March 10, 2011

Corporations Are Anti-Sovereign


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.


  1. Thanks Russ for defining the enemy. It helps me think constructively again.

    Comment by gregg — March 10, 2011 @ 10:49 am

    • Glad to hear it, Gregg.

      Comment by Russ — March 10, 2011 @ 11:57 am

  2. Anti sovereign would be just fine if it stopped there. National assumption of authority over every aspect of citizens lives is a horrible concept. However, corporatists being human are greedy and could never be content with merely usurping national governments.

    Russ; idk if you read my analysis of the 80/40/20 on the other side, but I think our biggest need now is for a New Value System.

    People being as limited as we are, need some way of keeping score. A yardstick if you will of progress. The idea of throwing off the harness may be fine for some of us, but most people would be so disoriented by the lack of a definable structure that the result might be even worse that the present reality.

    Have you any ideas on this?

    Comment by Paul Repstock — March 10, 2011 @ 3:47 pm

    • Why does there have to be a lack of structure? If I could purge all relationships with capitalism and representative government from my life and keep only the anarchistic aspects, my life would still be very well-structured.

      The same is true for anyone who simply begins participating in politically and economically democratic actions. To use my favorite example, relocalization as a movement offers as much structure as anyone chooses. Indeed, it’s the only way of life where one would choose the amount and variety of structure one desired, as opposed to having it imposed upon one.

      The yardsticks can be developed there as well.

      Comment by Russ — March 10, 2011 @ 6:27 pm

  3. Paul, I would be happy to see people come to understand their dependence and lack of resilience, which should then solicit a natural desire for alternatives. The Sedgwick, ME food sovereignty declaration AR cited in the previous post is a step in the right direction.

    How about “keeping score” being a matter of success in getting out from under corporate predators? Can you pay off your car loan? There’s a point. Can you get rid of your car? There’s another point. Do you have alternatives for heating, cooking, clothing, basic medical care? Do you have back-up skills beyond your corporate job? Etc.

    One problem is that the “free market” crowd has taken over the framing, co-opting the term “freedom”. We need to take back the power of framing and express ourselves in terms of freedom FROM predation and destruction: freedom FROM corporations rather than freedom OF corporations.

    Comment by Lidia — March 10, 2011 @ 6:30 pm

    • Those are all good examples, Lidia.

      For example, people can write a list of all rents in their lives and then set goals for purging as many of them as possible.

      Comment by Russ — March 10, 2011 @ 6:33 pm

  4. After reading quite a bit re the founders opinions & this blog site-I’ve come to the conclusion that the Nullifiers & Confederates were right!The only thing in the way-is the brainwashing modern society has put on racism-which is a logical construct given scientific opinion on the importance of genes to capabilities & behavior Races are just conglomerations of like-genes.

    Comment by Natalie Golovin — March 10, 2011 @ 8:44 pm

    • There’s no scientific support for the notion that genes and “race” decree political and economic points of view and practice.

      Environment and acculturation/indoctrination are always far more important than heredity in all things.

      Of course, anyone who wanted to look for a hereditary malevolence would easily discover it, not in genetic inheritance but property inheritance.

      Comment by Russ — March 11, 2011 @ 5:40 am

  5. Here’s another encouraging sign:


    Firefighters lead run on bank that funded WI gov. Walker.

    P.S. Natalie, put a sock in it. Look at what conglomerating “like-genes” did to the Hapsburgs.

    Comment by Lidia — March 10, 2011 @ 9:47 pm

  6. I’m not arguing. But, none of you are dealing with the point I’m trying to make. Perhaps I’m not explaining well.

    We have a global population of 6-7 billions, of whom 4 billion could scarcely be harmed by any change. The remaining billion plus are the people who currently have all of the wealth, most of the freedoms, and most of the knowledge and education. The latter group are also the people who are most dependant on current structures in their daily lives.

    Given the historically tragic results of Anarchist experiments it is obvious to me that success is dependant upon involving a much larger proportion of the population this time. Most people’s martyr inclination is quite low.

    Therefore, to be viable, a new Anarchist movement needs to have a popular appeal. This means not only education but also motivation as in presenting an alternative that a large proportion of these valuable people can relate to. Weaning people of their dependence on corporate and government structure, will in my mind be impossible if they cannot see the value of an alternate way of life. Basing anarchism solely upon a denial of current structures is self limiting. People are not stupid. Many of them will see that a value system based upon how well we can live without dependence on debt, government, and corporations is regressive. It is an existence depending upon proving a negative. Or in cruder terms, it is exchanging one set of ‘boogey men’ for another. The sole difference is that this time we are defining the boogey men.

