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Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights

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America's Founding Fathers and early Presidents warned that the success of the new republic depended on keeping corporations in check (p. 5). In fact, Thomas Jefferson believed that big government, organized religion, and commercial monopolies (the "pseudo aristoi") posed the biggest threats to human rights (pp. 69-70). In this sobering history of corporate America, Thom Hartmann demonstrates rather convincingly that inequalities of corporate regulation, taxes, responsibility for crime, privacy, wealth, trade, influence and access to natural resources are depriving us of "Life, Liberty, and the pursuit of Happiness," the very rights that constitute the heart and soul of the American dream.

Hartmann draws parallels between the Boston Tea Party in 1773 and the more recent WTO protests. While most of us were taught that the colonists were upset about "taxation without representation," Hartmann asserts that the colonists were, in fact, protesting "government sponsorship of one corporation over all competitors, plain and simple" (p. 60). He also examines how corporations have used the Fourteenth Amendment--originally enacted to grant rights to freed slaves--to further their own economic interests to the detriment of our individual interests guaranteed under the Bill of Rights. Because of the notion that corporations have the same rights as persons, Hartmann asserts, the world is becoming more unequal everyday (p. 154). Painting a devastating picture of the state of our union, for the most part, Hartmann succeeds in ending his book with a rallying call for "we, the people," to reclaim our lives from corporate America, and to begin living the American dream once again, rather than the corporate dream that has been imposed upon us.

Critical and well-researched, this is a book that will no doubt be labeled as "radical" by corporate America, and like David Korten's WHEN CORPORATIONS RULE THE WORLD (1995) and the more recent CASE AGAINST THE GLOBAL ECONOMY (1997), Thom Hartmann's UNEQUAL PROTECTION is a book corporate America is hoping you won't read.

G. Merritt

Hartmann's analysis of the roots of corporate power is essential reading. He undermines the policies that have protected corporations for over a century. Legally protected today, corporations were long subject to general suspicion. Government charters to operate a business contained many constraining clauses that are now missing. How and why did this change come about? Should government constraints be restored, and if so, how would be brought about? Hartmann presents the history, issues and solutions to the growing corporate takeover of the global commons.

He opens by reminding us that the "commons" once represented a village pasture, shared by all. In modern times he argues the same concept embraces the entire planet. The sharing implies common sense be applied to its use. We are beginning to understand our planet is "the commons" for all humanity. Every human has some rights to that commons, but shares a responsibility for its well being. That set of rights and responsibilities is set by the community as a whole, not by any one individual. The community concept, however, is based on the idea that its members are essentially equal. The corporation, due to its amorphous structure and unique powers has gone beyond community ideals.

The history of corporate power rests on continued attempts to upgrade an "artificial" entity to a "natural" one. Hartmann traces the erosion of that ideal through this book. An early chip was taken when Queen Elizabeth I granted Francis Drake "freedom from liabilitie" to go pirating. It was an omen for the future. Although the Framers of the Constitution of the United States were vociferous in their resistance to corporations, events pushed their ideals aside. In a rapidly developing economy and to confront European competion, corporations arose and grew. As they grew, they sought not only protection from State taxation, they sought to further their ends by political action, something nearly all governments restrained. After many tries, they seemed to have accomplished it in 1889 during a court case over the collection of property taxes.

Hartmann details the events surrounding the case, pointing out that the corporate "victory" of achieving "personhood" is spurious. It was not part of the decision and added as a post judgement note. He suggests that railway lawyer Stephen J. Field likely influenced the writing of the notes by court reporter John C.B. Davis. The victory for business interests virtually turned the 14th Amendment to the Constitution on its head. Business now had the same "rights" as any naturally born human - privacy, investment, political activity and right to trial. Where a state issuing a corporate charter previously had the right to withdraw it for improper activity, a corporate existence was now sacrosanct. Given the vague nature of the corporation, "improper behaviour" could punish individuals, but not the corporation's
existence. Hartmann explains how this condition has led corporations to invade the global "commons" with impunity, ravaging nature to acquire resources and markets.

