Daniel Webster
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winkler
https://kpfa.org/episode/letters-and-politics-may-16-2018/
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webster hired by corps, won them rights?
pbs newshour
5 advocates and crusaders who helped define corporate rights
Arts Oct 29, 2019
“We the Corporations” by Adam Winkler is our October book club pick. Become a member of the Now Read This book club by joining our Facebook group, or by signing up to our newsletter. Learn more about the book club here.
Long before there were calls to break up Silicon Valley’s biggest companies such as Facebook and Google, or Sen. Elizabeth Warren, D-Mass., made trust-busting those companies central to her 2020 presidential campaign, long before the Supreme Court’s Citizens United decision in 2010 and Mitt Romney’s declaration that “corporations are people, my friend,” corporations had gained significant rights and powerful influence in the United States.
In “We the Corporations,” this month’s book club pick, UCLA law professor Adam Winkler chronicles the long history of the corporate rights movement. Winkler argues that in fact the fight for corporate personhood goes back to the very founding of the United States.
Below, he details five people who had particular impact in the corporate rights movement, from the man who declared that corporations should be protected against unreasonable searches and seizures, to another who argued they should have the same rights as former slaves. In his words:
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Daniel Webster
Legendary senator, orator and lawyer, Daniel Webster argued more than 200 cases in the early Supreme Court and earned the nickname “Defender of the Constitution.” He could alternatively have been called the Defender of the Corporation. Many of his clients were businesses, and in one of his most important cases he won a ruling from the Supreme Court in 1819 declaring corporations to be private entities over which states had limited regulatory control.
Roscoe Conkling
Roscoe Conkling was the last person to decline a seat on the Supreme Court after having won confirmation; he was simply making too much money as a lawyer for the railroads. Representing the Southern Pacific Railroad, Conkling argued in an 1882 case that the 14th Amendment, adopted after the Civil War to protect racial minorities from discrimination, was also meant to protect corporations. Conkling had unusual credibility because he was one of the drafters of the 14th Amendment, but we now know that he misled the Supreme Court about the history of the provision.
Theodore Roosevelt
President Teddy Roosevelt’s famous effort to break up the trusts led to some of the earliest prosecutions of corporations for committing crimes. The corporations behind the trusts fought back, arguing that if corporations could be convicted of crimes then they should be afforded the many protections in the Constitution for criminal defendants. In a case involving Roosevelt’s investigation of the Tobacco Trust, the Supreme Court declared that corporations, like people, are protected against unreasonable searches and seizures.
Ralph Nader
In the 1970s, consumer crusader Ralph Nader and his public interest organization Public Citizen won a landmark case striking down limits on the advertisement of prescription drug prices. Although Nader’s goal was to help patients find the cheapest medicine, his victory would be the basis for a broad expansion of the rights of businesses to advertise under the First Amendment. Corporations would use that right to challenge graphic cigarette labels, disclosure requirements, and limits on tobacco ads – leading the recent head of Public Citizen to call for overturning the entire line of cases stemming from Nader’s victory.
Lewis Powell Jr.
Months before being nominated to the Supreme Court, Lewis Powell Jr. wrote an influential memorandum to the Chamber of Commerce outlining a program for business to fight back against the rising tide of consumer protection and environmental laws. Businesses, Powell argued, needed to become more politically active and use the courts to protect the free market. As a justice, Powell would transform his memorandum into constitutional law, leading the Court to declare for the first time that corporations had a First Amendment right to influence elections – 30 years before Citizens United brought the issue to the public’s attention.
long before the controversial 2010 Supreme Court ruling Citizens United, which allowed corporations to spend money to influence elections, the court had already granted corporations many of the same rights as people.
One early and particularly surprising case was the Southern Pacific Railroad’s successful move to win equal protection and due process rights under the 14th Amendment — an amendment that was aimed at protecting former slaves.
Meanwhile, African Americans would not see real protections from that amendment for decades to come.
In “We the Corporations,” this month’s book club pick, UCLA law professor Adam Winkler explores the long fight for corporate rights. Below, Winkler annotates a page of the book that details just how the Southern Pacific Railroad leveraged a progressive reform to meet their own ends
..."the Fourteenth Amendment to the Constitution, adopted after the Civil War, is one of the brightest stars in the constellation of liberty. As everyone knew when it was ratified in 1868, the amendment’s guarantees of equal protection and due process were designed to secure the rights of the newly freed slaves and protect them from discrimination by the states. Nearly a decade and a half later, however, in December of 1882, the esteemed Roscoe Conkling told the justices the Fourteenth Amendment was also written to protect the rights of corporations like his client, the Southern Pacific Railroad Company.
Although no lawyer could approach Webster’s soaring rhetoric, Conkling was also known as a master orator and had the respect of the justices, as well as their ear. “No man ever came into our court who was listened to with more undivided attention than Roscoe Conkling,” said Chief Justice Morrison Waite, who presided over the Southern Pacific’s case. Justice Samuel Miller, whose previous opinions seemed to foreclose Conkling’s argument that the Fourteenth Amendment applied with equal force to corporations, nonetheless agreed that “for the discussion of the law and the facts of the case Mr. Conkling is the best lawyer who comes into our court.”
Conkling was the leader of the Republicans in Congress for nearly two decades immediately after the Civil War, when Republicans dominated Washington. A member of the House and then the Senate, Conkling was often rumored to be a presidential candidate. Although he never became his party’s presidential nominee,he was twice nominated to the Supreme Court. The second time was just months before he made his argument on behalf of the Southern Pacific. Even though the Senate voted to confirm him, Conkling declined, pleading poverty. Like Webster, Conkling, who spent his career in public service, needed the money—especially the kind a lawyer could make representing the Southern Pacific, one of the largest, most politically powerful corporations of the late nineteenth century.
Excerpted from pages 113-114 in Chapter 4 of “We the Corporations.