    That won’t work. Even if we were successful in convincing enough people of this course, the motivation would disappear as soon as the corporations collapsed. Within ten years people would forget the evils of the past structure.

    People are before anything animals, and animals have one common rational trait. That being; they do not expend energy or effort without motivation. To prevent a fairly rapid regression of an Anarchist state back to an Authoritarian state, one would need to lobotomize or in some other manner, remove all aggressive traits from human beings. I don’t see that happening. (I hope)

    That is why I ask for help in finding a “New system and measure of value”. We need a “Value System” which is intrinsic to our humanity so that it cannot be sold, stolen, or hijacked in any other manner.

    For any who may question my reluctance and commitment: let me assure you, that there is not one person in ten thousand who is as capable of living without governing structures and modern infrastructure. But that would serve no purpose if the bulk of humanity was left to crumble. There is nothing noble or heroic in my position, strictly a rational acceptance the my time is brief and my individual experience is of little importance if I cannot pass something of value to future generations.

    Comment by Paul Repstock — March 10, 2011 @ 10:03 pm

    • I liked the way you explained it the first time.

      The vast majority of people just want to know what the rules are and be left alone to live within those rules (and they do fine, actually). Value systems are rule sets, nothing more.

      Fact it, I actually think the vast majority of people (at least within any single nation) also share a value system that transcends the current polarized debate that pits people who are far more alike than different against one another. Maybe we if we articulate what that common value system is, all the manipulation will lose its power.

      Comment by Tao Jonesing — March 10, 2011 @ 10:18 pm

      • hat has a good bit of appeal to me. A nice compact set of rules, in language that all can understand. Something that is available to all and is not subject to ammendments and exemptions. At least then there would be a social foundation and a sense of certainty to build upon. atm, everything is built on a sand dune which changes shape every time the wind switches.

        As to the possibility of different nations having diffrent rules, the ‘cultural diversity’ might be the best argument for the continuation of nation states. So long as the right of movement was garranteed, people could “vote with their feet.

        Comment by Paul Repstock — March 10, 2011 @ 11:11 pm

      • “Basing anarchism solely upon a denial of current structures is self limiting. People are not stupid. Many of them will see that a value system based upon how well we can live without dependence on debt, government, and corporations is regressive. It is an existence depending upon proving a negative.”

        Paul- there are numerous detailed treatises on participatory economics and the proposed structures of various anarchist alternatives to the capitalist organization of our society. The corpus of anarchist thought contains complete descriptions of how economies can be organically organized, federated, and democratically governed. The problem most people have with anarchist thought isn’t that it doesn’t present a clear alternative to the current set of “rules” (if our economies and governments can even be minimally described as rulebound anymore). The problem that most people have with it is that the first rule is “do it yourself”. It’s not that the rule set needs to change, its that people need to start taking responsibility for their own lives and stop waiting for cues from the kleptocrats and assorted corporatist trash who are ostensibly running things.

        I actually intended to send you a parecon text I was reading, but I couldn’t find it when I searched for it again. I’ll let you know if I dig it up again.

        Comment by paper mac — March 11, 2011 @ 12:44 am

      • Ok, thanks in advance…:)

        I can use all the help available.

        I couldn’t agree more on ‘taking personal responsibility’. But, it may take one terrible shock to move mankind in that direction. I estimate we have been ten thousand years sliding under the wing/heel of authority. Daylight might be grudgingly embraced.

        Comment by Paul Repstock — March 11, 2011 @ 2:56 am

      • I understand you, Paul, and I agree. I never said it would be easy to provide the affirmative to go along with and transcend the negative.

        Tao’s right about the need to be clear on values, because so much of the problem involves confusion of values. It goes back to the original founding acts: What is freedom? What is happiness?

        We know how in practice the whole US system, including the terminology, was hijacked toward a doctrine which cast these only in terms of profit-seeking and property.

        The Framers themselves seemed to have an ambivalent view, consciously laying the groundwork for this in parts of the written Constitution, but also choosing to exclude corporations on explicit anti-monopoly grounds.

        By now we know that the commodification of everything and the monstrosity of homo economicus lead only to dispossession and tyranny.

        So we need to promulgate a redeemed vision of freedom and happiness as being public democratic values, not fancy names for private greed.

