The real civil war began during what we call the Civil War, which was only a part of the vastly bigger whole. The real winners of the Civil War were those who used it to win their first big victories in the more ponderous civil war which is only today reaching its climax. These winners were the corporations, and their victories included the mutually reinforcing and procyclical arrogation of pseudo-constitutional “rights” (through rogue courts), unlimited powers, and absolution from practically all responsibility (through courts and state legislatures).
This corporatist onslaught has been, since its beginning, anti-sovereign. What is sovereignty? It is the inherent right and prerogative of a civilized people to rule itself, and dictate all the forms and conditions of the institutions it sets up to carry out this rule. This right is postulated, since we know all other derivations of right are fraudulent. One must, in principle, either accept democratic sovereignty or oppose civilization itself. It follows that legitimate power can exist only insofar as it’s deployed through a sovereign form. Any power exercised by any other entity is simply brute state-of-nature force. Such an entity is nothing but a bandit gang operating out of a cave in a swamp, no matter how much it embellishes itself with fraudulent ideology and the trappings of pseudo-authority.
In principle, a profit-seeking corporation – sociopathic and anti-democratic by definition and in practice – is an affront to sovereignty. A government which fails to restrain such corporations, which on the contrary sees its role as to empower and aggrandize them, is not bestowing sovereign legitimacy upon them. On the contrary, it’s abdicating any sovereign legitimacy it may have had itself. So the crisis of corporate legitimacy always forces a crisis of government legitimacy as well. (This is in addition to all the other reasons we have to reject this kleptocracy’s legitimacy.)
Corporate ideologues have tried to turn this order upside down. They used 19th century theories of organicism and the Natural Entity, along with intentionally sowed confusion between corporate personhood (a technical legal/constitutional status) and corporate personality, the broader ideology regarding who or what juridically exists in the first place. Using these they tried to assert that corporate sovereignty was actually prior to government sovereignty, which would not only forestall government’s right to limit the essence and actions of corporations, but would justify the corporatist bagman-and-goon theory of government.
This is absurd on its face and really just calls into question the legitimacy of the state as well, rather than conjuring legitimacy for the corporation. Since sovereignty reposes in the people, only the state could possibly be the legitimate form of this sovereignty. (I’m not saying it ever is legitimate in practice; I’m saying only it could ever be legitimate in principle.) By definition an institution which embodies sovereignty must encompass all the people within the sovereign body (which we can take to mean, a logical area defined by geography, nationality, or some such elemental measure; for now it often also means the existing technical boundaries of countries, however arbitrary these usually are) as citizens, and it must do so toward the goal of their human well-being.
A profit-seeking corporation, on the contrary, is dedicated only to profit and property, and recognizes as its equivalent of “citizen” only those who own property and/or are engaged in profit-seeking behavior. Therefore, by definition it cannot be sovereign, only anti-sovereign.
The corporation also runs afoul of what was classically called the solecism of sovereignty. This was also called the fallacy of imperium in imperio, “sovereignty over sovereigns”. What it means is that sovereignty can never be divided against itself; this is a conceptual absurdity and can only bring chaos in practice. During the American Revolution the British and their loyalists accused the colonists of this fallacy, when the colonists tried to claim that the King but not Parliament was sovereign over them. (That was prior to declaring complete independence.)
It’s easy to see that the British were wrong, since there was no logical reason King or Parliament could be sovereign or should exercise any power at all over people on the other side of the world who were economically self-sufficient. (The colonists were therefore wrong as well so long as they tried to figure out concepts which could justify flouting Parliamentary authority but still recognize British sovereignty at all. Finally they accepted the absurdity of this and declared independence.)
