This article was written by Peter Kellman, a labor organizer based in Maine and a principal member of Program on Corporations, Law and Democracy, and was originally published in the Spring 2000 edition of By What Authority.
The purpose of this article is to introduce our readers to a key Supreme Court case from a working class historical perspective. The Dartmouth College case wrote into the Constitution the propertied class’s vehicle, the corporation, for concentrating economic and political power. Since few people today examine the Court’s actual decisions (which we will do in future BWAs), what counts is how Supreme Courts that followed Chief Justice Marshall’s Court of 1819 interpreted Marshall, and Justice Story’s supporting opinion, to foster powerful anti-democratic realities:
- gifts of special privilege for the rich to organize their own economic and political institutions, fostered and protected by “the entire strength of the nation;”
- denials of common people’s fundamental right and power to organize their institutions.
We have a great system of government. Amending the Constitution is a very different process for wealthy citizens as opposed to the majority of us. If the common people want to change the US Constitution we lobby Congress and get two-thirds of both houses to propose an amendment which must then be approved by three-quarters of the state legislatures. Interestingly, freedom of speech, freedom of the press, freedom from unreasonable search and seizure, the right to a speedy trial, trial by jury, the ending of slavery, the right to vote, and the requirement that US Senators be elected by the people rather than appointed by state legislatures all came into being through the amendment process.
The wealthy group of white men who gathered in a closed meeting in 1787 to write our Constitution didn’t think any of these rights were important enough to be included. It was left to Antifederalists and mass movements of African Americans, Populists, workers and women — mass movements of the people — to amend the constitution in ways they hoped would protect the majority of people from a wealthy minority.
There are four ways to change the Constitution: first is by revolution; a second was mentioned above; the third is through a Constitutional convention which can be called by two-thirds of the states; and the fourth is by a process called judge-made law.
A good example of judge-made law is the Santa Clara case of 1886, in which the Supreme Court ruled that a corporation is a person under the law and is therefore entitled to equal protection under the Fourteenth Amendment.
An earlier example of judge-made law is the Dartmouth College case of 1819. The word corporation is not mentioned in the Constitution or in any of its 27 amendments. However, Article 1, Section 10 of the US Constitution, known as the Contracts Clause, declares that no state shall make any “Law impairing the Obligation of Contracts . . .” Chief Justice Marshall, writing for the majority in the Dartmouth case, stated in reference to the corporate status of the college that; “The Opinion of the Court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired, without violating the Constitution of the United States.” That is, a corporation is a contract and therefore is protected by the Constitution. MORE…