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Monday, September 20, 2010

Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights

By Thom Hartmann

Published by Berret Koehler Publishers, 2010
Second revised and expanded edition ISBN 978-1-60509-559-2

This review was first published on on 20th September 2010.


Did Supreme Court sell out America's citizens in the nineteenth century, with consequences lasting to this day? Is there a way for American citizens to recover democracy of, by, and for the people?

Thom Hartmann takes on these most difficult questions and tells a startling story that will forever change your understanding of American history. Amongst a deep historical context, Hartmann describes the history of the Fourteenth Amendment created at the end of the Civil War to grant basic rights to freed slaves and how it has been used by lawyers representing corporate interests to extend additional rights to businesses. Prior to 1886, corporations were referred to in U.S. law as "artificial persons." But in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were "persons" and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.


In 2009, "the transnational pharmaceutical giant Pfizer pled guilty to multiple criminal felonies. It had been marketing drugs in a way that may well have led to the deaths of people … [Pfizer] paid a $1.2 billion 'criminal' fine to the U.S. government … as well as an additional $1 billion in civil penalties… None of its executives… saw even five minutes of the inside of a police station or jail cell … in the autumn of 2004, Martha Stewart was convicted of lying to investigators about her sale of stock in another pharmaceutical company. Her crime cost nobody their life, but she famously was escorted off to a women's prison. Had she been a corporation instead of a human being, odds are there never would have been an investigation."

This punchy opening of this surreal book by Thom Hartmann gets you hooked from the very first line. It's true. What are corporations if not the actions of the people who work in them and for them? If a corporation does wrong, simply writing a check to the government doesn't seem to cut it, when the people responsible for the wrong-doing retain their jobs, their pay-checks and all privileges, and avoid punishment under the law. Hartmann explains, in great historical detail, how corporations became "persons" under US national law, with rights equivalent to those of "natural persons" (you and me, flesh and blood, individuals) including the First Amendment right of all persons to free speech, the Fourth Amendment right to privacy, the Fifth Amendment protection against double jeopardy and self-incrimination and the Fourteenth Amendment right to non-discrimination. Moreover, Thom Hartmann, blow by blow, explains how corporations have exploited these rights to advance their own interests, or at least, those of the "persons" who stood to benefit, at the expense of the common good and the people of the United States.

It all began, apparently, in 1886 when the Supreme Court Justice Morrison Waite pronounced judgment in a case of the Southern Pacific Railroad versus Santa Clara country, about the taxation levied on this corporation by the County. The lawyers claimed that the railroad corporation was entitled to the same rights as a "person". The court reporter noted in the written record of the case that, "The defendant corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny any person within its jurisdiction the equal protection of the laws." This written record, Thom Hartmann goes on to show, was actually an error and not the explicit intention of Justice Waite. Nonetheless, this record set the tone and served to legitimize all subsequent claims to corporate personhood for the rest of history until the present day. Further, Hartman postulates that this was all a big conspiracy engineered by the railroad lawyers who stood to make significant financial gain through defending more corporations in this way. The story is as incredible as it is outrageous and has the reader in a state of both disbelief and indignation. Surely the whole basis of corporate law in the US couldn’t have been derived from little more than a mistake? This is quite fascinating and the arguments are succinctly articulated with references to original documents and records of the time. If we are to believe this author, the entire legal infrastructure governing corporations may well have been a complete farce, opening the floodgates for unchecked corporate abuse of the law as it was originally intended.

Hartmann deals with many controversial and poorly understood issues relating to the power of corporations over the human rights of individuals, providing detailed case studies of an array of events and actions in relation to corporations. The reading is riveting, and even though we have heard many of these stories before, the "get to the real truth" approach of the author makes this compelling reading. We read about the events leading to the Boston Tea Party, which was a protest against the power of the East India Company, who had successfully lobbied to support the Tea Act which gave the East India Company full and unlimited access to the American tea trade as well as tax exemptions, thus helping to drive other tea-traders out of business. Hartmann recounts the astounding story of why the Marc Kasky case against Nike's "right to lie" in their marketing materials in the name of freedom of speech was never tried in court. Other chapters include the exposure of issues such as the lawsuit by the Texas beef barons against Oprah Winfrey for commenting that she would avoid eating hamburgers after an outbreak of mad-cow disease, the concentrated corporate ownership of the not-so-free press, corporate support for political campaigns, the limitations of federal authorities to carry out spot checks on businesses to assess health and safety compliance, comparisons of US versus European law and the application of the precautionary principle which is not law in the USA, the use by politicians and companies of Professional Blog Warriors who blast the Internet from all corners to make campaigns more effective, the complication of global corporations doing business across borders, military spending and corporate interests and more. All these stories show how the power of corporations threatens the basis of democracy and the protection of the human rights of "natural" persons. John Ruggie would feel extremely validated, reading this book.

As a non-lawyer, I found this book immensely readable, despite several long legal texts used to provide substance to the author's presentation of the issues. These cases are sometimes so incredible that they defy belief. Thom Hartman is "the (US) nation's #1 progressive radio talk show host" as well as being an award-winning well-respected author of over 21 books (he also works for humanitarian causes). He appears in this book to have conducted thorough research, though make no mistake about his intention: to convince us that we must get our rights back from corporate predators who not only do not deserve them but also abuse them. His concluding chapter offers suggestions as to how we might go about doing this, including references to democracy campaigners and organizations, such as the Community Environmental Legal Defense Fund or Whether you believe in the conspiracy theories or the "hegemony of corporate personhood", or whether you do not, this book is certainly a recommended read. It is entertaining, using a dramatic story-telling pace to recount history, and very thought-provoking indeed.

elaine cohen, CSR consultant, Sustainabilty Reporter, HR Professional, Ice Cream Addict., author of  CSR for HR: A necessary partnership for advancing responsible business practices. Contact me via  on Twitter or via my website

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