Corporations Power without responsibility

JOHN WARD

Noel Pearson’s compelling comments in the Monthly, on managerial condition of: power without responsibility, stemming from times before the Boston Tea Party.
The Declaration of Independence in 1776 freed Americans not only of the British monarchy, but also British chartered corporations. However, it only took a couple of hundred years of legal manoeuvres and crooked judges to overturn the Declaration of Independence and put the corporate directors back in the driver’s seat.

It was a foul obscenity that they misused the 14th Amendment, (which was meant to grant citizenship to former black slaves), they could not argue for ‘Citizenship’ for corporations so they invented “Personhood.”

The reasons corporations decided to create such a legal fiction as personhood can only be understood by reading of the rise of large-scale capital in the period before and after the American Civil War.

The northern industrialists were hampered by the fact that the US legal system leant toward the rights of individuals and, did not allow for the kind of organisation that was needed for the consolidation of control over the rapidly emerging industrial system.

The personification of the corporation was their solution to this problem.

The legal argument made before the Supreme Court on behalf of corporate personification was based on a lie perpetrated in December of 1882, in the case of San Mateo v. Southern Pacific Railroad.
The lawyer who lied was Roscoe Conkling, a former United States Senator.
Conkling had served on the congressional committee that drafted the Fourteenth Amendment.

He (Senator Conkling), claimed that, according to his copy of the committee’s journal, the original intention was that the amendment should apply to corporations as well as to human beings.
Some decades later his journal was published. It showed that Conkling’s claim was, as a contempory authority on the history of the Fourteenth Amendment has put it, “a deliberate, brazen forgery.”

In 1886, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the US Constitution made no mention of corporations, it was a clear case of the Court’s taking it upon itself to rewrite the Constitution.

Far more remarkable, however, was that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument.

According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of argument in the case of Santa Clara County v. Southern Pacific Railroad Company that, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

The court reporter duly entered into the summary record of the Court’s findings that;
“The defendant Corporations are persons within the intent of the clause in section one of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws”.

Thus it was that a two-sentence assertion by a single judge, Justice Waite, elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery — a status explicitly forbidden by the Thirteenth Amendment to the US Constitution. So, is a corporation a person illegally held in servitude by its shareholders?
Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders?

This contradiction has never been directly addressed by the courts, In the United States, or here in our own High Court.

Even at the time it was considered extraordinary that the Court did not state its reasoning for such an important statement. But then they would have had to expose to public scrutiny a blatant legal fabrication.

In 1938 Justice Hugo Black noted that of the cases in which the Supreme Court applied the Fourteenth Amendment during the first 50 years after Santa Clara, “less than one-half of one percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.”

Since 1960 the Supreme Court has granted to corporate persons the right of free speech — especially political speech — under the First Amendment, protection against double jeopardy under the Fifth Amendment, the right to counsel under the Sixth Amendment, and the right to a jury trial under the Seventh Amendment.

In a letter from Lincoln to (Col.) William F. Elkins, Nov. 21, 1864

“We may congratulate ourselves that this cruel war is nearing its end. It has cost a vast amount of treasure and blood. . . It has indeed been a trying hour for the Republic; but I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money
power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.
I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war.
God grant that my suspicions may prove groundless.”

From p. 40 of ‘The Lincoln Encyclopaedia’, by Archer H. Shaw (Macmillan, 1950, NY). That traces the quote’s lineage to p. 954 of Abraham Lincoln: A New Portrait, (Vol. 2) by Emanuel Hertz (Horace Liveright Inc, 1931, NY).

Perhaps the following quote will show that the concern Lincoln expressed, was held even earlier by another President..
“I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
Thomas Jefferson, President of the United States, 1812.

If the corporation powers are dubious, and remember, parts of our Constitution are base on the US model. Does this mean the Australian corporation powers are based on a legal decision made without argument and based on a lie?
Does this mean the Corporations powers in our Australian Constitution; are fruit from a poisoned tree?

What a gross irony. That the14th amendment, created to ensure all ex-slaves would have equal rights as citizens was used by John Howard to strip workers of rights 150 years later.

