“I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.”
Adam Winkler, left, and Robert Scheer. (Christopher Ho / KCRW)
In their conversation, Winkler tells Scheer that corporations have been highly successful in obtaining rights in part because they have been able to hire very capable and creative lawyers.
“Corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations,” Winkler says. “And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.”
Winkler adds that a constitutional amendment to ban corporate rights would be a mistake because corporations do need some constitutional protections, including the right to due process and free speech.
“Corporations need basic protections for their property rights. Otherwise, the government could come and seize a corporation’s assets without paying just compensation,” Winkler explains. “We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And, of course, we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights. Otherwise, they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.”
And Winkler and Scheer discuss the use of the 14th Amendment to protect corporations—an amendment created to protect freed slaves.
“The obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment,” Scheer says. “Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is, it’s the subversion of the 14th Amendment, by the corporations, by the rich.”
“That’s right,” Winkler says. “It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves.”
Listen to the interview in the player above and read the transcript below. Find past episodes of “Scheer Intelligence” here.
RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence. I know it sounds arrogant, but the intelligence comes from my guests, and not from me. I’m sort of like the poor man’s Central Intelligence Agency here. And my guest today is Adam Winkler, a well-known constitutional law professor at UCLA. And he’s written two books, one of which created a great stir, on the battle over the right to bear arms in America. And the most current one, and that one took sort of an agnostic position on the Second Amendment. And I was just complimenting him on how educational, in the best sense, his books are. Because you kind of don’t know quite where they’re going, but you get familiar with the history and the documents. And so it’s, in the best sense, a learning or a teaching experience. And that’s true of his second book, in particular; very controversial subject, after the Citizens United decision, the whole case of money and elections, particularly corporate money. And his second book is called We the Corporations: How American Businesses Won Their Civil Rights. So a lot of people didn’t know they had civil rights. So why don’t you kind of sketch out the argument of your book?
AW: I started writing the book after the Citizens United case, in 2010. And when the Supreme Court said that corporations have the same rights as individuals to spend their money to influence elections, it sort of raised the question: how did corporations come to win our most fundamental rights? And so I wanted to write a book that sort of looked at that history. We know the stories of, say, the Civil Rights Movement, or how women won equal rights, as being sort of central stories in the narrative of America.
But there’s also been a story about how corporations have won constitutional rights, and corporations for 200 years, like women and minorities, have been fighting for equal rights. Although, unlike racial minorities, they didn’t risk their lives to do it; there’s no moral equivalency between these civil rights movements, if you will. But corporations have been fighting in the Supreme Court to win the rights of people. And we think of the Supreme Court as a bulwark for the protection of minority rights, but the truth is, if you look back through American history, the Supreme Court’s mostly exercised its power to help out the most wealthy and powerful interests in America. And the corporate rights movement is a really very interesting, but overlooked example of this phenomenon.
RS: If corporations are legal persons, that doesn’t mean we can’t have campaign finance reform; it doesn’t mean–if they’re legal persons, they can’t then spend any more money than I do, right, in supporting a specific candidate. We can also have campaign finance reform laws, public funding of campaigns, and so forth. So this really doesn’t rule any of that out.
AW: No, that’s right. Corporate personhood is a really misunderstood idea. I mean, it’s actually a very long and established principle in the law, and in fact when, at law school, when we teach our students basic business law, one of the first lessons they learn is that corporations are people. And that’s not to make an existential claim that corporations are just like you and me. But nonetheless, corporations have their own independent identity in the eyes of the law. That is to say, they can be held responsible; they have their own legal obligations. But they also have their own legal rights, like the right of property. And that’s basic to the idea of a corporation.
In corporate law, though, we say that because of corporate personhood a corporation is a separate, legal person from the people who make up the corporation. That’s why if you slip and fall at Starbucks, you have to sue the corporation, Starbucks, not the individual shareholders. The shareholders and the corporation are separate legal persons. What’s become more complicated is in recent years, the Supreme Court’s used this idea to say that corporations have basic constitutional protections equivalent to those of individuals. And that’s, I think, where the court has gone awry; it’s taken that corporate personhood idea, in many ways, in the wrong direction.
RS: The Constitution doesn’t mention corporations, right?
AW: That’s right.
