Model Brief to Eliminate Corporate Rights

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Model Legal Brief to Eliminate Corporate Rights

CELDF and Richard Grossman are making this “Model Legal Brief to Eliminate Corporate Rights” available to help citizen groups create winning organizing strategies--by stripping constitutional protections from corporations and preventing them from governing their communities.
Richard Grossman, co-founder of POCLAD, authored the brief with Thomas Linzey, Esq., Executive Director of the Community Environmental Legal Defense Fund, (CELDF) a public interest law firm in Chambersburg, Pennsylvania, and Dan Brannen, a Santa Fe attorney.

Hyperlink references courtesy of Dave Ratcliffe www.ratical.org.

Preface

This Brief is intended to assist communities organizing to challenge the United States government's gift of constitutional powers to property organized as corporations. Accordingly, this Brief is NOT about corporate responsibility, corporate accountability, corporate ethics, corporate codes of conduct, good corporate "citizenship," corporate crime, corporate reform, consumer protection, fixing regulatory agencies, or stakeholders.

IN THE UNITED STATES DISTRICT COURT FOR THE
___________ DISTRICT OF _____________

[CASE CITATION]

DRAFT -- NOT FOR QUOTING OR REPRINTING WITHOUT PERMISSION
OF THE AUTHORS.

BRIEF OF AMICI CURIAE

THE COMMUNITY ENVIRONMENTAL LEGAL DEFENSE FUND, INC.,
THE PROGRAM ON CORPORATIONS, LAW, AND DEMOCRACY, and
RICHARD L. GROSSMAN

SUPPORTING [PARTIES]

Thomas Alan Linzey, Esq. [1]
Daniel E. Brannen, Jr., Esq., Of Counsel
Community Environmental Legal Defense Fund, Inc.
2859 Scotland Road
Chambersburg, Pennsylvania 17201

Counsel for Amici Curiae Community Environmental
Legal Defense Fund, Inc. and The Program
On Corporations, Law, and Democracy

Richard L. Grossman, pro se

Table of Contents

Table of Authorities [omitted]

Summary of the Argument

I. It is Axiomatic That People Secure and Protect Their Inalienable Rights to Life, Liberty, Happiness, and a Republican Form of Government Through the Institution of Democratic Governments

II. Corporations are Created by State Governments as Subordinate, Public Entities Through the Chartering Process, and Thus Cannot Act to Deny People's Rights to Safety, Liberty, the Pursuit of Happiness, or a Republican Form of Government Within this Nation's Frame of Governance

III. Over the Past 150 Years, the Judiciary Has "Found" Corporations Within the U.S. Constitution, and Bestowed Constitutional Rights Upon Them

A.

"Finding" Corporations in the Fourteenth Amendment

B.

Corporations and the Bill of Rights

(1). "Finding" Corporations in the First Amendment

(2). "Finding" Corporations in the Fourth Amendment

(3). "Finding" Corporations in the Fifth Amendment

(4). "Finding" Corporations in the Contracts and Commerce Clauses

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

    A.

Corporate Personhood and the Denial of People's Inalienable Rights

    B.

Corporate First Amendment Rights and the Denial of People's Inalienable Rights

    C.

Corporate Privacy Rights and the Denial of People's Rights to Safety, Security, Health, and Welfare

    D.

Corporate Fifth Amendment Takings and the Denial of People's Inalienable Rights

    E.

Corporations Wielding the Contracts and Commerce Clauses Interfere With the People's Inalienable Right to Life, Liberty, and a Republican Form of Government

V. This Court Must Dismiss All Constitutional Claims Brought by [X] Corporation Against [Y] Government Because the Assertion and Validation of Those Rights Denies the People's Inalienable Rights, Including Their Right to a Republican Form of Government

