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Footnote Comics: Wildcats Version 3.0
Written by Joe Casey, art by Dustin Nguyen and Richard Friend. Published by DC Comics/Wildstorm.
What is this comic about? : Jack Marlowe is the C.E.O. of the Halo Corp., a corporation that is quickly becoming one of the world's most powerful and omnipresent. Halo Corp.'s main product is a battery that never runs out; the secret is that it taps into another dimension. Marlowe's secret is that he actually is an android that was the leader of a now-defunct superhero team called the WildC.A.T.s; he has now embraced corporate politics as a new way of saving the world. Cole Cash, a.k.a. Grifter, is a mercenary who acts as Marlowe's right-hand man. Agent Wax works for a secret branch of the National Park Service and can control minds. Marlowe has big plans, and how everyone fits into them is still very unclear.
Recommended Reading : Wildcats 3.0 is published monthly by DC/Wildstorm, and it should be collected in graphic-novel form soon. The first two versions of Wildcats are very different comics; the first version was a superhero-team comic book that was most interesting when written by Alan Moore (his run is collected in Wildcats Homecoming and Wildcats Gang War), and the second watched the members go their separate ways and laid the foundation for version 3.0 (the entire second series is now available in trade-paperbacks such as the recent Battery Park). For more information, go to DCComics.com or the special mini-site for Wildcats 3.0 here.
Panel from Issue #2: Lincoln's Alleged Speech
Panel from Issue #2: Corporate Personhood
All covers and panels are copyright Wildstorm Productions, an imprint of DC Comics.
Lincoln's Alleged "Corporations Enthroned" Speech (last updated March 13, 2003) (back to top) (discuss this article here)
Was Abraham Lincoln worried about the rise of corporations in the post-Civil War United States? Many over the years have attributed such a quote expressing such views to Lincoln, but it appears that Lincoln never actually said or wrote such a thing.
First of all, it seems unlikely that Lincoln would have held such views given his long career as a lawyer who often represented the railroad industry. It also seems unlikely that circumstances arose in which Lincoln would have said such a thing; the Civil War did help some corporations gain power but Lincoln's assumption of extremely broad presidential powers was probably cause for greater concern at that time.
The quote in question supposedly comes from a November 21, 1864 letter to Colonel William F. Elkins :
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"Yes, we may all congratulate ourselves that this cruel war is nearing its close. It has cost a vast amount of treasure and blood. The best blood of the flower of American youth has been freely offered upon our country's altar that the nation might live. It has indeed been a trying hour for the republic; but I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country.
"As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands, and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war. God grant that my suspicions may prove groundless."
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No such letter appears in The Collected Works of Abraham Lincoln, an 8-volume chronological compilation by the Abraham Lincoln Association in 1953 with two later supplements. The letter is quoted in Archer Shaw's The Lincoln Encyclopedia (1950) and cited as coming from Emanuel Hertz's Abraham Lincoln, a New Portrait (1931); the quote as printed above does appear in Hertz's book but without any date, recipient or other identifying information. Caroline Thomas Harnsberger deliberately did not include the quote in The Lincoln Treasury (1950), calling it "spurious."
Lincoln's son, Robert Todd Lincoln, himself a lawyer for the railroad industry, reportedly wrote a short letter in March 1917 dismissing the quote as inauthentic. In a longer, unsent draft of that letter, Robert Todd Lincoln wrote that he had tracked the source of the quote to a Spiritualist Séance in Iowa and that the quote was supposedly said by Abraham Lincoln through a medium. "[B]elief in its authenticity should therefore be held only by those who place confidence in the outgivings of so-called Mediums at the gatherings held under their auspices," he wrote.
Robert Todd Lincoln also wrote in the unsent draft that the quote's authenticity is doubtful because it seemed anachronistic. "I am old enough to remember that time very well, but I do not recall that there was then, or for a good many years thereafter, any public discussion of the danger to the public of corporations or of combinations of corporations, and I do not believe that there was then any feeling whatever adverse to corporations large or small," he wrote.
"In short, I regard the quotation as being simply an impudent invention," Robert Todd Lincoln wrote in the unsent draft.
By the way, there actually was a Colonel William F. Elkins, who Abraham Lincoln had some connection with through his early political career in Illinois. But Elkins does not appear to have been a close friend of Lincoln or to have had much role in Lincoln's later political life, and Robert Todd Lincoln wrote in March 1917 that he had no memory of such a man.