People often ask "if corporate dominance is so bad, what will you replace it with?" Hartmann states "the suggestion i'm putting forth in this book is to try democracy." The solution is simple enough - a return to Jeffersonian principles. That doesn't mean a regression to an agrarian society. It means, instead, a restoration of democratic practices - the raising of humans to their natural place of dominance over artificial entities. He encourages local communities to begin redefining their laws to reflect the concept that corporate organizations are not people. Once that precedent is established, the democratic ideal can be restored by revising laws and constitutions up through the political hierarchy. From communities through the states to the national government. He stresses that while there will certainly be resistance and scare tactics, enough popular pressure can restore those lost ideals.

To say the bookshelves are flooded with political fodder these days is an understatement. Some blame the state of the nation on "Stupid White Men", others talk about "Winning the War of Liberty over Liberalism". No matter where you look or what you read, the mudslinging is intense. At times, these authors make EMINEM's rap "battles" with gangsters in the movie "8 Mile" look like an episode of the Mickey Mouse Club.

Unequal Protection, however, is not one of these books. It is an historical documentary of sorts that traces the history of the corporation and its role in society from the East India Company, through the FORTUNE 500 of today. It examines the people, actions, beliefs, and mistakes that have led to the extreme concentration of power and wealth among a select few global corporations.

While laying the foundation for the future of the United States, keeping power in the hands of the people and preventing institutions similar to the East India Company from gaining unlimited economic and political power was one of the key drivers. For many years corporations were kept relatively well in check and responsible to the people and governments that granted them the right to exist.

The passage of the 14th amendment, intended to give all persons (not corporations) equal rights, combined with a ruling in single court case that has been mistakenly interpreted to define corporations as "persons" like you and me opened the door to all kinds of crazy claims by corporations.

Subsequent claims and court rulings have directly and indirectly granted corporations virtually unbridled power through creative legislation and enabled some to operate with no consequences whatsoever for damaging and deadly actions.

"Unequal Protection" also discusses of NAFTA, which appears to have granted corporations the authority to override what people and sovereign nations have determined to be in their own best interest. This may include protecting local jobs and economies, banning Frankenfoods with the potential to disrupt and/or destroy the food supply and outlawing toxic additives or chemicals known to have adverse effects on public health and the environment.

The pursuit of profit is a necessary and healthy part of a democracy and free market economy. However, when it is the exclusive focus, to the detriment of the environment, the commons, and the health and well being of the people that make up societies and corporations, its time to take back the reigns. When corporations factor in the human and environmental costs associated with doing business and can be held accountable for their actions will real change begin.

Through the acceptance of corporations as persons in the legal sense, we've come full circle to facilitate and reward the types of actions and behaviors of the East India Company that this country originally fought so hard to get away from.

Unequal Protection is an outstanding work. It's history with a perspective, but does not in any way sink to the political mudslinging ways of other books that may be classified in a similar category.

Margaret Mead's "Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has..." has proven right many times. Hartmann's UNEQUAL PROTECTION is a great case study: here, it's one person, a court reporter, who changed history with a set of "headnotes". Thom Hartmann discusses the case of J. C. Bancroft Davis and his impact on globalization today in his fascinating study on the rise of corporate dominance around the world. At the same time, and in the spirit of Margaret Mead, he also calls for grassroots and community action.

Hartmann's starting point is the question: How did corporations manage to become persons before the law with, at least, the same rights as human beings? How did corporations change from being "virtual entities", meaning that they were subject to the controls and supervision by local governments (and humans), into becoming legal entities equal to citizens but without the restrictions and responsibilities placed on people. How have "multinational corporations become the tail that wags the dogs of governments of the world"? Well it's the result of a US Supreme Court Decision regarding the Fourteenth Amendment. Or is it?

Hartmann delves deep into US Constitutional history to set the framework in which the fundamental issue of corporate personhood has to be understood. He traces the concept to its roots in 1886, and to court reporter Davis, the official recorder for the Supreme Court Case: The Southern Pacific Railroad vs. the Santa Clara County. Corporate personhood was introduced during this case, but not, as constitutional and corporate lawyers have assumed for some 120 years, by the Court - but by David in the headnotes. That meant it had no legal basis whatsoever. The evidence found by Hartmann confirmed that the Supreme Court specifically decided NOT to rule on the issue of corporate personhood.

Hartmann explores possible reasons why this application of the Fourteenth Amendment became so popular with corporate lawyers. He also states categorically that "he is not looking for culprits but to point out a flaw in the social system."