VI. Conclusion

Footnotes

Summary of Argument

          The people of these United States created local, state, and federal governments to protect, secure, and preserve the people's inalienable rights, including their rights to life, liberty, and the pursuit of happiness. It is axiomatic that the people of these United States -- the source of all governing authority in this nation -- created governments also to secure the people's inalienable right that the many should govern, not the few. That guarantee -- of a republican form of government -- provides the foundation for securing people's other inalienable rights and vindicates the actions of people and communities seeking to secure those rights.
           Corporations are created by State governments through the chartering process. As such, corporations are subordinate, public entities that cannot usurp the authority that the sovereign people have delegated to the three branches of government. Corporations thus lack the authority to deny people's inalienable rights, including their right to a republican form of government, and public officials lack the authority to empower corporations to deny those rights.
           Over the past 150 years, the Judiciary has "found" corporations within the people's documents that establish a frame of governance for this nation, including the United States Constitution. In doing so, Courts have illegitimately bestowed upon corporations immense constitutional powers of the Fourteenth, First, Fourth, and Fifth Amendments, and the expansive powers afforded by the Contracts and Commerce Clauses.
           Wielding those constitutional rights and freedoms, corporations regularly and illegitimately deny the people their inalienable rights, including their most fundamental right to a republican form of government. Such denials are beyond the authority of the corporation to exercise.
           Such denials are also beyond the authority of the Courts, or any other branches of government, to confer.
           Accordingly, the constitutional claims asserted by the [x corporation] against [y government] must be dismissed because those claims deny the people's rights to life and liberty, and their fundamental right to self-governance.

Argument

I. It is Axiomatic That People Secure and Protect Their Inalienable Rights to Life, Liberty, Happiness, and a Republican Form of Government Through the Institution of Democratic Governments.

If there is one bedrock principle upon which the people of these United States established local, state, and federal governments, it is that governments are instituted to secure and protect the people's inalienable rights, including their right to a republican form of government.
As eloquently proclaimed by the Declaration of Independence,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. [2]

THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).

That principle, echoed by this nation's colonists throughout the Resolves of the Continental Congress, [3] early state Constitutions, [4] and the Articles of Confederation, [5] is reflected throughout the writings of Locke, Hume, Montesquieu [6] that the early colonists used to deepen and strengthen the American Revolution -- to frame their dispute as one in which the King and Parliament were incapable of providing a remedy premised on self-governance. [7]
The Revolution thus reflected the understanding that people, otherwise existing in a state of nature, do not relinquish their inalienable rights when governments are instituted, but that governments are instituted specifically to guarantee and protect those freedoms and rights. Thomas Gordon once summarized that fundamental principle in the form of a question, asking:

What is Government, but a Trust committed by All, or the Most, to One, or a Few, who are to attend upon the Affairs of All, that every one may, with the more Security, attend upon his own?

Thomas Gordon, CATO'S LETTERS, No. 38, July 22, 1721.

Early Americans used the U.S. Constitution to codify that understanding by declaring that a federal government would be formed by the States to protect and preserve people's rights, stating that:

We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America (emphasis added).

People struggling to drive civil rights for newly freed slaves into the Constitution following the Civil War fashioned the Fourteenth Amendment, which refers to inalienable rights as "privileges and immunities" of citizens. Through that Amendment, they sought to further guarantee the underlying principle -- that governments are instituted by people to protect rights -- by declaring:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST. amend. XIV.

Through the Fourteenth Amendment, the abolitionists constitutionalized the people's inalienable rights to life, liberty, and happiness, driving the principles of the Declaration of Independence into the Constitution. [8] As scholar Robert J. Reinstein explained:

[A] national political movement brought the Declaration of Independence "back into American life." The Declaration was the secular credo of the abolitionists. The Declaration not only supported their moral and political assaults on slavery but was the foundation of their constitutional theories. [9]

Thus, the founding documents of the States and the United States codify the understanding that governments are instituted to secure inalienable rights possessed by people, including their right to enjoy life and liberty, and the right to pursue and obtain happiness and safety. Underlying that principle is the belief that securing those freedoms and rights requires the institution of a republican form of government, and that the right to a republican form of government is a separate guarantee. [10] That right guarantees that the powers of governance are vested in the majority, not in the hands of a privileged minority who might seek to use government to attain private goals. [11]
In the words of delegates writing the first Massachusetts Constitution, "[n]o man, nor corporation, or association of men, [shall] have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community" and that if governments are subverted for the "profit, honor, or private interest of any one man, family, or class of men," then the fundamental principle underlying the institution of governments is usurped. [12]