        BTW, I’m still uncertain about the term “anarchist”. Since it’s just a synonym for democratic, yet the one term conjures mostly positive associations, while the other is alleged to be viewed negatively, maybe the latter should be the preferred term.

        That seems especially apropos for my case, since unlike others I’m deriving anarchism/democracy directly from the historical American Revolution, with only some supplement from Europe.

        Comment by Russ — March 11, 2011 @ 6:04 am

    • Paul, you say people’s “martyr inclination is low”, yet I see people who are crucifying themselves on the cross of consumer acquisition and debt, and they undertake that via Crucis with far fewer qualms than those of the Jesus character.

      Weaning them away WILL be impossible if they cannot see it, you’re entirely correct. People will have to see it on their own. As Russ points out, some personal responsibility needs to be taken. I wouldn’t worry inordinately about saving the part of humanity that is not interested in saving themselves.

      I think your comment about motivation is worth examining, though. Of the people caught up in a modern debt-slave existence, do you think they are motivated by positive rewards they experience via the system, or do you think they are motivated by fear? I would hazard that they are motivated by fear: fear that others will think they are losers if they don’t have the latest clothes, cars and gadgets, fear that their children will be failures if they don’t go to the most expensive schools and play the most equipment-intensive sports, if they don’t take edifying vacations to Europe or go on safaris in Africa, if they don’t rack up the right after-school activities. Then there are the more well-founded fears: fear of losing their job or their home, fear of losing health insurance.

      Since my understanding is that she is ruled by fear, I have no problem in using the fear button in explaining to my RWNJ sister, without exaggeration, that the battle between “you”, suburbanite, and corporations is a battle of life and death. Mathematically and legally, they are bound not to stop; they can’t and won’t stop until “you” take their power away. The positive rewards will be freedom from fear: the fear that corporations (insurers, the media, the defense industry) create to extract wealth from the Fodder Units.

      Paul, do you have even one or two examples of what you have in mind as universal “values” intrinsic to humanity? Just to help us along?

      I’m trying to figure out to what degree values can be innate as opposed to being cultural constructs.

      One “value” that I have come up with is Honesty. I think that’s a pretty universally-appreciated trait, at least nominally. Yet many societal activities (war, religion, education, business) require dishonesty. Can people be made to honestly see themselves as dishonest? And then change their behavior? (I don’t know if this line of thought is going anywhere…)

      Comment by Lidia — March 11, 2011 @ 8:36 am

      • What you say about martyrdom is similar to a thought I often have. If you think about it, it’s capitalism which expects total altruism from the victims of its theft. Indeed, as I said yesterday in one of the other comment threads, capitalism is completely dependent upon an immeasurable amount of anarchistic, cooperative behavior from its employees. If we all started Working to Rule and purging all non-capitalistic behavior from everything we do, the system would collapse in a day.

        The perfect goal would be to cooperate in all our relationships among ourselves, while taking a pure Work to Rule attitude toward corporations and government.

        I agree that the right use of fear has to be part of the mix (though people have argued with me about that before). The key is to replace FDR’s “fear itself, nameless fear”, unfocused fear which is so easily misdirected by the enemy,with fear rationally focused on the enemy and only the enemy. Fear can be managed and overcome once it’s correctly focused. Then we replace the fear with rage and resolve.

        I’d love to discover a way to value things like Honesty in themselves, although as you say such things tend to be more or less valuable depending on the context and the cause for which they’re enlisted. Honesty, at least, by definition has to be on the side of what’s right. (Why would anyone lie by choice if he weren’t planning something wicked?)

        On the other hand, values like Courage and Loyalty are excellent in a good cause but can be perverted by a bad one. And we see how badly the ideals of liberty and the pursuit of happiness have been abused.

        Comment by Russ — March 11, 2011 @ 9:33 am

  7. […] […]

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  8. […] this, for example the notion of a corporation having Constitutional rights, is an example of the solecism of sovereignty, a sovereign over sovereigns, a self-contradiction of the concept of sovereignty itself. We see […]

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  9. […] is fundamentally anti-constitutional, at a level far more elemental than any written constitution. Corporations and globalization are anti-sovereign. The secession of the elites is anti-American (and anti-every country) and anti-human.   […]

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  10. What the heart has once owned and had it shall never lose.

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  11. […] globalization cadres are non-sovereign in principle, and must be eradicated as they are invariably anti-sovereign in practice.)” . I think the subject matter here is especially interesting in the way it […]

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