Here’s Your Original Intent, Pal
Sep 16th, 2005 at 5:21 pm by Susie
David A Snyder writes Eric Alterman to say:
I guess I need to read Prof. Sunstein’s book as the review is missing a key criticism of originalism which has implications for our modern economy: at the time of the establishment of our Constitution, the idea of a stock-holder owned corporation was quite controversial. A significant number of the Framers of our Constitution abhorred the idea of a stock-holder owned corporation — a later President, Andrew Jackson, criticized them as having “neither bodies to kick nor souls to damn”. A thorough-going originalist would indeed throw out any lawsuit involving a corporation as many of the Framers would have been appalled by a corporation having legal standing to sue or be sued in a court of law. On the other hand, such an originalist would be quite willing to allow someone who felt he was wronged by a company to sue every single stock-holder in the company given that, as owners of the company, they are responsible for what the company does. I am sure that the many political conservatives who own stock would not be happy with a true originalist judge who would allow them to be sued for actions of the companies in which they own stock.
Well, yes. This is also the point of Thom Hartmann’s book “Unequal Protection,” in which he makes a compelling argument that the court decision which granted corporations rights as humans under the law was not only fradulent, but directly opposed to the intent of the Founders.
That decision, of course, led us to the present-day state of government for sale.
Of course the kind of stock holders that they were thinking of in those days was a small group of investors active (usually) in controlling the company.
Modern stock holders have little say in the running of large companies, unless they are the (near) majority holder (ie; Microsoft and Gates).
The management and the board are the ones that need to be held accountable these days.
The originalists don’t really care a fig about The Founders’ original intentions. They are merely looking for a mechanism to advance their regressive right-wing agenda.
I’m a little suspicious about whether Founders would have been comfortable with an individual being able to sue each and every shareholder. Let’s not forget that many of the colonies were either founded by corporations or had prominent limited liability corporations within their state. New Jersey, for instance, had the Board of Proprietors, a corporation which held title to all of the unapportioned land in the state. In fact, the Board of Proprietors did sue as a corporate entity in court (the most famous instance being the so-called “Bill in Chancery,” which was a massive suit against Newark landholders challenging the validity of their title, which was acquired from a source other than the Board. This was done at around the time of the founding, though I confess I can’t immediately recall whether it was pre- or post-revolution.
I can’t claim the same extensive research as Messrs. Hartmann and Sunstein, but I would need to see a LOT of evidence to be convinced of their position.
Having read Hartman’s book…He discusses the colonists’ attitude toward the corporations at the time of the Revolution. The Founding Fathers were concerned that England was granting privileges to corporations that restricted the free trade of individuals who did not have the high level government connections as those participating in the corporations. There certainly were corps, but people viewed them with suspicion. Hartmann makes the case that most of the economic grievances were directed toward the corporate privileges.
The most important part of the book, however, and the most interesting, is the means by which corporations gained the status of “persons”, giving them the same rights that we have but also the privileges built into the corporate law.