Bellotti, 435 U.S. at 809 (White, J., dissenting).
Courts since Bellotti have explored the contorted metes and bounds of political37, commercial38 and negative corporate39 speech rights without revealing why or how the Constitution compels the conclusion that corporations must be empowered by the First Amendment.40 They have also avoided any discussion of how the exercise of those rights by corporations negates the ability of people to exercise their own First Amendment rights – thus preventing people from using their own free speech to secure their inalienable rights to life and liberty.
In addition, Courts have avoided the interrelated discussion of how the conferral of First Amendment rights upon corporations involuntarily subjects the majority to the blunt force of the speech of the corporate minority – enabled through the massive wealth of corporations – thus nullifying the fundamental guarantee of a republican form of government.
(2). “Finding” Corporations in the Fourth Amendment
The Fourth Amendment to the U.S. Constitution declares that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV.
The Supreme Court “found” corporations in the Fourth Amendment in Hale v. Henkel, 201 U.S. 43 (1906). There, the Court nullified a grand jury subpoena issued under the Sherman Anti-Trust Act during an investigation into unlawful trade and price fixing actions of tobacco corporations. The subpoena ordered those corporations to produce documents. The Court quashed the subpoena, ruling that it constituted an “unreasonable search and seizure” of the corporations in violation of the guarantees of the Fourth Amendment.
As with its First Amendment decisions, the Supreme Court - in this case and subsequent cases - has collaterally focused on the definition of “unreasonable search” rather than explaining why corporations should be constitutionally shielded from inspections and other searches that seek to protect the health, safety, and welfare of the people.41 The Courts have also not explored how granting Fourth Amendment rights to corporations subverts republican government by enabling a corporate minority to unilaterally exempt corporations from laws adopted by the majority.
(3). “Finding” Corporations in the Fifth Amendment
The Fifth Amendment to the U.S. Constitution declares, in part, that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb. . . nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V.
The Supreme Court “found” corporations in the Fifth Amendment’s Due Process Clause in Noble v. Union River Logging R. Co., 147 U.S. 165 (1893), in which the Court ruled that the grant of a public land right-of-way to a railroad corporation by the Secretary of the Interior could not be revoked by a subsequent Secretary without extending due process of law to the corporation.42 The Court “found” corporations in the Takings Clause in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), in which the Court ruled that coal corporations must be compensated for property value lost due to laws protecting homes from mine subsidence.43 The Court “found” corporations in the Double Jeopardy Clause in Fong Foo v. United States, 369 U.S. 141 (1962), in which the Court ruled that a corporation could not be retried after a court directed a judgment of acquittal during the presentation of evidence by the government.44
Courts have, however, avoided any discussion of how the exercise of judicially conferred Fifth Amendment rights by corporations prevents people from governing to protect their health, safety, and welfare. Courts have also avoided any discussion of how the use of Fifth Amendment protections by corporations enables the corporate minority to evade legislative measures adopted by the majority to secure those interests – an entitlement that negates the people’s right to a republican form of government.
(4). “Finding” Corporations in the Contracts and Commerce Clauses
The Contracts Clause of the Constitution states that "No state shall . . . pass any . . . law impairing the obligation of contracts." (Const. Art. I, § 10.) In Trustees of Dartmouth College v. Woodward in 1816, the U.S. Supreme Court used the Contracts Clause to prevent the people of New Hampshire from turning private Dartmouth College into a public university.45 The citizens of New Hampshire had decided that public universities were a prerequisite to maintaining a republican form of government,46 and the New Hampshire Supreme Court had vindicated the people’s authority to transform the College.47
The Commerce Clause states that "The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (Const. Art. I, § 8.) The Supreme Court has concocted, within the Commerce Clause, a "Dormant Commerce Clause" that enables corporations to use the Courts to overturn state laws adopted to protect the health, safety, and welfare of people and communities.48 As demonstrated in the second part of this Brief, the Commerce and Contracts Clauses are regular weapons in the arsenal of corporate constitutional rights, wielded by corporations through the Courts, to deny the inalienable rights of people to life, liberty, and property.
Courts have avoided any discussion of how Commerce and Contracts rights, wielded by corporations, enable corporate managers to strike down laws fashioned by the majority – thus negating the Constitutional guarantee of a republican government.
