Proposed Amendment to the United States Constitution To Redress the
Increasing Distortion of Elections and Political Speech by
Corporations and Other Aggregate Forms
Karl Auerbach ─ October 14, 2011 ─ Version 1.04
Corporate and other aggregate
forms of organization are neither Persons nor Citizens under this
Constitution and shall have neither protections, rights, nor legal
standing under this Constitution.
This Amendment shall not be
construed to deny or disparage the power of Congress or the Several
States to enact legislation that defines rights, powers, limitations,
liabilities, and standing of such corporate and other aggregate forms
The conservative wing of the US Supreme Court has
elevated several corporate rights to at least the same degree of
Constitutional protection as the rights of natural (living) people.
There is little or no precedent for the creation
of these rights in corporations. The idea of the modern corporation
did not arise until nearly a century after the writing and adoption
of the Constitution. And the 14th Amendment predates the
rise of the modern corporation by at least a decade.
In other words, these corporate rights are the
product of judicial legislation.
Corporations exist because the states of the
United States found it useful to give people a legally recognized
structure to coordinate large enterprises and to apportion control
and liability. A corporation is nothing more than a product of
legislation intended to facilitate group liability and
responsibility. Corporations obtain their existence and their powers
from state legislation.
The Supreme Court took what the states created as
a form of accounting convenience and imbued it with Constitutional
grade powers such as the power to engage in political activities,
essentially allowing corporate management to use assets owned by
corporate shareholders to pursue whatever political goals management
These Supreme Court decisions diminish the rights
of natural, human people.
Corporate speech is loud speech. Corporate speech
is like a band, with amplifiers cranked up to 11, at family dinner
gathering – the corporate speech drowns out all normal
The US Supreme Court's Citizens-United decision
effectively replaces reasoned discussion and compromise among human
citizens with corporate money expended in pursuit of corporate goals.
Because cases such as Citizens-United are based on
Constitutional grounds they can not be modified or adjusted either by
the US Congress or by the states under whose statutes corporations
obtain their existence. The only way to modify corporate rights of
this nature is through a Constitutional amendment.
Corporations are not the only form of collective
activity that is recognized by law. There are unions, foundations,
educational institutions, churches, and more.
There are many kinds of corporations and aggregate
forms – News Corp and General Motors, a labor union and a
non-profit theater company. The best road for the future is one that
allows for flexibility so that differences may be recognized and
honored. In this regard it is wise to remember the principle that in
the United States the individual States are “laboratories"
in which different approaches may be tried and tested.
Here we propose an Amendment to the United States
Constitution that declares that aggregate forms of organization –
a phrase intended to encompass corporations, unions, and the like –
do not receive rights from the United States Constitution.
These entities ought to have rights. But they
ought not have them from the United States Constitution. Thus the
second part of the proposed Amendment empowers Congress and the
states to define appropriate rights and obligations for these
Because these rights and obligations would be
defined by Congress and the states they could be changed as times
change or as flaws are discovered. And these rights could be
tailored and adjusted to fit each particular kind of situation.
Moreover this approach allows for the rights of
natural people and corporations to follow different trajectories.
Under the proposed Amendment recognition by a court of a new nuance
of rights for a natural person would not automatically result in an
equal new right for a corporation. Instead the decision whether to
make that extension would be in the hands of Congress and state
Under this proposed Amendment the State of
Delaware might declare that a corporation chartered under the laws of
Delaware may give time, people, resources, or money to political
activities only if clearly disclosed to shareholders and only upon
periodic consent of a super majority of its shareholders (who are,
after all, the owners of the corporation.)
Or the State of New York might chose to adopt a
similar rule but provide that corporations that publish news –
on paper or on TV or the net – might have a rebuttable
presumption of the consent of their shareholders.
Of course, many details would have to be resolved
by Congress and the state legislatures. But that's what Congress and
state legislatures are supposed to be good at. Certainly those
bodies are more flexible and able to craft solutions than an
inflexible Constitutional dictate of the Supreme Court.