           The cause of the American Revolution was the systemic usurpations of the rights of colonists by the English King and Parliament. [13] Those usurpations occurred primarily through the King's empowerment of eighteenth century corporations of global trade -- such as the East India Company -- and through Parliamentary Acts taxing colonial trade. Oft-cited as the final spark of the Revolutionary War, the Boston Tea Party was the direct result of colonial opposition to the East India Company's use of the English government to enable the Company to monopolize the tea market in the colonies. [14]
           The signing of the Declaration of Independence transformed crown corporations and royal proprietorships into constitutionalized states. Elected State legislators, possessing personal knowledge of the power of English trading corporations, [15] worked to ensure that corporations within the new nation would be controlled and defined exclusively by legislatures. [16]
           Accordingly, people made certain that legislatures issued charters, one at a time and for a limited number of years. [17] They kept a tight hold on corporations by spelling out rules each business had to follow, holding business owners liable for harms or injuries, and revoking corporate charters. [18]
           Side by side with control and authority over corporations -- exercised through their elected legislators -- the people experimented with various forms of enterprise and finance. Artisans and mechanics owned and managed diverse businesses; farmers and millers organized profitable cooperatives; shoemakers created unincorporated business associations. [19] Towns routinely promoted agriculture and manufactures. They subsidized farmers, public warehouses, and municipal markets, protected watersheds, and discouraged overplanting. [20]
           Legislatures also chartered profit-making corporations to build turnpikes, canals, and bridges, declaring that corporations could only be chartered for "public purposes." [21] By the beginning of the 1800's, only some three hundred such charters had been granted.
           Many people argued that under the Constitution no business could be granted special corporate privileges. Others worried that once incorporators amassed wealth, they would control jobs and markets, buy the newspapers, and dominate elections and the courts. [22]
           Premised upon the widespread public knowledge of the powers wrought by English corporations and the people's opposition to them, early legislators granted few charters, and only after long, hard debate. Legislators usually denied charters to would-be incorporators when communities opposed the proposed corporation. [23]
           People shared the belief that granting charters was their exclusive right. Moreover, as the Supreme Court of Virginia reasoned in 1809, if the applicants'

object is merely "private" or selfish; if it is detrimental to, or not promotive of, the public good, they have no adequate claim upon the legislature for the privileges.

Morton J. Horwitz, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 112 (1977).

           States limited corporate charters to a set number of years. Maryland legislators restricted manufacturing charters to fifty years, and most others to thirty. Pennsylvania limited manufacturing charters to twenty years. Unless a legislature renewed an expiring charter, the corporation was dissolved and its assets divided among shareholders.
           Citizen authority clauses dictated rules for issuing stock, for shareholder voting, for obtaining corporate information, for paying dividends and keeping records. They limited capitalization, debts, land holdings, and sometimes profits. They required a company's accounting books to be turned over to a legislature upon request.
           Interlocking directorates were outlawed. Shareholders had the right to remove directors at will. Some state laws required banks to make loans for local manufacturing, fishing, and agricultural enterprises, and to the states themselves. Banking corporations were forbidden to engage in trade. Most state legislatures provided that directors and stockholders remained personally liable for debts and harms caused by their corporations. One corporation could not own another, or own shares in other corporations. In short, corporations were nothing more than what the people defined them to be through legislation, and possessed only those rights granted by such legislation. [24]
           The people of these United States did not want business owners hidden behind legal shields, but in clear sight. As the Pennsylvania legislature declared in 1834:

A corporation in law is just what the incorporating act makes it. It is the creature of the law and may be moulded to any shape or for any purpose that the Legislature may deem most conducive for the general good.

Carter Goodrich, THE GOVERNMENT AND THE ECONOMY, 1783-1861 374 (1967).

           People believed that when a corporation subverted the fundamental purpose for which governments were instituted, legislatures should dissolve the corporation. Accordingly, all states adopted corporate charter revocation laws to codify the common law writ of quo warranto ("by what authority") -- not only to revoke the charters of specific corporations, but to recognize that a corporation exceeding its limited authority injures the entire body politic. [25]
           This short history of corporations in these United States reveals that corporations -- because of the American revolutionaries' successful resistance to illegitimate rule -- were chartered as merely one of many subordinate, public entities used by the people to achieve the fundamental purposes for which governments were instituted.
           It is well settled law that corporations are creations of the state. [26] The United States Supreme Court has reaffirmed the principle that corporations are "creatures of the state" in at least thirty-six different rulings. [27] It is also well-settled law that the Constitution not only protects people against the "State itself," but also against "all of its creatures." See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943).
           As public creations, corporations lack any authority within this nation's frame of governance to deny people's inalienable rights to life, liberty, safety, security, health, and freedom, or to interfere with the operation of the people's republican governments.

III. Over the Past 150 Years, the Judiciary Has "Found" Corporations Within the U.S. Constitution, and Bestowed Constitutional Rights Upon Them.