RS: And so, and you actually say, I think it’s on page 52, I thought it was an interesting statement, you said, “Although the Framers had not set out to protect corporations”–and you were describing, I think, Binney and the first legal case in which they were making a counterargument. And the other thing is that the Constitution sort of reeks with the notion from the Declaration of Independence that we’re endowed by our creators with certain inalienable rights. And I don’t think you’re making the case that the Founders thought corporations had inalienable rights; in fact, corporations existed by virtue of government power, right? It wasn’t the creator. It wasn’t the natural order of things. It was the King of England said, you can be a corporation, and they put down very specific regulations for what they wanted that corporation to do, how it collected its money, and so forth. And while the notion of the corporation has changed, this could be a two-edged sword. Because if the corporation’s model of the Founders is one of government having to grant it, that means government could put down all sorts of restrictions on corporate behavior, couldn’t it?
But the truth is, is the Court’s generally been reading the Constitution very broadly as a living document to protect business corporations more than anyone else.
AW: Yes, that’s right. And this has been a big issue for, for instance, for originalist justices on the Supreme Court, like Antonin Scalia, who argued that we should interpret the Constitution solely by lights of the original understanding of that document when it was adopted. And it’s clear that the Framers were never thinking about protecting corporations when they wrote the Constitution, but nonetheless, the Supreme Court has over the course of 200 years broadly read the Constitution apart from the original understanding to extend rights to corporations. And they’ve been doing it for a long, long time. And in fact, the first Supreme Court case to extend constitutional protections to corporations was decided in 1809–that’s a half century before the first Supreme Court cases on the rights of African Americans and women. And by the way, African Americans and women lost their cases, unlike the corporation in the first corporate rights case. So the Framers weren’t thinking about corporations.
But the Supreme Court is often accused of sort of a living Constitution, reading the Constitution in a way that’s evolutionary to accept new people, like LGBT people or black people or women. But the truth is, is the Court’s generally been reading the Constitution very broadly as a living document to protect business corporations more than anyone else.
RS: Privilege always operated in this country; wealth always had power. And that has to do with the writing of the Constitution, but it also had to do with interpreting the Constitution. Because as you point out in your book, and it’s fascinating history in this respect, that first decision about banking and so forth–and yes, it preceded not only Dred Scott, but Dred Scott turned against black people–but in that decision Binney, a guy who, what did he, he started the Hasty Pudding club at Harvard and everything, you know? Well, he came from privilege, and he was living on a block, I believe, with Washington and, what, Madison or Jefferson–
RS: Hamilton. And so here you had, very early on, the people of wealth, the corporations that existed, that had the charters, also could hire the most effective lawyers. And they could rig the game. And so constitutional interpretation has been rigged to people of privilege, as generally the whole legal system, from day one. And this is really what the Beards were calling attention to, that these fellows not only had wigs on, but they had slaves, they had property, they had interests, and so forth. And they took care of their interests.
AW: And they were stockholders. Many of them were owners of, held shares in stock of the sort of emerging stock corporations of the early 1800s.
RS: Yeah, you point out Washington, I think, and even Jefferson and so forth, right?
AW: Yeah, they were stockholders. And so it’s not surprising that they protected their interests. And you really point out an important theme that I found in the book, in that one of the reasons why corporations have been so successful in winning constitutional protections is that they’ve been able to hire the best, most creative lawyers from the get-go. When you think about, great lawyers have always played a starring role in the civil rights movements; Thurgood Marshall, or Ruth Bader Ginsburg. But those organizations and movements have generally been underfunded, not been able to bring all the cases they want, not been able to hire always the best lawyers; sometimes they’ve had great lawyers, don’t get me wrong.
I mean, we have to face the fact that our Constitution–and this really confounds the originalists–was a deeply flawed document. I happen to argue it’s also the most interesting limitation on government that the world has ever seen; I respect the Constitution very much…
But corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations. And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.
RS: I mean, we have to face the fact that our Constitution–and this really confounds the originalists–was a deeply flawed document. I happen to argue it’s also the most interesting limitation on government that the world has ever seen; I respect the Constitution very much, I don’t think any other government has this clear definition of the ability of power to corrupt, and the need to restrain power, and so forth. So I’m a great admirer of it. But the strict interpreters of it, the so-called conservatives on the court, really are strictly interpreting a racist, misogynist document that protected the richest people in this society. And I think your discussion at the beginning of this is quite clear. However, even there, in the document they produced, they did not–and maybe you could discuss that–they did not do what the court now did with Citizens United. They did not clearly extend to corporations the protections of the Bill of Rights, or generally the Constitution; they must have been a little bit wary of doing that. Because after all, corporations were suspect. There were plenty of people living here in the colonies who hated–after all, when they threw the tea out, the Boston Tea Party was against a corporation, right?