Discuss this article here.
Sources: The best reference on this topic is Thomas F. Schwartz, Lincoln never said that, For the People (Abraham Lincoln Association, Vol. 1, Number 1, Spring 1999), available on-line via the Abraham Lincoln Association here. Archer H. Shaw, The Lincoln Encyclopedia (Macmillan, 1950). Emanuel Hertz, Abraham Lincoln : A New Portrait (Volume 2) (Horace Liveright Inc., 1931). Caroline Thomas Harnsberger, The Lincoln Treasury (Wilcox & Follett Co., 1950). The Abraham Lincoln Association, The Collected Works of Abraham Lincoln, edited by Roy P. Basler (1953). Mark E. Neely, Jr., The Last, Best Hope of Earth : Abraham Lincoln and the Promise of America (Harvard University Press, fourth printing, 1995).
Corporate Personhood (last updated March 26, 2003) (back to top) (discuss this article here)
Corporations are now seen in the United States as "persons" under the law with many but not all of the same rights that actual human beings have. Corporations now can invoke their Fourth Amendment rights against unreasonable searches, have some First Amendment rights of free speech, and cannot be subjected to unequal treatment by the government.
The development of such "corporate personhood" was a process that some say started with the 1886 case of Santa Clara v. Southern Pacific Railroad, but that case was actually just an early point in two different legal stories : the development of corporate personhood as well as the development of the 14th Amendment as a limitation on what government can constitutionally do. The Santa Clara case did help establish that corporations were "persons" under the Fourteenth Amendment, but what that meant would not be clear until the 20th Century.
Some, such as Justice Hugo Black (1886-1971) and Ralph Nader, have at times called for court rulings or constitutional amendments that would revoke corporations' status as persons. Such a change might allow for easier and more extensive regulation of corporations, they say. For example, if corporations weren't considered persons, then laws could tax certain kinds of corporations more heavily or limit corporations' free-speech rights more easily, and regulators probably could do more surprise inspections.
Others, including Chief Justice William Rehnquist, have at times called for stricter limits on corporate rights. Rehnquist wrote in a dissenting opinion in 1978 that corporations should only be entitled to the rights that they need to carry out the purposes for which they were incorporated, and would have denied corporations First Amendment rights unless they were specifically in the media business.
Some have tried over the years pinning corporate personhood on a conspiracy involving various parties: the legislator primarily responsible for drafting that section of the 14th Amendment in 1866, the lawyer who argued most strongly for corporate personhood in 1882, and the Supreme Court justices who decided Santa Clara in 1886 (the judges now seem to get most of the blame). But all these theories seem to give too much credit to the alleged conspirators : the Fourteenth Amendment has in so many ways grown far beyond what anyone could have predicted in the 19th century and corporate personhood did not become a truly powerful tool until a decision in 1905.
The Meaning of "Person" in the 14th Amendment
With the end of the Civil War, legislators passed constitutional amendments that would help ensure that blacks were treated equally and without the badges of servitude. The 13th and 15th Amendments clearly were responses to the Civil War; the 13th Amendment ratified in 1865 banned slavery, and the 15th Amendment ratified in 1870 ensured that voting rights could not denied anyone because of his race (though this right was limited to men for another 50 years).
Most of the 14th Amendment, ratified in 1868, clearly also is a response to the Civil War. But the first section goes farther and establishes who is a citizen of the United States. It also dictates that no state "shall derive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
One question is whether the term "person" as used in the 14th Amendment includes corporations. But another, deeper question is whether anyone knew at the time or could have predicted just how important "due process" and "equal protection" would come to be.
The Supreme Court answered the question of corporate personhood affirmatively at some point in the 1880s, though exactly when is not entirely clear. Even though some have referred back to the Santa Clara decision for this ruling, the Supreme Court actually did not make such an explicit holding in that case (read it here). Rather, the Chief Justice of the Supreme Court cut off oral argument on that point and simply stated his belief that this issue was already well-settled; the point was then adopted in the case summary without actually being formally decided. In any event, the Supreme Court did hold the point to be law in subsequent cases, such as Minneapolis & St. L. R. Co. v. Beckwith, 129 U.S. 26 (1889).
