Would nineteenth-century Republican Frederick Douglass have agreed with twenty-first-century Republican Mitt Romney about the legal status of corporations? Jeannine Marie DeLombard, author of In the Shadow of the Gallows: Race, Crime, and American Civic Identity, points toward an answer in the third and final guest blog post on the legacy of the African American activist.
Talking Douglass-like about Law
“Corporations are people, my friend!” With this August 2011 gaffe, financier turned Republican presidential candidate Mitt Romney became the poster child for the Occupy movement that began in the following month. Outraged by the Supreme Court’s 2010 Citizens United ruling that the First Amendment blocks governmental limits on independent political spending by corporations and unions, Occupiers across the country rejected corporate personhood on the basis that, as a resolution by Occupy Raleigh has it, “legal persons are defined as human beings requiring food, water, and oxygen for survival.” This same logic has yielded the recent spate of proposed anti-contraception “personhood” statutes and amendments.
The American struggle to distinguish the flesh-and-blood human being from the artificial bundle of rights and responsibilities that constitutes a legal person has its origins in Dartmouth College v. Woodward (1819) – decided a year after Frederick Douglass was born in Talbot County, Maryland. Unlike the college, the slave, as civilly dead property, did not have the standing to bring suit in a court of law. But, also unlike the New England college, the enslaved African American would have been recognized as a human being by his contemporaries. And, divided as they were in their respective claims to civil standing and humanness, the corporation and the slave were united in being legally accountable for their wrongful acts. Assigned the “mixed character of persons and of property” under law (as James Madison approvingly put it in the Federalist), slaves were denied civil and political rights yet responsible for their crimes. Slavery worked best when slaveholders’ exploitation of blacks’ human emotions and relationships was coordinated with legal authorities’ routine denial of slaves’ civil standing and occasional punitive recognition of their criminal culpability as legal persons.
This does not mean, however, that Article 1, Section 2 of the Constitution (the notorious Three-Fifths Clause to which Madison referred) treats slaves as only fractionally human. Nor does it mean that corporations have been elevated to the status of people in Supreme Court cases like Woodward, Santa Clara County v. Southern Pacific Railroad (1886), and Citizens United.
Douglass understood this. Overcoming an initial reluctance to “talk ‘lawyer-like’ about law” in his early career as abolitionist orator, author, and editor, the celebrated autodidact drew on “well known rules of legal interpretation” to offer influential commentary on the U.S. Constitution and Dred Scott v. Sandford (1857). This legal literacy, combined with a longstanding commitment to gender and racial equality, might have led Douglass to question the wisdom of current efforts to make personhood coterminous with humanness. For if Douglass knew the horror of being denied full personhood, he also anticipated countless other African Americans in demanding accountability from railroad companies whose employees violently segregated their black customers. And, in the devastating legal aftermath of Reconstruction, as Barbara Welke has shown in her brilliant book, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge 2001), it was this liability that enabled black plaintiffs committed to the rule of law to extract from corporations the redress for racial discrimination denied them by the Supreme Court in The Civil Rights Cases (1883) and Plessy v. Ferguson (1896).
Instead of rejecting the human/person distinction as a cynical legal technicality, we might better learn to talk lawyer-like about law. Sharing in Douglass’s lay legal literacy, we could better gauge what some human persons (notably, women) stand to lose if every stage of human life is credited with personhood – and decide whether we really want to release corporations from legal responsibility for the injuries they cause.
Jeannine Marie DeLombard is Associate Professor of English at the University of Toronto and the author of Slavery on Trial: Law, Print, and Abolitionism. Her forthcoming book, In the Shadow of the Gallows: Race, Crime, and American Civic Identity, will be available this summer.