AW: That’s right. We think about the Boston Tea Party as a protest against the British government, but the reason why the British government had affected, legislated on the tea tax was as a bailout for the most powerful corporation in the world at the time, the East India Company, which was responsible for importing tea into the colonies. And as part of this massive bailout, the East India Company won the right for the very first time to sell tea in the colonies without using American middlemen. And so what the Boston Tea Party was, was a revolt of people who were upset that American merchants and businessmen were being cut out of the tea trade. And they targeted that tea, that boat, that night because they wanted to throw over the tea of the East India Company.
And so the corporation was something that the Framers were actually pretty worried about, at least in, at the time of the Revolution. But something interesting happened right after the Revolution, which is that right after the Constitution was adopted in the late 1780s, early 1790s, you had a huge growth in the number of corporations in America. They started to be used for everything, and by the 1800s there were over 300 corporations in the 13 colonies, a growth, an expansion of corporations that was really unprecedented.
RS: I personally think a lot of the outrage over Citizens United is a bit exaggerated. Because the fact is—I mean, for example, in Obama’s campaign against John McCain we did have a public finance alternative. People have ignored that fact. And Barack Obama decided not to use it. Right? McCain was using it.
AW: That’s right.
RS: So for all the people, and particularly democrats, railing against Citizens United, the fact is there are mechanisms in place now to have campaign finance reform, if you choose to support them and use them, right?
RS: There’s nothing in Citizens United that says you can’t have public funding of a presidential campaign.
AW: No, that’s right, although I will say that the Supreme Court has enacted certain doctrines, or has ruled in certain ways in recent cases making in harder to have public financing systems. And so a lot of clean money advocates who have been promoting a vision of public financing have found that the Supreme Court has been pretty hostile. And so you can still have a public financing regime, but the Supreme Court, in Citizens United and other decisions, has made clear that independent people who want to make expenditures and take out ads favoring a candidate, that doesn’t count against a candidate’s public funds, or doesn’t count as a contribution to their campaign.
And that’s really one of the big issues about Citizens United. We think about it as really empowering corporations to spend money, and it does do that. But it’s also empowered individuals to spend money, and most of the money that’s come into the political system, the dark money that’s come in in the wake of Citizens United, hasn’t been corporate money. It’s been individual money, it’s been a little bit of corporate money, a little bit of union money. I don’t know whether in the future we’re going to see much more corporate money; I wouldn’t be surprised if we did. One of the things I find in my book is that especially when it comes to political activity, corporations are often not first movers. They like to wait ’til progressives have sort of set the stage. And indeed, it was unions that devised the PACs that corporations would later use to become extremely powerful.
RS: And the real problem is transparency. And a corporation, by definition, has to worry—yes, OK, we can argue about whether it’s a person or not. But the good thing is, if they are out there, they have to worry about the consequence of their backing something, OK. And we see that; I mean, you know, any big corporation, they shift one way or they shift another way, they’re going to lose customers, they’re going to get heat and so forth. And so it seems to me the real issue is, is the money transparent, is it obvious that it’s going into a campaign, more so than where is it coming from.
I do stress transparency, because at least in a company case, if people knew not only what Sheldon Adelson was doing but how they can get back at him by not going to his businesses, then at least you have a restraint on this use of money, I think.
AW: Well, I think transparency can be overrated in the sense that, I mean, transparency, if we see that Sheldon Adelson’s spending $90 million to elect Mitt Romney, yeah, we know that, and I guess that’s, it’s good to know it, better than not knowing it. But the problem with someone getting $90 million from one person is that that person’s going to have an outsized influence on that elected official.
RS: Agreed. And I personally would like to ban all of it. But that’s not, my point is only on this corporate-as-a-person thing. Because if his casino is backing a candidate, then there are people who might not want to go to his casino, OK? If Apple, you know, which has I think an enlightened position on gay issues and so forth—they have to take some lumps. I do stress transparency, because at least in a company case, if people knew not only what Sheldon Adelson was doing but how they can get back at him by not going to his businesses, then at least you have a restraint on this use of money, I think.
