Famous author and historian Charles Beard wrote these words in 1936, in Chapter 1 of “Jefferson, Corporations and the Constitution” originally published in The Virginia Quarterly Review. Here’s a brief excerpt:
… Now there is abroad in the country a common theory to the effect that the American Revolution was made and the Constitution established for the sole and express purpose of realizing grand conceptions of human rights. Are they not set forth in the Declaration of Independence? Are not the people to enjoy forever life, liberty, and the pursuit of happiness? Is not the welfare of the governed the supreme end of all governments? Are not monopolies and special privileges incompatible with the rights of natural persons? Is not opportunity for each individual to make his way in the world a precious value to be defended against every effort to close it? Man is born free; he is in chains; he is to be liberated. Was not this philosophy celebrated in the dominant thinking of the revolutionary age?
Moreover, is not this theory of human rights written large in the state constitutions drafted by the Fathers? They are set forth with great prolixity and precision in many a document. They are attached to the Constitution of the United States by amendments. They are regarded as primordial, inalienable, and to be protected against the arbitrary action of all government – federal, state, and local. In the Fifth Amendment, applicable to Congress, it is explicitly declared that “No person shall be deprived of life, liberty, or property without due process of law.” And in the Fourteenth Amendment the same words are repeated, in raising constitutional barriers against once sovereign states.
“No person,” it is written. That means no human being, it is assumed; for constitutions are made for human beings, surely, and not for anything else. So it would seem, if tradition, rather than practice, is to be taken as the ruling principle. But, if we are realists and try to pursue the subject to the fullness thereof, we must search for the correspondence between theory and practice.
Is there any kind of person other than human beings? Bluntly, there is. This strange being is the persona ficta, as the lawyers have it, the corporations, the person created by law and endowed with large powers in matters of life, liberty, and the pursuit of happiness. The corporation is a “person” under the Fifth Amendment and also under the Fourteenth Amendment.
Did the Fathers of the Republic have this distinction clearly in mind? What did the framers of the Fourteenth Amendment have in mind when they submitted their handiwork to the approval of the states? These queries are more than historical questions for dust-sifters. They are at this hour among the most pressing and practical issues to which the thought of statesmen can be directed.
One thing is certain. The framers of the Constitution and their informed contemporaries were acquainted with corporations and knew that corporations were treated as persons at law. This is no place to recite even an outline of the history of corporations from Roman times to the eighteenth century. It is sufficient to say that corporations had long been employed in England for purposes of exploration, commercial adventure, and colonization. They were associations of persons given unity and a collective will by charters from the Crown. Sometimes they were granted monopolies in the domestic market; indeed monopolistic features usually characterized their organization.
It often happened that the corporation was an association of the king’s friends and favorites and was intended to enrich them by special privilege rather than to promote industrial and commercial enterprise of the creative type. Thus a bad odor was generally attached to this fictitious being. Attacks on “monopolies” accompanied the Puritan revolution in England and the rise of parliamentarian supremacy over the Crown. In America also colonists looked with fear upon these institutions. Some of the colonies had been founded by chartered companies, and conflicts had occurred between the settlers and their corporate overlords in London. Even in the proprietary colonies some elements of the same struggle appeared. Lie the corporation the proprietor had special privileges, and although he could not escape physical death he could pass the property on to his heirs in regular succession. Furthermore, corporations had appeared in American commerce and industry before the fateful year 1787. MORE…