Saturday, February 11, 2012

Is The USA The Only Nation in the World With Corporate Personhood?

by Rob Kall

It's not surprising to learn that no nation on earth enshrines in its constitution the right of corporate personhood. 

Mila Versteeg, associate law professor at the University of Virginia,  is probably the only person in the world to have read every constitution that has been written since 1946--  constitutions from 186 nations. She's not only read them, she's quantified them, in terms of the rights that they define. That was part of a project she did while at Oxford

That led to the NY Times publishing an article, "We The People" Loses Appeal With People Around the World  based partly on the work of her and her colleague, David Law, professor of Law at Washington University

That NY Times article reported on the finding of Versteeg and Law that, while 30 or more years ago, the US Constitution was highly regarded, things have changed. The Times article cited a journal article remark by Law and Versteeg, "Among the world's democracies," Professors Law and Versteeg concluded, "constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s."

That article inspired me to interview Law and Versteeg on my Bottom Up Radio show

They explained that the US with the oldest constitution, probably has the hardest to change constitution in the world, suggesting that it has become fetishized, with constitutional fundamentalism based on "textualism" and "originalism" which Justices Scalia and Thomas both advocate. 

They explained that, with a constitution so hard, perhaps impossible to revise, the way that adjustments are made is through the opinions and decisions of the Supreme Court, and how that body has become far more powerful than in the early days of the nation. 

It was connivance by a former railroad company president, Bancroft Davis, who, changed jobs to become a Supreme Court Clerk who wrote a headnote that came to be viewed as the key verbiage that led to the setting of precedent on corporate personhood. 

Since then, the US has accepted that corporations have the same rights as persons as defined by the 14th amendment. 

I asked professors Law and Versteeg, "Are there other nations where corporations are given similar rights to people?"

Professor Versteeg replied, "I'm probably the only person in the world who's read all the constitutions and  I don't think it's something that's in the constitutions."

Next, I asked, "So, from what you know, having looked at 186 foreign constitutions, none of them offer corporate personhood rights."

Versteeg replied, "I’m pretty sure that none of them do and also, foreign constitutions tend to be more explicit.  They can be 400 pages long and I haven't seen any of that and I'm pretty sure about it."  

Professor Law added, "It is quite popular in other countries to have some kind of restriction in the constitution on property rights, how property can be used. Property rights have to be consistent with social welfare. You can't use property in such a way that it harms society. If you think of a corporation as a bundle of property rights, those specific clauses provide a basis for regulating corporations.   You don't have that kind of a limitation in the US constitution on property rights. There is more of a constitutional basis for regulation corporations than there is in this country."

Professors Law and Versteeg added the caveat that corporate personhood is not a right that is part of the US constitution and that it could be, like in the US, something that a court in another nation added. But they also pointed out that most nations revise or replace their constitution, on the average, every 19 years. That means that supreme courts have much less influence on the laws of most nations. 

Versteeg and Law also discussed how the US constitution, so rigidly enshrined and "fetishized," has become treated in a Catholic way, like a "sacred document," not to be questioned. 

Currently, there are a number of bills in various stages in congress aimed at ending corporate personhood. Perhaps the sponsors would benefit from looking at the constitutions of other nations-- so language and law ideas on restricting corporate abuse of property, or corporate abuses period, might be adopted. Then again, in the US, the constitution has become a fossilized religious phenomenon that people are afraid to touch, handing the power to change laws over to the Supreme Court. If that is the reality, perhaps it is time the elected elements of the three parts of the balance of power in government take a hard look at just how important it is to change the constitution. Ironically, Thomas Jefferson literally suggested that the constitution should be re-written every 19 years. It's hard to imagine how he could have conceived of an idea that research statistics now support has become the exact average number of years that most nations go between revising their constitutions. 

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