AW: No, I think that’s very possible, and I think it’s part of what we’re all looking for in light of the Supreme Court’s strict limits on what we can do in the campaign finance area, is to try to find other ways that we can try to make more transparent and make our system more democratic and more open.
That line between sort of property rights and liberty rights seems to be one that the Supreme Court has lost sight of.
One of the things that I find is that, I found that there was, a hundred years ago, courts dealt with the issue of whether corporations had a constitutional right to spend their money to influence elections. A series of cases arose out of the Prohibition era, as in the run-up to Prohibition, brewing companies wanted to take out ads and whatnot to influence those elections so that they wouldn’t ban alcohol. And they chafed against these early campaign-finance laws that restricted corporate money in elections, and they went to court and challenged them as a violation of their constitutional rights, a hundred years before Citizens United. The courts back then, though, said that corporations had property rights, not liberty rights. They didn’t have the right to personal freedom and democratic participation, and the courts 100 years ago universally upheld those campaign finance laws. That line between sort of property rights and liberty rights seems to be one that the Supreme Court has lost sight of.
RS: There are certain liberty rights—I hate to be challenging the professor here–that we do accept that corporations have. Because they do require maybe a degree of privacy, and so forth, no?
AW: One of the things I definitely concluded after writing the book—the book is not a work of advocacy one way or the other, it’s a history book looking backwards. But one of the things that I sort of drew out of the book is that the corporations need some constitutional protections. As you know, there’s a constitutional movement to amend the Constitution, to add a 28th amendment that would outlaw corporate rights, that would say corporations are not people, supported by a lot of big organizations–Move to Amend, Public Citizen, and others. I think that constitutional amendment would be a mistake, although I understand its motivations and desire to scale back corporate power.
Corporations need basic protections for their property rights, otherwise the government could come and seize a corporation’s assets without paying just compensation. We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says, we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And of course we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights, otherwise they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.
RS: We’re going to take a break right now, and I want to get back to what room we have left to make our politics accountable and not have money drown everything. So I want to get constructive here. Be right back. [omission for station break] And so let me ask you, as a constitutional scholar, how significant is Citizens United? How much room is there now for making this political system more accountable?
AW: I think that Citizens United is a very important case, not just for freeing up corporations, but for making it a little bit harder to stop people from making independent ads. The Supreme Court in Citizens United also emphasized that if an individual or a corporation wants to spend money on an election ad, and it’s not coordinated in any way with the candidate, then there’s no potential corruption that could come from that. I don’t think that’s right.
We should see Citizens United, though, as part of a larger pattern. And the Supreme Court under Chief Justice John Roberts has invalidated quite a number of campaign finance laws and made it much harder to achieve that kind of transparency that many of us are seeking. And new limits, and in fact there’s a case that may be going up to the Supreme Court that was just decided this week by the Ninth Circuit, the federal court here in California and the western states, that upheld some campaign contribution limits, and over a vigorous dissent by one of the republican appointed justices. And there is at least some speculation among election-law scholars that the Supreme Court may take this case next year and declare that all contribution limits are unconstitutional. Which would make it that much harder to have accountability and transparency, and restrict the flow of money to our elected officials.
RS: What can be done? I mean, one perspective would be, OK, let’s limit the power of government. For example, let’s just take the whole area of foreign policy. Our Founders, and you’re a constitutional scholar, it seems to me were in pretty much agreement that we should not get extended too much abroad, foreign entanglements and so forth, because then the individual citizens would lose accountability; they wouldn’t know what’s going on, they could be easily lied to.
And that was their sort of view of what happened to England and Rome and everyone else, you know. So we wanted to keep the dimensions. You could also say, look, if we really have a market system, let government stick with making the product safe and accuracy and so forth. And you know, and that means also not bailing out the banks. [Laughs] Not having the Fed as a backup. There’s a kind of more pure libertarian position that argues all that; get back to Adam Smith, keep the scale low, prevent mergers, anti-trusts and so forth, and not have government micromanage. And isn’t that somewhat close to what the Founders really had in mind?
AW: Well, I will say, I think sometimes we can often fail to see, history can blind us to the ways in which the Founders did regulate business and did regulate trade. And they didn’t have the kind of big bureaucracies that we have today; the economy was so much different back then. But there’s been a lot of really interesting, great, historical work about the extent to which, even in the colonial era and the early state era and the early 1800s, how often government did regulate for the public’s safety and welfare. And that’s partly why corporations were seeking constitutional rights from our earliest days.