So you can see how directors hide behind the company name and pay themselves and do whatever they want, while avoiding personal legal action.

I believe that some corporations are actually the victims of the crooks who control and manage their affairs, not for the good health and long life of the organisation, but to feather their own rotten nests.

For example, where there are healthy organisations that are focused on quality, service to customers, strong relationships with suppliers, long-term vision and goals, and serving the shareholders, you will find dedicated and professional executives and board members.

On the other hand collapsing companies demonstrate an anti social corporate psychosis of extremes in behaviour and relationships, including the plunder they take out of the corporate treasure chest.

This goes a long way to explain the present collapse of the Global Corporate System.

It is interesting, is it not, that the corporate directors who have out sourced their operations to cheap labour countries, are the ones who are now putting on Golden parachutes and baling out before the Company crashes?

Less than 14% of Australian managers have any formal training in management or leadership. They simply know how to operate the politics of an organisation to climb the corporate ladder.

Now let’s consider Occupation Health and Safety.

Until corporate owners and officers are held liable for all the harm they cause, we will remain disadvantaged by the law as it stands.

For example a number of Gunns executives and board members in Tasmania, have been taken
to court by Work Safety authority and used their corporation’s ‘personhood’ to avoid their responsibilities.

In this case a worker had the tips of his fingers cut off because a safety guard was removed from the machine he was operating.

The Gunns directors were able to establish that they were not the ‘employer’. Then shifted the blame to the corporation as the ‘legal person’ responsible.

They pleaded not guilty on their own behalf but made the corporation plead guilty and apologised on Gunns behalf to the worker, and then on behalf of Gunns wrote a cheque to pay the fine.

Finally they had the corporation sue the work safety authority for their individual court costs because they themselves had not been found guilty and therefore not responsible for safety in anyway in the workplace.

So we now have the situation that no living, breathing human can be made accountable for their actions or inaction in relation to Occupation Health and Safety or any other corporate behaviour for that matter, like getting the ‘Legal entity’ (the good old Corporation) to pay them salary and bonuses beyond reason.

By not acting, John Howard allowed the cost of injury and death in the work place to spiral from
$27 billion in 1995 to $57.5 billion in 2005. That’s $30 billion of waste and mismanagement from the people who claim they know how to run a small business!!!
If we could save a quarter of that we would have enough to fund the savings we need for our defence spend.

The latest report [‘The Cost of Work-related injury And Illness for Australian Employers, Workers, and the Community’. ISBN 978 0 642 32801 4 PDF, March 09 for 05-06], clearly illustrates just how the corporations have been able to play one Australian state off against another, driving down standards and the costs to industry and passing costs off to our society.

The official figures show just how successful they have been, when the employers were paid only $1.9 Billion costs in 2005-2006 compared with the workers share at $26.03 billion with the rest of society carrying the cost at a cool $29.49 billion.

My god, the death toll of 1790 killed directly and by work related diseases is higher than the road toll and more than all the troops we have overseas.

If we were losing 34 soldiers a week in Afghanistan we would be in deep mourning.
So why is this any different?
On top of that fully incapacitated or seriously wounded, (using the army analogy) of 39,510 or 780 a week would mean a catastrophic military blunder.
So why are we accepting such figures at the hands of short term political thinking state premiers and their corporate masters?
Because no one pays attention, except for those bloody unions John Howard wanted us to despise.

As a result we have let ourselves become victims of the Corporations that Abraham Lincoln was so concerned about.
Seems to me, he foretold the current events accurately, and what’s more the whole world ought to have another revolution, write a new Declaration of Independence and rip away the unbounded power these corporate ‘persons’ have taken upon themselves.

John Ward
Gordon
Tasmania
7150

Data From ‘The Cost of Work-related injury And Illness for Australian Employers, Workers and the Community’. ISBN 978 0 642 32801 4 PDF

Year 2000-01 $ 34 billion or 5% of GDP

In year 2005-2006 $ 57.5 billion or 5.9 of GDP

http://www.safeworkaustralia.gov.au/NR/rdonlyres/EAD5247E-98E7-4750-A35E-A6BC9B1E7781/0/CostsofWorkRelatedInjuryAndDisease_Mar2009.pdf