How Things Change as Constitutional Rights Contract and Expand for People and Corporations
People often ask whether a proposed Seattle law such as Initiative 103 could actually impact the Supreme Court’s interpretation of corporate personhood and speech rights. Well, it wouldn’t be the first time a law from Washington State turned the tide of Supreme Court precedent and history in the process.
In 1935, a Wenatchee chambermaid Elsie Parrish and her husband sued the West Coast Hotel Co. for violating the state’s minimum wage laws (then a minimum of $14.50 per 48 hour week). The trial court initially ruled against the Parrishes based on Adkins v. Children‘s Hospital (1923) but was later reversed by the State Supreme Court and upheld by the United States Supreme Court (see West Coast Hotel Co. v. Parrish (1937)).
This decision marked the end of the Lochner Era, a forty year period of Supreme Court hostility to state and federal minimum wage laws and labor standards. In other words, Washington State’s minimum wage law shifted the tide of history and became a foundation on which Supreme Court support for wage laws would be built on. There’s fundamentally no reason Seattle’s Initiative 103 and related initiatives in Bellingham and Spokane can’t become a spark for turning the tide against corporate constitutional rights.
If passed by voters, Initiative 103’s restrictions on corporations would go into effect immediately. Corporations would not be able to spend money on elections in the city (nor advertising to city residents in state elections) and their lobbying would be restricted to public forums. It might be some time before these restrictions were challenged in court. For example, no drilling corporations have yet challenged Pittsburgh’s 2010 ban on fracking. The Rights for Nature granted by Initiative 103 would immediately grant the City of Seattle the legal right and power to restrict coal trains from passing through the city.
While Citizens United dealt with obscure federal campaign finance regulations. If the courts strike down parts of Initiative 103, they would be confronting the will of at least 305,000 Seattle voters which is explicitly spelled out in Section 6 of the ordinance:
By the adoption of this ordinance by this municipality, the people call for changes to state and federal law that would result in the recognition of a fundamental and inalienable right to community self- government throughout this State and the United States. The people also declare their support for changes to state and federal law that would eliminate certain corporate constitutional rights and powers that currently interfere with, and prevent, the exercise of local self- governance. Those rights and powers include corporate authority to preempt community lawmaking, corporate “rights” as “persons” under the State and federal constitutions, and corporate “rights” under other sections of the State and federal constitutions.
Expanding Rights for Americans
Beginning with its first ten amendments (known as The Bill of Rights), the Constitution has historically expanded rights for Americans. But these rights did not apply to slaves or women at the time. More amendments were needed over time to include these groups:
- The Thirteenth Amendment (1865) abolishes slavery.
- The Fourteenth Amendment (1868) extends Due Process and Equal Protection for all persons.
- The Fifteenth Amendment (1870) provides the right to vote to former slaves and minorities (but not women)
- The Nineteenth Amendment (1920) provides the right to vote for women.
- The Twenty-Sixth Amendment (1971) provides the right to vote for 18 year olds, reversing Oregon v. Mitchell (1970)
Expanding Rights for Corporations
While the word corporation never appears in the Constitution, the Supreme Court has been slowly expanding rights for corporations since the early 19th century. These are judge-made “Constitutional” rights granted to corporations through misguided interpretations of the law; some might call these activist judges. The modern Roberts Court has been the most radical.
- Dartmouth College v. Woodard (1819) – Granted Constitutional Contracts clause protections to Corporations for the first time.
- Santa Clara County v. Southern Pacific Railroad Company (1886) – Granted Constitutional rights for the first time to Corporations and created the concept of corporate personhood.
- Minneapolis & St. Louis Railroad Company v. Beckwith (1889) – Granted Due Process protections to corporations.
- Noble v. Union River Logging (1893) Grants Corporations Fifth Amendment protections of double jeopardy
- Hale v. Henkel (1906) - Grants Corporations Fourth Amendment protections for unreasonable search and seizure.
- First National Bank of Boston v. Bellotti (1978) – Grants First Amendment protections to corporations. Citizens United v. Federal Elections Commission (2010) expands these protections.
