-UCLA law professor Stephen Bainbridge lambasted occupy's "moronic movement against corporate personhood"
-Doug Henwood concerns about size of the personhood and reminds Occupy activists that after all big corporations build computers and fast trains and thus represent economic progress
- Corporations as persons reaches back as far as 1886 decision of the U.S
- . Once the concept itself is clarified it is more straightforward to consider its impact on society at large
- Marx, the integument of corporate personality has been burst asunder by the reality of modern capitalist production, thus, the knell of corporate personality sounds
- South of San Francisco became known around the globe as Silicon Valley, it was a conflict between railroad “robber barons” like Leland Stanford and Charles Crocker and legions of struggling small farmers, mixed in with some opportunistic land swindlers, looking to get by after the end of the Civil War.
- Historian of the American West Richard Maxwell Brown noting Marx's paid much attention and interest in California events at the time
- On may 11 1880 two groups confronted each other : one a small group made up of two land buyers armed with a shotgun and a court order, accompanied by a U.S. marshal and a notorious Southern Pacific Railroad employee, and the other a larger informal “militia” of local homesteaders
- The homesteaders were angered that the Railroad was not following through on its obvious promise to sell them good title to their land at relatively low prices.
- the conflict was waged also in nearby urban courthouses
- the federal judge the same one with the eviction order, his name is Lorenzo Sawyer and he accused the surviving farmers of resisting the order.
-Field had a detailed defence of the application of the fourteenth amendment to corporation
- Sawyer was a shareholder in the Railroad and socially close to Crocker and Stanford
- both Field and Sawyer were close friends to Railroad's legal counsel
- Field became the court's chief justice
- Terry was an advocate of the interests of the Mussel Slough homesteaders
- Terry is against Field but he got killed later but one of Field's bodyguards
- Field undertook an ambitious national agenda : first ; to use the new fourteenth amendment's limits on state powers to protect not just freed slaves but corporations the emerging institutional form for a new era of private as opposed to state-led capitalism; and, second, to build on the success of that effort by undertaking a campaign for the presidency itself
- farmers and workers blocked his road to power in the California Democratic Party
-Field sided with the majority when it applied the 14th amendment against protective state labor laws and yet declined to use the same amendment to undo Jim Crow laws on railways
-Morton Horwitz argued that the theory the Court implicitly adopted articulated more fully by Field in his circuit court opinion was not the theory of corporate personality that we recognize today.
-. In fact, Horwitz contended, the Supreme Court of 1886 was “still actively suspicious of corporate power and the emergence of concentrated enterprise” and thus would have been hostile to a theory of the corporation as a distinct and natural entity standing apart from its shareholders.
-the southern pacific Railroad had hundreds of shareholders and bondholders, thousands of employees
-Justice Stephen Field was more powerful than any justice at that time
- Horwitz decision had always held as one of the prominent symbols of the subservience of the Supreme court during the Gilded Age to the interests of big businesses
- Horwitz's work is important : three of the four critical stages : 1- the "artificial being" approach that dominated until Santa Clara. 2- the short- lived " partnership" or “aggregate” approach of Justice Field in his circuit opinion, adopted without comment by his brethren. 3- the post–Santa Claratriumph in the early decades of the twentieth century of the modern “natural entity” theory that gave more robust recognition to corporations as legal persons distinct from the aggregate of their individual shareholders
- If Field’s approach did not prevail then it would have remained difficult for corporations to resist the state’s use of police powers to regulate these entities as it saw fit
-The aggregate theory, therefore, viewed the corporation as protected by the Fourteenth Amendment not so much because the corporation itself was a person but because naturalpersons, its shareholders, made up the corporation
-Once freed of the shackles of a state charter, once viewed as private and even democratic associations of individuals, corporations were free from the attempts of those same states to impose “discriminatory” regulations on them
- From there it was a much easier step to recognizing these free associations as entities in their own right, which today we would understand as elements of civil society, independent of the state
-it was a necessary step for courts as well, because they had to deal with less material , less property-centered claims
- the early 1980s the natural entity version of the corporation that was critical to New Dealers was under sustained attack
- The corporation, the agency theorists argued, was nothing more than a “nexus” of contractual relations among the various contributors of inputs to the entity including capital, technology and labor
- There was no problem of corporate power as long as those markets were kept competitive
- these markets might lose competitive fervor was, indeed, a problem for political economy but it was not a fundamental problem for corporate theory
- Justice Field took the corporation out of the hands of the state and put it in the hands of freely associated capitalist entrepreneurs
-.” The “law and economics" school returned the corporation to freely associating entrepreneurs, properly disciplined by surrounding vigorous markets for capital, corporate control, and managerial talent
- The transition from Santa Clara Valley to Silicon Valley could now be completed
-Lewis Powell cited Santa Clara for the proposition that the Court had long ago recognized corporations as persons and that simply because the speech in question comes from a corporation does not alter the Constitution’s protection of it under the Fourteenth Amendment
-This is no less clever an approach than what Justice Field attempted when he tried to distinguish between the wealthy investors in the Southern Pacific Railroad and the corporation itself. Neither decision really fooled anyone
- that there could be no turning back the clock to the era when corporations were “creatures of the State” with “only those rights granted them by the State.”
- an attempt to dismiss the dissent of Chief Justice William Rehnquist, who made a valiant if lonely attempt to restore what Horwitz might call “old conservatism” to the Court by reviving the artificial entity theory of the corporation, where the business firm is viewed solely as a creation of the state and thus subject to that state’s regulatory authority.
- Justice White noted that mechanisms inside the corporation had centralized power such that one could no longer find a reliable link between the corporation and the desires of its individual shareholders
- the natural person element of the Field aggregation theory had indeed disappeared
- White argued, that the aggregation theory is “not fungible with communications emanating from individuals” and thus must be examined carefully for the potential “threat” it poses to the “functioning of free society.”
- Citizens United, the case was in essence a replay of Bellotti.
- The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”
-.” The homeless and the unemployed, in other words, are as free to amass money in the marketplace
- It is true, of course, that not all corporations are as wealthy and powerful as Exxon
-. The Occupy movement has performed a valuable service in putting that debate back on the table for public consideration
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