The impact of the misinterpretation of the Supreme Court decision since 1886 has been fundamental and has reached far beyond the United States. Hartmann traces American history from "the birth of American democracy through the birth of corporate personhood" ending with the rise of transnational corporations and their role in world trade. He reflects on the emerging conflicts between government and corporations, citing no lesser authority than President Thomas Jefferson and his conviction that "freedom from monopolies are one of the fundamental human rights".

Hartmann devotes a chapter to the analysis of the "unequal consequences" on all major aspects of civil rights and responsibilities: protection from risk, taxes, wealth, trade and (political) influence, to list a selection. He concludes on a more positive note with a call to all concerned to redress the power balance and to restore the sharing of responsibility for the Global Commons. This book should be essential reading for all interested in and concerned in our modern trade systems, whether in the US, in other countries or globally. This well researched study is a dramatic read and leaves the reader with ample food for thought.

As a result of a legal error in 1886 in the Santa Clara vs Southern Pacific Railroad case in the U.S, corporations were mistakenly granted legal `personhood' under the Fourteenth amendment. Hartmann charts the results of this legal error and traces the rise of corporate power and its detrimental effects on human rights, the environment and democracy itself. Showing how corporations, some now larger (in dollar terms) than some countries, now have greater rights than the humans who created them, and how through political lobbying, corporate campaign funding and a corporate controlled media, this has ...... the democratic ideals envisaged by Founding Fathers of the US Constitution.

A fascinating and disturbing history of how the very ideals of freedom, human rights for all and `all are created equal' have been consistently and routinely eroded by the effects of unchecked capitalism. In the wake of Enron, WorldCom and the rest one can only wonder with some amount of trepidation where this is leading us, as this undoubtedly affects us all. Hartmann however, as in his previous works, doesn't just criticise from the sidelines, but leaves blame aside and suggests practical suggestions as to how to rebalance this costly error. Highly recommended.

"Unequal Protection" begins by citing the depredations of the trans-national corporation, subsidized and supported by the British Monarchy, known as the East India Company, as the primary reason for the American War of Independence. The Boston Tea Party was intended to prevent East India tea from being sold at subsidized low prices in unfair, monopolistic, competition with Yankee traders.

Once independence was won, our founding fathers, most notably Jefferson and Madison, joined by Adams and Hamilton, set about creating a set of laws, our Constitution, that would make certain that corporations would never again gain such power over the lives of people.

The book describes the accidents and collusions of history that have resulted in the establishment of "personhood" for corporations, so they might enjoy the Constitutional protections intended for individuals, while wielding the power of great wealth and almost unlimited resources.

The author, Thom Hartman, walks the reader through history with a lively, penetrating exposition of the thinking that went into the attempt to control corporate power and subsequent machinations that took control from the hands of government -- leaving giant transnational corporations in a position to make life and death decisions for we, the people and the planet.

Once you have read this book, you will realize why it is that we must start by re-establishing the fundamental intentions of our Constitution in order to take our democracy back.

-- Reviewed by Woody Powell ...

What if a corporation was polluting, but when a government agency wanted to check on the violation, the corporation claimed itself to be a person and that all persons have rights of privacy and freedom from governmental snooping? What if a community wanted to support local businesses and charged a chain store a larger licensing fee, and the chain store claimed it was a person who must not be discriminated against? What if when limits were set on campaign contributions by a corporation, the corporation said that it was a person and as a person it had freedom of expression (and thereby donation)? These are not "what ifs." Corporations are regarded as people, but _Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights_ (Rodale) by Thom Hartmann shows that this is literally a legal fiction, and one based on a serious misinterpretation of the law. In addition, he demonstrates that the interpretation of corporate personhood has had ill effects for citizens, the nation, and the world.

Corporations originally had very restricted rights; Jefferson, for instance, worried about monopolies taking over the government. When corporations (starting with the railroads) became powerful in the Industrial Revolution, they were eager to be granted human rights. They especially desired to take advantage of the Fourteenth Amendment, which had been passed to grant full constitutional protection to emancipated slaves. In a curious Supreme Court case in 1886, there was a commentary written to say that a railroad was a corporate person. This "headnote" was not law and not precedent, but in true irony, the amendment to protect former slaves has been hijacked to promote corporate personhood. It used to be taken for granted that communities could regulate corporations, but now that they are persons, they are able to dodge many such regulations.