The Courts found personhood for corporations by leveraging the equal protection clause of the Fourteenth Amendment, building power on the successful work of abolitionists who fought against slavery:
“For much of the nation’s first century, corporations were seen as a means to an end, not unlike associations. They were ‘chartered,’ or called into existence, by the states, and their charters could be revoked at any time; they were not considered ‘persons’ until after the Civil War, when business magnates began to avail themselves of the 14th Amendment’s antidiscrimination protections.” – When is a Corporation Like a Freed Slave (Mother Jones)
The question of whether corporations are persons is not one of perception. It is not clouded by whether corporations come to life at some moment of conception. In fact, the rule of corporate personhood is best ridiculed by dissenting Montana State Supreme Court Justice James C. Nelson:
“Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”
It is past time that the application of human rights to corporate legal entities be eliminated.
Creating the Change We Need
It turns out that the way the Constitution changes is by local groups pushing forth new laws such as Initiative 103 which may ultimately be challenged in and sanctioned by higher level courts.
In fact, the Initiative 103 effort parallels the evolution of the women’s suffrage movement: “In addition to the strategy to obtain full suffrage through a constitutional amendment, reformers pursued state-by-state campaigns to build support for, or to win, residence-based state suffrage. Towns, counties, states and territories granted suffrage, in full or in part, throughout the 19th and early 20th century.” These local battles played out for fifty years before the ratification of the Nineteenth Amendment. “By 1920 when women got the vote nationwide, Wyoming women had already been voting for half a century.” Similarly, as Northwest and other cities fight to limit corporate legal powers, the national Move to Amend effort is pursuing a longer term Constitutional Amendment.
Supreme Court Reversals and Constitutional Change
Whether changed by the adoption of new amendments or the Supreme Court’s own decisions and reversals, there is ample evidence of Constitutional law as a living, breathing, ever-changing entity. The Parrish case provides a notable Washington State example, but there are many others:
- Dred Scott v. Sandford (1857) – Rules that blacks do not have the right to sue in Federal Court, reversed by the Fourteenth Amendment.
- Plessy v. Ferguson (1896) – Rules for segregation saying it does not violate the Fourteenth Amendment, reversed by Brown v. Board of Education Topeka (1954)
- The Eighteenth Amendment enacts the prohibition of alcohol and the Twenty-First Amendment repeals it.
- West Coast Hotel Co. v. Parrish (1937) upholds minimum wage legislation passed by the State of Washington
- Mapp v. Ohio (1961) required courts exclude evidence seized illegally from trial clarifying and expanding the Fourth and Fourteenth Amendments, reversing earlier decisions such as Wolf v. Colorado (1949)
- Keyishian v. Board of Regents (1967) prohibits employment discrimination based on political affiliation, reverses Adler v. Board of Education (1952)
- Roe v. Wade (1973) – Rules that the right to abortion in the first trimester is protected by right of privacy.
- Austin v. Michigan State Chamber of Commerce (1990) validated campaign finance restrictions before later being reversed by Citizens United (2010)
- Lawrence v. Texas (2003) invalidated sodomy laws in thirteen states, overturned Bowers v. Hardwick (1986).
Supreme Court decisions tend to trail cultural sentiment by many years. But we believe that change is occuring with regards to corporate “constitutional rights and corporate speech. Supreme Court approval ratings are at a 25 year low and that 65 percent of citizens of both parties disapprove of Citizens United. The rise of the Occupy movement and the 99% theme also indicate growing support for peoples’ rights over corporations.
Initiative 103 is one way that things can change. And, this may be the opportune moment to be challenging corporate rule in law.
Thomas Linzey, the Executive Director of the Community Environmental Legal Defense Fund, says it best: “This organizing is about turning away from traditional activism and dipping our hands into a new activism in which the grassroots forces themselves begin to craft and model rights-based laws which then stitch together to change state constitutions, and eventually, to change the framework of the federal constitution itself. It’s a realization that the only way substantive change is going to happen – especially that change that runs counter to the interests of a relatively small handful of corporations – is a revolt from the bottom, from the municipal level.”
We expect the combined work of Spokane, Bellingham, Seattle, Buffalo, Pittsburgh and other cities will begin to have a growing and measurable impact around the country.