The reason why corporations want these rights is because they can fight back against regulation of business. They can strike down a law that’s designed to regulate or restrict what businesses do in the interest of investors or consumers or the public at large. And when they lose in the legislature, which corporations don’t do that often, they can use these rights to go to court to try to overturn those laws. And from the earliest days of America, corporations are really flooding the courts with these constitutional claims, trying to get out of regulation and to avoid efforts by we the people to regulate business. So I do think, yeah, there’s no doubt the framers had a more libertarian understanding of the economy than we have, to be sure. But from the early days, there were efforts to regulate businesses and try to soften some of those hard edges. And corporations have always pushed back by using the Constitution.
RS: OK, but with all due respect, I don’t think you’re setting it up—this is not the only dichotomy. Another view is, in fact–and the banking meltdown, what happened in the Great Recession is a very good example–regulation in the sense of preventing crime, clearly, any society has to do that, right? So for instance, of giving people fraudulent loans; of lying to them; of distorting the situation; of colluding to prevent their getting information, or to game the system, or to control the interest rates, Libor, or so forth—all of the stuff that’s come out–these are crimes. And basically, one could argue that in the name of deregulation, all the banks did was prevent policing of crime. Something poor people can’t do; if they steal your iPhone, they’re going to go to jail, but you know if the banks can change the law so it’s not a crime to lie to people about their mortgage application and the interest rate—and to rig the interest rate and so forth—what you’re really talking about is not deregulation, you’re talking about effectively using the government to conceal your theft of property, or crime and so forth.
So I don’t think the thing is put right. And in your book, I learned that even the King of England, when he did grant the charter to these corporations, demanded accountability and transparency. And you actually argue in your book that these original corporations were kind of a model of transparent governance; there had to be board meetings, there had to be public meetings, there had to be information and so forth. And the scale was going to be quite small. So maybe you could talk about that. Because you know, the argument that’s always put is, either give business a blank check, which then, what, they’re licensed to steal and create monopolies and prevent competition; or, in fact, treat them the same way you treat your poorer individuals, hold them responsible when they steal and they take advantage and when they distort, right?
AW: That’s right. And in some ways, our own Constitution draws its heritage from the early colonial corporate charters of the early colonies. That were, like I said, set up as corporations, as business corporations—
RS: But accountable.
AW: They were accountable. They had investors, the King wanted to oversee them and did oversee them pretty closely. But they were set up as corporations; as corporations, they had a charter from the government, a document, like you said earlier, that had to be granted by the government so they could operate. And those charters were heavily detailed in the way they regulated business. As you said, they really, that was the way in which businesses were regulated, through charters. And these charters specified who could hold office, what the officeholders’ rights were, what the limits of the officeholders’ powers were, what the rights were of the members to come together and to try to enact bylaws.
We think about deregulation often as about taking out of law, right, or rescinding legal rules that are burdens on business. But in many times, those burdens are really designed to help us, and things like disclosure laws. And if you get deregulation and exemptions from disclosure laws,
All those things that were part of the corporate organization came to really influence the Founders’ ideas of government. And by the time they’re writing the Constitution, they’re not thinking about these in corporate terms, but they’re still thinking about, government should have a written charter, a written document that limits what officeholders can do, and that provides rights for people to participate in lawmaking, and recognizes their individual rights. So you’re absolutely right, there’s ways in which the corporation was influencing democracy from the very earliest days, and influenced sort of the shape of the Constitution.
RS: Much of what’s called deregulation, as I say, is a way of obscuring what’s going on. You know, so you say, we’ll get away with all of the New Deal banking regulations—well, those were just transparency regulations; what are you doing, who are you doing it to, what information are you sharing. Certainly the freedom of corporations to game the interest rate, and the Libor and all that sort of thing–that is just simply a license to steal.
AW: That’s right. It’s so funny, we think about deregulation often as about taking out of law, right, or rescinding legal rules that are burdens on business. But in many times, those burdens are really designed to help us, and things like disclosure laws. And if you get deregulation and exemptions from disclosure laws, you’re really going to hurt the individuals who rely on those disclosure laws. And this is part of the reason why corporations get those constitutional rights and seek to assert them. So for instance, in recent years we’ve seen corporations use the First Amendment to fight back against laws requiring graphic cigarette warnings on tobacco, on cigarette labels. We’ve seen corporations fight against rules requiring disclosure of the use of conflict minerals.