IV. Corporations Illegitimately Wielding Constitutional Rights of Persons Against People and Communities Regularly Deny the People Their Inalienable Rights, Including Their Right to a Republican Form of Government. As explained by at least one commentator, describing the fundamental
principles that anchor republican governments:
[i]f all men are by nature perfectly free and equal, there can then be no claim grounded in nature of one to rule another. . . . As a statement of right, then, the principle is a universal: all forms of government derive their legitimacy from the consent of the governed; all forms of government claiming legitimacy are subject to the master principle of popular sovereignty and hence are accountable to the governed for the faithful performance of their charge.49 The judicial “finding” of corporations in the Constitution constitutes a long train of usurpations of the people's inalienable rights, including the people’s right to be free - as a majority - from governance by a corporate minority. That bestowal of “corporate rights” comes at a clear cost to people. As at least one commentator has noted, “the extension of corporation constitutional rights is a zero-sum game that diminishes the rights and powers of real individuals.”50
Thus, Fourth Amendment rights conferred upon corporations deny people access to information and the ability to protect their health, welfare, and safety; the bestowal of First Amendment rights upon corporations denies people’s access to information to frame questions, and participate in public debates and elections; the bestowal of equal protection rights upon corporations prevents people from treating corporations as subordinate entities. Cumulatively, the judicial conferral of rights inherently denies the people their ability to govern themselves.
The cases outlined below show that such assessments are not ivory tower academic theories, but frightening reality. It is clear that “finding” corporations within the Constitution has come only at the expense of nature, communities, democracy, and the health, safety, and welfare of people. It has also wrested the authority to govern from the majority, and vested it in a distinct corporate minority – thus violating the Constitutional guarantee of a republican form of government.
A. Corporate Personhood and the Denial of People’s Inalienable Rights After people of the United States worked to eliminate slavery51 and drove the adoption of the Fourteenth Amendment, the federal government passed civil rights legislation to empower African Americans to protect their Amendment rights from infringement by state governments.52 Today, the Civil Rights Act of 1964 is a direct descendant of the original Civil Rights Acts of 1866 and 1871. Section 198353 of the 1964 legislation provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress (emphasis added).
Because §1983 is an exercise of Congress' power to enforce §1 of the Fourteenth Amendment,54 "persons" protected by §1983 are the same "persons" decreed by the Courts to be protected by the Fourteenth Amendment.55 Along with establishing liability, §1988 of the statute allows the recovery of attorneys’ fees and costs, to be awarded to the “person” who was the subject of the discrimination.
Thus, corporations, by virtue of their judicially conferred “personhood,” wield the Civil Rights Act in unison with the Due Process and Equal Protection provisions of the Fourteenth Amendment to overturn laws and punish elected officials with the payment of attorneys’ fees incurred by the corporations. The story of how cell phone provider Omnipoint Communications Corporation forced its way into several communities over the past decade is illustrative of how corporations routinely use Fourteenth Amendment rights to deny the right of people and communities to protect their health and safety.
Omnipoint Corporation is engaged in the business of providing digital telephone service by constructing antennae for transmitting radio signals between cellular telephones and ordinary telephone lines. The radio signals are a low-intensity form of radiofrequency (RF) electromagnetic radiation.
There exists a large body of evidence that the radiation emissions from those lines are harmful.56 A neuropsychiatrist testifying before a zoning and planning committee in 1991 explained:
There has been a steady stream of reports of possible health risks associated with exposure to electromagnetic fields and MW/Rf (microwave/ radiofrequency) radiation from power substations, high voltage lines and microwave towers. Most frightening of these are the possible increases in the risk of cancer and childhood leukemia.
. . . .
In summary, we feel that cellular biology, animal and human studies show that MW/RF exposure presents a health risk at the power levels of the proposed antenna and even at the power levels of the existing antenna . . . . Increased numbers of cancers have been found in populations exposed to less radiation than we are receiving now . . . . Our review of the literature on MW/RF exposure has led us to the sobering conclusion that living in close proximity to a source such as the proposed NYNEX/Newton antenna on Waban Hill will increase the risk to ourselves and to our children of developing cancer.57 In 1998, the Corporation sought to construct a cellular telephone tower in Chadds Ford Township in eastern Pennsylvania. Because the municipality's zoning ordinance provided no place for cell towers, the Corporation filed a variance application to force its cell tower into the municipality.
Taking the community’s concerns about health and safety seriously, the municipal government denied the Corporation’s application on May 26, 1998. Municipal officials believed that their exercise of police power, to protect the community, was based on solid constitutional doctrine. Several Courts have held that such an exercise of police power is intimately linked to the preservation of people’s inalienable rights. Supreme Court Justice Gray has likened such an exercise of the municipality’s police power to the preservation of the rights guaranteed by the Declaration of Independence and the Fourteenth Amendment:
The police power includes all measures for the protection of the life, the health, the property and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling houses and lottery tickets.