           Over the past 150 years of existence of the United States, the judiciary has conferred constitutional protections -- once intended to protect only natural persons -- upon corporations. The method by which the judiciary has conferred rights upon corporations has consisted of "finding" corporations in the Fourteenth Amendment, the First Amendment, the Fourth Amendment, the Fifth Amendment, and Contracts and Commerce the Clauses of the Constitution. [28]

           A. "Finding" Corporations in the Fourteenth Amendment
           After political expedience convinced Abraham Lincoln to use the Civil War to outlaw slavery, people forced the federal government to pass the Civil Rights Act of 1866 and constitutional amendments to give rights to newly freed slaves, which the drafters of the Constitution failed to define as "persons." [29] Adopted in 1868, Section 1 of the Fourteenth Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The guarantees of the Fourteenth Amendment have been expanded to include a litany of personal liberty rights. [30]
           Working for corporate clients enriched and empowered by the Civil War, lawyers began persuading judges to use the language of the Fourteenth Amendment to overturn state legislation originally intended to subordinate corporations. Their efforts led to a transformation of the law, undermining the republican frame of governance. As Justice Brennan has declared, "by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis." Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 687 (1978).
           In San Mateo v. Southern Pacific R. Co., 13 F. 722 (C.C.D. Cal. 1882), corporate lawyers attacked a provision of the California constitution that assessed property taxes against railroad corporations differently from assessments for non-corporate properties. Attorneys for the railroad companies argued that by taxing their property differently from the property of natural persons, California violated corporate "rights" secured by the Equal Protection Clause of the Fourteenth Amendment.
           When the case reached oral argument in the Supreme Court in 1885, Roscoe Conkling, a former member of the joint congressional committee that had crafted the Fourteenth Amendment -- and lawyer for the Southern Pacific Railroad Company -- suggested to the Court that the committee had corporations in mind when it put pen to paper in 1866: "[a]t the time the Fourteenth Amendment was ratified," Conkling alleged, "individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes." Conkling then intimated that the drafters of the Fourteenth Amendment had purposely used the word "persons" -- instead of "citizens" -- to specifically shield corporations from those State and local taxes. [31]
           The parties settled San Mateo before the Supreme Court announced a decision. During oral argument in another California railroad taxation case several years later, Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), Chief Justice Morrison Waite accepted Conkling's proclamation, declaring:

[t]he Court does not wish to hear arguments on the question whether the provision of the 14th Amendment to the Constitution which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to corporations. We are all of the opinion that it does. [32]

           Three years later, the Court "found" corporations in the Due Process Clause of the Fourteenth Amendment and bestowed Due Process protections upon corporations. Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889). The inclusion of corporations within the Equal Protection and Due Process Clauses of the Fourteenth Amendment, however, has been challenged by even Supreme Court jurists. [33]
           Thus, at least from the standpoint of Supreme Court caselaw, did corporations become "persons" under the Constitution, empowered to wield corporate Due Process and Equal Protection rights under the authority of the Fourteenth Amendment, just like natural persons. Attempts by the legal community to justify those conferrals paralleled those judicial developments. [34]

           B. Corporations and the Bill of Rights
           Prior to the submission of the to state legislatures for ratification, eight states had already prefaced their own Constitutions with a Bill of Rights. Accordingly, many states conditioned their ratification of the Constitution upon the addition of a Bill of Rights to the document. [35] In 1789, state delegates succeeded in amending the U.S. Constitution with a Bill of Rights that prohibited the federal government from interfering with crucial individual freedoms, including the freedoms of speech, assembly, and petition, protection from unreasonable searches and seizures, and the right to due process in criminal trials.
           As Franklin Delano Roosevelt once keenly observed, "the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities." The Public Papers and Addresses of Franklin D. Roosevelt 366 (1941).

           (1). "Finding" Corporations in the First Amendment
           The First Amendment to the U.S. Constitution declares, in part, that governments shall "make no law. . . abridging the freedom of speech." U.S. CONST. amend. I.
           In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court "found" corporations in the First Amendment when the Court threw out a Massachusetts law that prohibited corporations from spending money to influence legislation unrelated to their business. The ruling nullified the laws of thirty states that had adopted similar legislation. [36]
           Dissenting in Bellotti, Justice White described the impact of this decision:

It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process . . . . The State need not permit its own creation to consume it.

Bellotti, 435 U.S. at 809 (White, J., dissenting).

           Courts since Bellotti have explored the contorted metes and bounds of political, [37] commercial [38] and negative corporate [39] 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.

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 slavery [51] 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 1983 [53] 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 rights [60] -- 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 AMENDM