In order to understand the court's thinking, we must look at a lower-level opinion that did go more deeply into this point and into an argument before the Supreme Court. An 1882 circuit-court opinion, County of San Mateo v. Southern Pacific R. Co., written by one Supreme Court justice and supported by the circuit-court judge for California shows that corporate personhood was seen by some people as a way of protecting individual persons' investments in these corporations. According to this view, individuals had certain property rights and should not lose those rights merely because they were operating via a corporation.
"[W]e think that it is well established … that whenever a provision of the constitution, or of a law, guarantees to persons the enjoyment of property, or affords to them means for its protection, or prohibits legislation injuriously affecting it, the benefits of the provision extend to corporations, and that the courts will always look beyond the name of the artificial being to the individuals whom it represents," Justice Stephen Field wrote.
We must also look at how Roscoe Conkling, a former member of the Joint Congressional Committee which drafted the Fourteenth Amendment in 1866 and a lawyer who had twice declined nominations for the Supreme Court, argued the appeal of the San Mateo case before the Supreme Court. In 1882, Conkling publicly produced for the first time the Committee's notes and argued that the Committee had intentionally used the word "persons" to include corporations. He did not explicitly say that the Committee had done so, but he left an impression that undoubtedly affected the Supreme Court justices when the issue came up again six years later.
But others have disputed this reading of the 14th Amendment as too broad and have said that this reading was not what the people who wrote and ratified the 14th Amendment intended. Justice Hugo L. Black, for example, wrote in a 1938 dissent that "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection … No word in all this amendment gave any hint that its adoption would deprive the states of their long-recognized power to regulate corporations." See Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77 (1938) (on-line here).
Accordingly, Black wrote that "this Court should now overrule previous decisions which interpreted the Fourteenth Amendment to include corporations." Black noted that corporations had invoked the 14th Amendment so often that more than 50 percent of the cases invoking the 14th Amendment in its first half-century were on corporations' behalf, and less than one-half of 1 percent were for blacks.
It is not entirely clear what the drafters of the Fourteenth Amendment had in mind. The key drafter was John A. Bingham, a Republican from Ohio who served in the House of Representatives for almost two decades and helped prosecute those who allegedly helped assassinate Abraham Lincoln. Scholars such as Howard Jay Graham have pointed out that Bingham had long sought greater constitutional protections for blacks and also for whites, though Bingham might have tried accomplishing other goals at the same time.
For better or worse, corporate personhood under the 14th Amendment won out in the 1880s and Black's opinion never won much support. The only other member of the Supreme Court to back Black's viewpoint was Justice William O. Douglas, who wrote in a 1949 dissent that the Supreme Court misinterpreted the 14th Amendment in the 1860s and should rectify the mistake. See Wheeling State Corp. v. Glander, 337 U.S. 562, 576-80 (1949) (on-line here).
Substantive Due Process and Equal Protection,
or, So What?
However the Supreme Court got there, as of the late 1880s, corporations could not be deprived of property without "due process" of law and were entitled to "equal protection" under the laws. So what? The idea meant very little throughout the 19th century; the early understanding of "due process" was that it simply guaranteed that government action affecting you would follow certain procedures, and that of "equal protection" was that it simply meant that government classifications would have some reasonable connection to a legislative purpose.
Nevertheless, section one of the Fourteenth Amendment has over time grown into one of the most powerful and farthest-reaching parts of the Constitution. For example, "due process" was the basis for applying the Bill of Rights against the states; the rights therein were originally seen as applying only to the federal government and one of Bingham's goals was to nationalize those rights as did later happen. In the modern day, "due process" and "equal protection" have become the basis for many individual rights such as the right to have an abortion.
Similarly, "due process" slowly took on a broader meaning in terms of economic regulation. Justice Stephen J. Field, recognized as a big booster of laissez-faire economics and the first Supreme Court justice to recognize corporate personhood, consistently argued that courts should use the Fourteenth Amendment to examine the substance of laws -- not merely whether they were enacted according to proper procedure - and to strike down laws that substantively violated "due process." This was a minority, not-controlling viewpoint in the Slaughterhouse Cases decided in 1871, but it became the majority viewpoint with the 1905 decision of Lochner v. New York, in which the Supreme Court struck down a New York law capping the maximum hours that could be worked a week.