But it certainly is true that a corporation asserting rights against its creator (the government, and indeed the people themselves) is a logical impossibility. (It’s the same if government claims “rights” against the people. We can see how backwards most of the language and concept of the Constitution are.) In the original SCOTUS case which first claimed to discover corporate Constitutional rights, Dartmouth vs. Woodward, John Marshall still admitted that a corporation was “an artificial being…existing only in contemplation of law”, but he proceeded to find that a 1769 dictate from King George himself had sovereign authority, and that a corporation could now argue this sovereign right against the government. This is a clear example of the solecism. But thanks to that case the corporation could now claim incorporation itself as a “property right”. (Too bad nobody had ever put through a revolution to purge the notion that George had sovereignty to dictate to us. Oh, wait….)
(Before proceeding, I’ll mention that in Federalist 20, in the course of arguing for a strong federal government which would act directly upon individuals without any mediation of the states (this was argued by the “anti-federalists” to be a usurpation of state authority), Madison declared that the real violation of state sovereignty would be if the federal government were to undertake “a legislation for communities as contradistinguished from individuals”, that is if it held states collectively responsible for individual violations of federal law. He said this would constitute the real solecism, the real “sovereignty over sovereigns”.
But transposing this to corporate charters, since the state government generates this alien corporation and this corporate form of “sovereignty”, formally enshrines it as a collective sociopath, isn’t this “legislation for communities”? Technically the government places the corporation outside of sovereignty and then invites it to treat the sovereign people as a prey.)
The inadequacy of recognizing corporations as being artificial, created by government and dependent upon it, while still trying to argue their “right” was obvious, and ideologues were soon looking for new rationales. The theory of a corporation as a transparent veil between the government and society on one hand, and management and shareholders on the other, held that the corporation is really nothing more than these persons themselves, with a mere veil subtly obscuring their countenance. This had practical use for trying to justify the doubling of rights and shedding of responsibilities for corporate cadres, since the corporation was then held to be indistinguishable from the actual persons making it up. Yet because they were corporatists they were also supposed to get double the rights and license to run risks and commit crimes with personal impunity.
But this theory as well could give no reason why these groups of people, transparently veiled or not, should be able to claim special rights and privileges at the expense of government and society. Indeed, by highlighting how a corporation is nothing but a gang of flesh-and-blood criminals who have unaccountably received a special charter to assault the society and the body politic, the theory called attention to questions like: Why should we allow corporations to exist at all? And it underlined the fact of their anti-sovereign nature.
How can anything other than the people themselves and any government they constitute be considered to have an unlimited lifespan? And how can any individual be officially placed above/outside the law by being granted the special license of limited liability? (This is most characteristic of corporations, but it’s spread to government officials as well, who are now granted all sorts of immunities beyond the most basic ones listed in the Constitution. I think it’s obvious that any immunity not strictly written into the Constitution is invalid.) The very concept of corporate chartering is a basic democratic government function, so any government relinquishment of this power by granting general incorporation, “for any purpose” incorporation, infinite lifespan, removing restrictions on activities, ownership, mobility, size, etc., are abdications of sovereignty.
Given the conceptual problems with this “transparent veil”, how it cannot justify anything but only tendentiously describe it, ideology moved on to the Natural Entity theory, derived from the “organicism” of German liberal* theory, which I mentioned above. This upside down mirror image of the real nature of corporations could be convincing to those who wanted to be convinced. In practice, it was grafted to Social Darwinism and used to justify the most barbarous notions of Might Makes Right. As enshrined in the Lochner case, the theory simply asserted that corporations had a prior sovereignty claim vs. government in principle, so that government action to restrict corporate contracts was by definition invalid. With its interfusion of Social Darwinism it asserted that profiteering was by definition the highest human activity. Putting them together, ideologues and supportive judges found that government, and by extension democratic society, had no authority to restrict profit-seeking activity, however destructive of society or democracy.
[* How cute that the same conservatives who are so quick to pounce on any suggestion that American constitutional law should ever pay attention to the laws and theories of “foreigners” derived one of their most cherished ideological tropes from 19th century European liberals, of all things.]