Hartmann is not a lawyer, but his research and consultation with lawyers have made his book clear and convincing. His book lists many assaults on good government, the environment, and human rights overseas that corporations have been able to sustain because they have been able to insist upon their own rights as humans. A sustained legal attack on the fraud of corporate personhood is what Hartmann would like to see, for the purpose of decreasing corporate influence in politics and restoring the power of community and state government. He proposes a grass roots movement to achieve this, and makes the results sound well-reasoned and attractive. He knows the powers which corporations have, and what he is up against, but his book is a manifesto for change. If you have been concerned that corporations have too much power, you will find it invaluable.

Since the advent of science fiction, for more than 100 years, writers have predicted that man would invent some kind of "thing" that would turn on humanity, enslaving or killing hundreds of thousands or millions, wasting the planet, or terraforming to meet the needs of the invented "things." That's what the movie series Terminator is about, for example.

Some stories propose the "thing" to be a robot, or computer, or androids, or biological concoctions of some mad scientist. The truth is, the "thing" exists and has been doing all of the things threatened above. The "thing" was invented over 100 years ago, and it keeps getting stronger, hurting more people.

But the "thing" is not what the futurists predicted. The "thing" is the big corporation, which 116 years ago was granted personhood by what seems to me to have been malicious error on the part of the supreme court of the US. Thom Hartmann tells an extraordinary story, starting with the colonial era, about how big business has caused havoc and suffering among humanity. For example, the Boston Tea Part was aimed at a megacorporation, not the British Government.

The book tells how human rights, created for humans, have been stolen by corporations and used to corrupt the government created of by and for the people. Corporate personhood is the prime weapon they wield to manipulate laws that should be protecting real people.

In Jurassic Park, the cloned dinosaurs got out of control when a "theoretical" lock on their breeding failed. Humanity lost control of corporations when a former Railroad company president took a job as a court reporter for the Supreme Court. He added a note on a case that said that corporations were persons and entitled to rights under the 14th amendment. The truth is that the justices of the court explicitly avoided a ruling on that issue. Since then, cases have been based on that "plant" court reporter's sabotage of the Justices actual ruling.

He wrote the book before the Enron and Tyco and Worldcom horrors reached the news, but the book does an amazing job of explaining how these were possible. Most important, the book is a call to action with solutions. Bush doesn't have the answers, Greenspan has cute terms, but no answers. Hartmann's book is a powerful read about a monster behemoth invented by man. Yes, it is a horror story that is true. But at least it opens up the door to discussion about how corporations can cause the massive levels of death, enslavement, human suffering and ecological disaster that is going on right now.

Hartmann actually includes model legislative verbiage that can be used at the state level to reign in out-of-control corporations. For this alone, the book is worth the investment. But, like Thom's other books, Prophet's Way, and Last Hours of Ancient Sunlight, the book is written so it rivets your attention in a page-turning way. if you are passionate about making the world a better place, this book will whet your passion, and give you some focus and concrete strategies for doing something to make a difference.

As I was composing this review of Unequal Protection, I got another whiff of the smelly state of corporate dominance in political affairs. The Supreme Court, in a 7-2 decision, today upheld the constitutionality of the Copyright Term Extension Act (1998) in the case of Eldred v. Ashcroft. The CTEA is a de facto CPIA: a corporate profits insurance act. How did corporations, who lobbied for the CTEA and won out over the rights of the public domain, get to have more rights than people? That is one key question that author Thom Hartmann addresses in his book, subtitled "The Rise of Corporate Dominance and the Theft of Human Rights."

In a democracy, writes Hartmann, the government protected the Commons - that which we all must share so that we all may enjoy it in perpetuity. The Commons used to include the air, the water, the forests and its wildlife, the land and its minerals, and even the electromagnetic spectrum (the airwaves). Government also authorized, through a charter, and regulated, through laws enacted with the public weal in mind, that legal agreement called the corporation. At the core of corporate power, writes Hartmann, lies the concept of the corporation as a person, with similar rights to those of natural persons (human beings), for whom the Constitution was presumably written, since nowhere in the document are corporations mentioned.