This power, being essential to the maintenance of the authority of local government, and to the safety and welfare of the people, is inalienable. As was said by Chief Justice Waite, referring to earlier decisions to the same effect, "No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. (citations omitted).58 Courts have specifically recognized the role of a plenary police power to defend individual rights guaranteed under the Fourteenth Amendment and other constitutional provisions. Courts uniformly agree that the police power cannot be bargained away.59
The Omnipoint Corporation responded to the municipality’s denial by suing Chadds Ford Township under the federal Telecommunications Act of 1996 (TCA) and § 1983 of the Civil Rights Act. Section 704 of the TCA - which cellular phone corporations influenced by wielding First Amendment rights60 - included a provision that outlawed control by local government over the "placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions." The law thus compelled elected and appointed officials to trump the decisions of communities in favor of the private interests of telecommunications corporations.
Using that section of the Act, the Federal District Court for the Eastern District of Pennsylvania ruled that Chadds Ford Township had violated the law, and that the actions of the Township had deprived the Corporation of its civil rights under §1983. The Court then ordered the Township to pay the Corporation’s attorneys' fees. Omnipoint Communications Enterprises L.P. v. Zoning Hearing Board of Chadds Ford Township, No. Civ. A. 98-3299, 1998 WL 764762 (E.D. Pa. Oct. 28, 1998).
After successfully forcing its cell tower into Chadds Ford Township by harnessing the federal Court, Omnipoint Corporation officials marched to the town of Wellfleet on Cape Cod Bay in Massachusetts. There, citizens had organized the Wellfleet Action Group to oppose installation of the Corporation’s cell tower in the steeple of the First Congregational Church, which sat in the middle of town. Human health concerns motivated democratic opposition to the installation.61 Wellfleet residents elected citizen Margo KochRuthe specifically to vote against the installation, and the Town denied the Corporation’s request to site the cell tower.62
The Corporation then used the Chadds Ford Township decision to threaten the Town with a lawsuit if the Planning Board did not reverse its decision. Citizens of Wellfleet responded by petitioning the Planning Board to amend its zoning laws to require 1,500 feet setbacks for cell towers, which would have forced the Corporation to locate its tower outside town.63 After meeting with lawyers for the Town and the Corporation behind closed doors, the Planning Board reversed itself and declined to amend the zoning laws for the Town.
Town selectman Dale Donovan described the result of the Corporation’s wielding of judicially granted constitutional rights:
Our legal counsel said, "You're dead in the water on this one." How much of the people's money can we spend to defend something? Omnipoint's use of the civil rights threat definitely influenced us. Then you get into serious penalties. The term 'civil liberties' has broadened so dramatically. You're a corporation! You have property rights, but that's not what civil rights laws are for.64 Other citizens of Wellfleet were equally bitter in their assessment. Lynn Hiller, a member of the Wellfleet Action Group and former official of the National Institutes of Health, declared, “we learned that corporations like Omnipoint, engorged with constitutional rights granted by the Courts, now govern our communities. When the dust settled, we were no longer citizens of Wellfleet or of this nation. We were not persons under the law. Any remnants of democracy had been destroyed by the corporations and the courts."65
By reading the Constitution to mandate inclusion of corporations in the Fourteenth Amendment, the judiciary has subverted the clear meaning of that people-driven Amendment. Its use by corporations – like the Omnipoint Corporation – reveals that instead of being used to protect and secure individual rights, the Amendment is now wielded - under the authority and protection of the Courts - to deny the rights of people to protect their health, safety, and welfare. In the process, the use of the Amendment by the corporate minority automatically negates the federal guarantee of a republican form of government – a democratic form in which a minority is necessarily prevented from governing the majority.
Justice Black, in his dissent in Adamson v. People of the State of California, 332 U.S. 46 (1947), summarized the history of judicial activism surrounding the Fourteenth Amendment:
It was aimed at restraining and checking the powers of wealth and privilege. It was to be a charter of liberty for human rights against property rights. The transformation has been rapid and complete. It operates today to protect the rights of property to the detriment of the rights of man. It has become the Magna Charta of accumulated and organized capital.
Id. at 85 (quoting Charles Wallace Collins, The Fourteenth Amendment and the States 137 (1912)).66 B. Corporate First Amendment Rights and the Denial of People’s Inalienable Rights.