The main problem with this as a theory of Constitutional jurisprudence is that it was obviously unconstitutional. If the Constitution had intended any of these radical propositions, it would have said so. But on the contrary, it implicitly denigrates corporations as such and rejects organicism by recognizing only the federal government, states, and the people. (If we really wanted to enshrine corporatism we’d have to rewrite the Constitution including a new Bill of Rights defining the rights of corporations and the rights of people vis corporations. The fact that no corporatist wants to do this proves their bad faith and tyrannical intent. They know democracy would never embrace such a plan, so they stick with their anti-constitutional coup. But the facts remain facts: Under this Constitution, corporatism is illegitimate. If democracy really wanted to constitutionally meld government and corporations into this quasi-command economy, that economy would have to be Constitutionalized.)
(Again, where’s our stalwart Constitutional “originalists” on this one? Out to lunch with their corporate pals, where else?)
Eventually jurisprudence would reject proclamations of any particular theory of corporate sovereignty or rights, and simply proceed in an ad hoc manner, justifying pro-corporate findings in any convenient way. But the underlying anti-sovereign ideology remained. The main trend of 20th century legal personhood theory continued to define a legal person as anything which seeks profit and owns property
. (A more recent manifestation is law and economics
, which without any further fuss would simply perform an economic cost-benefit analysis and then apply the law based upon how it maximizes the benefit for the propertarian. This is also the basis of the “reasonable person” standard which denies the existence of coercive capitalism and from there finds any victim of it to have been “unreasonable” and therefore actually his own victim, from the law’s point of view. A typical example is if your boss orders you to do something unsafe, and you’ll be fired if you refuse. If under that duress you comply and are injured and file suit, a Law and Economics judge would deny the existence of the economic coercion, decree that a “reasonable person” would have refused the order, and find you the victim of your own reckless unreasonability. This is nothing but a resurrection of Lochner
but with a new spin.)
Today we confront the ultimate totalitarian manifestation of this ideology and the institutions based upon it, globalization. The “free trade” treaties like NAFTA, “the law of the land” according to the Constitution, comprise a global anti-constitution. Their only content enshrines corporate license and prerogative at a level far above national governments and laws. Democracy and civil society have no place at all in this system. The “treaties”, written by multinational corporations, peddled by corrupted bagman/goon governments, and forced upon all other countries, are nothing but laundry lists of anti-sovereign usurpation and incitements to governments to set up administrative “free trade zones”, designed after the Nazi General Government of Poland, whose secession from law and civil society are then to be extended to encompass the entire “country”. At that point sovereignty would be completely obliterated and replaced by direct corporate rule.
The provisions are set up to encourage corporations or their goon government proxies to file lawsuits against any manifestation of sovereignty or democracy anywhere which could hinder the profit-seeking imperative, which is the only one recognized by the globalization structure. (The same imperative which is the only one recognized by the “legal personality” regime.) The suits are heard by unelected, unaccountable secret tribunals staffed, as are the globalization cadres themselves, by corporatists who come in through the revolving door. Suits have been filed against the US, Canada, Mexico, and many other governments. The very threat of such suits has a stifling effect on democracy.
While the WTO is relatively backward in having governments sue other governments on behalf of corporations, lateral agreements like NAFTA are more advanced in having the corporation directly sue the offending democracy. If it was deranged to allow domestic corporations to sue for rights against the government that created them, how anti-sovereign is it to allow alien corporations to sue a government? Perhaps the most telling fact is that under NAFTA and similar “treaties”, an alien corporation actually has more rights against a sovereign people than a purely domestic one not involved in global commerce and therefore not eligible for the powers of the Treaty.
This perversion of sovereignty is the terminal manifestation of how so-called foreign policy has always been the mechanism
by which anti-democratic and anti-federalist subversion has been innovated “elsewhere” and then brought home to subvert domestic democracy. In the next post I’ll discuss the corporate assault on democracy and politics itself more thoroughly.