For the next few decades, a period now called the Lochner period, corporations and businesspeople regularly invoked the 14th Amendment to strike down laws that tried regulating workplaces and the free market. See e.g. Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933) (on-line here) (in which the Supreme Court struck down a Florida law taxing chain stores greater than other stores). Courts thus struck down many economic regulations, including most of Franklin Delano Roosevelt's New Deal.
Finally, however, the threat of FDR's court-packing plan and a change in the composition of the Supreme Court in the late 1930s resulted in a change of judicial philosophy. The Supreme Court stopped reviewing economic laws substantively and began giving more deference to such laws as passed. (Substantive due process would be revived in the 1960s as a way of ensuring individual rights)
Given the shift in judicial philosophy, corporations' "due process" rights under the 14th Amendment are no longer as important as they were beforehand. Courts now generally accept that laws comply with the 14th Amendment, so corporations as well as individuals cannot have laws struck down on this point as easily as before.
Other Rights
The Santa Clara decision had nothing to do with whether corporations could claim rights under the Bill of Rights, but corporations have developed these rights over time. The Supreme Court has at times noted that corporations' rights are not as extensive as actual persons, but the breadth of these corporate rights has grown, especially with the fall of substantive due process. These rights are established via Supreme Court decisions, so the extent and precise contours are somewhat unclear.
The 1905 case of Hale v Henkel was apparently the first to recognize that a corporation had a Fourth Amendment right to be free from unreasonable searches and seizures, and the 1978 case of First National Bank of Boston v. Bellotti, 435 U.S. 765, established that all corporations had some First Amendment rights of free speech and political participation. But these cases also show that these rights are not absolute and not entirely clear; the Supreme Court in First National Bank of Boston case indicated that legislatures might be able to curtail corporations' First Amendment rights in certain circumstances.
Some would limit the rights further. Chief Justice William Rehnquist, for example, wrote a dissenting opinion in the 1978 First National Bank of Boston case and would have held that a corporation should only be entitled to the rights that are necessary for the corporation's purpose. A business corporation must have the right not to be deprived of its properly absent due process, but a business corporation does not need to have free-speech rights unless it is specifically in the media business, Rehnquist wrote.
The following list discusses a few of the rights corporations have and have not established via United States Supreme Court decisions.
- First Amendment rights of free speech. Corporations have some free-speech rights, such as the right to spend money to influence the outcome of a state referendum. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (on-line here), the Supreme Court majority decided that nothing justified "the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property." However, these rights were not absolute, as the Supreme Court majority also noted that it might consider limiting corporation's First Amendment rights if there were "record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests."
Rehnquist dissented, writing that corporations that were not involved in the media should not have First Amendment rights and that such corporations could be regulated by the states. "A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere," Rehnquist wrote. "Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed."
- Fourth Amendment right to be free from unreasonable searches and seizures. Corporations have this right, so government inspectors or regulators need limited subpoenas in order to conduct searches and inspections. See Hale v. Henkel, 201 U.S. 43 (1906) (on-line here) ("A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body."). See also See v. City of Seattle, 387 U.S. 360 (1967) (on-line here).
- Fifth Amendment right against self-incrimination. This right is limited to actual persons who can give testimony, so corporate agents cannot invoke this right to prevent incriminating their corporation. See Hale v. Henkel, 201 U.S. 43 (1906) (on-line here) ("The amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself; and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation.").
Discuss this article here.
Sources : Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford University Press, 1992). Howard Jay Graham, Everyman's Constitution: Historical essays on the Fourteenth Amendment, the "Conspiracy Theory", and American Constitutionalism (State Historical Society of Wisconsin, 1968). Howard Jay Graham, The "Conspiracy Theory" of the Fourteenth Amendment, Part One, 47 Yale L.J. 371-403 (1938), Part Two, 48 Yale L.J. 171-94 (1938). Louis B. Boudin, Truth and Fiction about the Fourteenth Amendment, 16 N.Y.U.L.Q. Rev. 19-82 (1938). Willard Hurst, Book Review, 52 Harvard L.R. 851-60 (1939). Gerald Gunther and Kathleen M. Sullivan, Constitutional Law (13th edition, Foundation Press, 1997). Henry J. Abraham, Justices, Presidents and Senators (Rowman & Littlefield Publishers, Inc., 1999, 4th edition). Cases as cited above.
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All art is copyright their respective owners.Footnote Comics is a service mark of Stephen Lee. Newsaic and FootnoteTV are registered service marks of Stephen Lee.
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