And indeed, by one study, 50 percent of all First Amendment cases brought today are brought by corporations and businesses and trade associations seeking to fight back against basic kinds of laws that are requiring them to disclose information for consumers. So it really does show you how this effort of corporations to both manipulate the government so it serves businesses, and also use the Constitution to disempower government from imposing various kinds of obligations on corporations, very actively these days.
RS: The original creators of our Constitution had a very strong sense of states’ rights. They said all these powers not specifically given to the federal government are reserved to the states. And what happened after the writing—so after the original document, rich, powerful people in this country hired the smartest lawyers from the best schools, and got them to subvert the intent of the Founders. Because certainly—and take the case of Texas entering the union as a very good example. When Texas entered the union, their main concern of the people in Texas was to restrain the role of the banks, because the banks were associated with swindling people out of their claims, and so forth. They didn’t even want banks to give mortgages and so forth. Over the years, and that’s why Texas was hurt less in the banking meltdown than California, because they still had some tradition. What happened was through the courts and the Congress, the rights of the states to regulate the banks and other corporations was very much limited. Taken away. In fact, the early decisions you cite had to do with controlling state—first decision, the united bank and so forth–
AW: Yeah, Bank of the United States v. Deveaux, was one of the first Supreme Court cases.
RS: Yeah, that case was taking away the power of the state. And so the originalists are full of it. They’re lying when they say, we care about what’s in that Constitution. Because the people who wrote the Constitution, if there was anything in their mind, was not to cede too much power to this new federal entity that they were oversuspicious of. And so what you had after the writing of this Constitution is rich and powerful people getting into the courts and, really, subverting this constitutional principle. And Citizens United is kind of the culmination of that.
AW: Yeah, I think that’s right. I think that’s the way to think about it. Citizens United is the case that sort of shows, sort of took a spotlight and has shone it on this issue, really highlighted the question of corporate power in the courts, and how corporations have used the Constitution to expand their influence on—
RS: No, used the courts. And distorted the Constitution.
AW: Yeah. Well, yeah, that’s right. Used the courts and distorted the Constitution, I think that’s right. And that’s why, I guess, on the cover of my book there’s a balled-up Constitution, you know, showing what can become of the Constitution when in the hands of the wealthiest and powerful interests of corporations.
RS: So, one final point, because we really haven’t talked about the 14th Amendment. And the thing that is sort of enraging about your book—because I mean, I just want to read the 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
And the obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment. Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is it’s the subversion of the 14th Amendment, by the corporations, by the rich.
AW: That’s right. It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves—
RS: By radicals. Written by radicals. Populists. Yeah.
AW: Written by radicals, progressive radicals, right. And yet about a little less than 15 years after the 14th Amendment was ratified in 1868, the Southern Pacific Railroad company, a powerful, wealthy corporation here on the West Coast, launched a remarkable series of what its lawyers called “test cases,” seeking to win a Supreme Court ruling giving them rights under the 14th Amendment. And what was so remarkable was that the Southern Pacific Railroad hired a lawyer by the name of Roscoe Conkling, who was an illustrious politician at the time, and had been one of the drafters of the 14th Amendment. And Conkling went to the Supreme Court and said that the 14th Amendment was drafted specifically to protect corporations, too, and even produced a musty old journal that he claimed supported his story. It turns out that historians have gone back and realized that Roscoe Conkling had just flat-out lied to the justices of the Supreme Court. Nonetheless, the Supreme Court a few years later adopted Roscoe Conkling’s theory of the 14th Amendment, said corporations were protected. And in about the first half-century of the 14th Amendment, the Supreme Court heard only 28 cases on the rights of African Americans, mostly ruling against them. And during that same time, the court heard 312 cases on the rights of business corporations, often ruling in favor of those businesses.
RS: Well, that’s going to have to do it for this interview with Adam Winkler, a professor of constitutional law at UCLA’s School of Law, and the author of a really important book on Citizens United, basically, but the roots going back to our original Constitution, “We the Corporations: How American Businesses Won Their Civil Rights.” The producers for today’s show are Joshua Scheer and Rebecca Mooney. Kat Yore and Mario Diaz here at KCRW are the engineers. See you next week.
Robert Scheer Editor in Chief. Robert Scheer, editor in chief of Truthdig, has built a reputation for strong social and political writing over his 30 years as a journalist. His columns appear in newspapers across the country, and his…