Indeed, for the first century of American history, no court has applied Constitutional rights to corporations. It wasn't until an 1886 case, Santa Clara County (CA) v. Southern Pacific Railroad (118 U.S. 394, 396, brought against a corporation for non-payment of a $25 fee!), that corporations were then assumed to be persons. Assumed, that is, not because the Court said they were, but because the headnote in the book recording the decision said they were. And although headnotes carry no legal weight, it was because of that erroneous assumption that courts ever since have been citing Santa Clara as establishing the "personhood" of corporations.

This was no small mistake, however. As Hartmann points out, corporations were quick to claim Constitution protection for free speech (First Amendment), privacy protection (Fourth Amendment), freedom from searches and seizures, double jeopardy, and self-incrimination for criminal wrongdoing (Fifth Amendment), and claims of anti-discrimination protections under the Fourteenth Amendment - the amendment that was presumably passed to free slaves. Not bad for a precedent that was "never voted by the public; never enacted by law; never stated by decision after arguments before the Supreme Court"! Indeed, in 1938, Justice Hugo Black noted, "Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty years after its adoption, less than one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations."

Hartmann takes pains to assure his readers that he is not anti-corporation, but he also thinks that the protections in law afforded to corporations since 1886 have been unequal, vis à vis those afforded to persons of the human kind. It took until 1920 for women to get voting rights, that is, the ability to affect the political process that every adult person enjoys. It took more than 100 years for human beings with African ancestry to be recognized as persons with the Civil Rights Act of 1965. The rights of workers to organize are only sporadically recognized even today.

Part of the unequal protection of which Hartmann writes is a function of corporate wealth which, in effect, buys favorable legislation. And part is the absurdity of legally equating corporate persons with natural persons:

<> natural persons have the strength of one; corporate persons can have the strength of millions;
<> natural persons are expected to operate under moral constraints; corporations are expected to make money;
<> natural persons eventually die; corporations are expected to outlive their founders, theoretically forever;
<> natural persons can be convicted of murder and executed; it is rare that a corporation convicted of causing death has its charter revoked;
<> natural persons pay taxes; most major corporations are net tax receivers;
<> natural persons reside in a country; corporations can reside in any country, or no country, and can change residence (usually to evade taxes) overnight;
<> natural persons can give money to politicians; corporations can give millions to politicians;
<> natural persons can't own other persons; corporations can own other corporations;
<> natural persons can vote; corporations can't vote - yet.

So what would happen if corporations were deprived of the "personhood" they were erroneously granted in the first place? Corporations might start acting like good citizens, looking out for the community in which they do business, obeying laws, paying taxes, keeping the environment clean, paying a living wage... Any number of good things can happen: corporations would have no rights, only privileges designated by the state in which they are chartered. And because they would exist at the pleasure of a government created by human beings, they would be held accountable to the public or lose their "life" (their charter). Right now, only unions, churches, unincorporated businesses, partnerships and even governments have privileges rather than corporate rights. Yet all seem to be thriving without being defined as "persons" under the law.

Unequal Protection includes a chapter (3) on the first anti-corporate protest: the Boston Tea Party, which was actually a protest against the (British) East India Company. The book concludes with a hopeful section on "Restoring Democracy as the Founders Imagined It." What Hartmann may be saying is that perhaps it's time that we get back a little power for the people.

This exceptional book will change the way you read the newspaper and understand world events. The author is not against big business or against corporations in general. In fact he claims to have started more than a dozen corporations himself. What he does is to meticulously detail how an 1886 Supreme Court decision's headnote gave modern corporations a tool that can too easily be abused. The subtitle "The Rise of Corporate Dominance and the Theft of Human Rights" is, if anything an under statement. The book is also a refreshing change from those who would attack corporations using exaggerationa and inflamatory rhetoric. Instead, the reader is treated to a methodical analysis of the evolution of corporate rights in America, from the founding of our country to modern times. Indeed, the first third of the book is focused on history, and a fascinating history that makes it hard to put the book down. Like many excellent works the strength of the book is not just in the new information it provides but in the author's ability to draw together disparate strands of things we already know and show their connections. The reader will often find themselves thinking "I never thought of things in that way." In the end I'm less optimistic than the author that the problem can be fixed, but I applaud his efforts.