The Fourteenth Amendment was written as an instrument to deliver the bounties of emancipation to freedwomen and freedmen. Yet it fell far short of this original intent, not least because the Supreme Court drastically limited the actors and, ultimately, the actions that might be targeted by the amendment’s guarantees of “due process” and “equal protection.”
During the same interval of time, however, the Supreme Court also developed a remarkably expansive reading of the Fourteenth Amendment. In an opinion to a case that did not itself reach any constitutional question, the Court nonetheless published a headnote declaring that the Amendment’s equal protection clause applied to corporations. From this abrupt departure point, as David Ciepley observes, over the course of the next two decades the Court offered a kind of Russian-nesting-doll chain of citations that read as “if it had decided,” rather than skirted, the questions of how and why corporations can access the Fourteenth Amendment.
All told, this collected jurisprudence reinvented the modern corporation, endowing its artificial person with certain constitutional rights, while depriving freedmen and women access to the rights and remedies intended by authors of the amendment.
As I explain in this post, and as I explore at length in a recent book, over the past fifty years, corporate advocates have once again succeeded in positioning themselves as the beneficiaries of instruments designed for those far less powerful. This time around, they hijacked the language and tactics of modern social movements to graft identity-based attributes onto the corporate entity. These new, personalized dimensions of the corporation were forged not only in tandem with, but in direct opposition to, the social movements they mirrored. And unlike modern social movements organized around aspects of identity like race or gender, the overriding objective of corporate advocates was not to rectify a historical imbalance in power, but to enhance an existing, economic one.
The Second Corporate Reinvention
Corporations launched their version of “identity politics” in the 1970s, when a wave of regulations earned broad, bipartisan support: the Clean Air Act (and its successors), several campaign finance reform packages, the Occupational Safety and Health Act, Medicare-driven regulation of hospitals, and much else. In reaction to this ambitious state-building project, corporate advocates syphoned from and opposed elements of liberal reform to undermine the force of these regulations.
Following the Supreme Court’s ruling of Roe v. Wade, for instance, officials in charge of Catholic hospitals capitalized on liberalism’s affirmative commitment to pluralism to define new religious dimensions to their identity by refusing certain kinds of reproductive care to women. This super-charged religious identity proved a useful shield against numerous efforts to tax and regulate non-profit hospitals—leading one Catholic hospital official to remark that, from the standpoint of institutional autonomy, the “abortion issue is a blessing in disguise.”
In analogous fashion, corporate executives sought to benefit from criminal justice reforms, including the adoption of higher standards of intent for criminal conviction, even as they sponsored political groups that stoked fears of street crime to preserve harsh punishment and strict liability for others. These expedient views of criminal justice reform were most apparent in the various campaigns to pass a federal criminal code in the late 1970s, as representatives from corporate America cited the recommendations of reform-minded Brown Commission that did not apply to corporate crime while ignoring those that did. Their success removed corporations and corporate executives from the domain of “harsh justice,” allowing these companies to treat penalties for regulatory violations as a tolerable cost of business or to externalize these costs entirely.
Corporate political donors—particularly those linked to “Big Oil”—also passed money under the table as Congress investigated and created an infrastructure to monitor the political speech of organized labor. They later took advantage of the course charted by unions, specifically the jurisprudence and legislation enabling Political Action Committees (PACs), without enduring any similar scrutiny of their own internal affairs. In the wake of Watergate and the first substantive regime of campaign finance spending, corporations emerged with a newly recognized constitutional right to free speech without facing meaningful burdens of consent and disclosure.
These various campaigns unfolded at the same time, in response to similar regulatory pressures. More striking, they all followed the same pattern: raiding the toolkit furnished by contemporary social movements to vest the corporation with aspects of personal identity designed to blunt or diminish the force of regulatory reforms. Distinct from ordinary forms of corporate influence like “regulatory capture” or just plain lobbying, these new attributes of corporate identity endured beyond any single contest or coalition. All told, these efforts amounted to a reinvention of the modern corporate entity.
Congress as the Culprit
Some elements of this second corporate reinvention are well-known, like the recognition of the constitutional right of corporations to engage in political speech. Others are more obscure, as when corporate advocates borrowed the language of criminal justice reformers to argue for leniency in regulatory statutes and criminal sentencing. Assembling these various personalized forms of corporate power into one story casts a new light, and generates new points of emphasis and interest, on stories we think of as familiar.
But it does more than that. In a political dialectic with modern liberalism, the “sum” of the corporate reinvention is greater than its parts. No longer the self-seeking forces of “organized money” famously denounced by Franklin Roosevelt, a corporate faction endowed with personalized attributes could couch itself as one special interest among others—perhaps even as one in need of special accommodation.
Moreover, identifying these developments as a form of “corporate identity politics” draws attention to new forces at work in the reinvention of the modern corporation. Those familiar with the first round of personification of corporate power, dating back to the turn of the 20th century, might expect the federal judiciary to play the decisive role in the second corporate reinvention as well. But it was members of Congress, not judges seated on the bench, who paved the way for corporate identity politics.
In the contest between women and Catholic hospitals looking to claim maximum autonomy, women came out less free while hospitals emerged as more religious. In recounting how this happened, those well-versed in reproductive rights would point to the Church amendment, named after its original sponsor Senator Frank Church, the first of the federal “conscience clauses” passed almost immediately following Roe v. Wade, which secured greater autonomy for hospitals by declaring that receipt of public funds did not require recognition of a woman’s right abortion or sterilization (tubal ligation).
But that language alone did not prevent the courts from deliberating on the question, particularly in cases where a Catholic hospital was the only one serving an area. In fact, a Catholic hospital called St. Vincent’s was well on its way to losing exactly this sort of case in Montana as Congress deliberated on the Church amendment.
To forestall a finding of jurisdiction or “state action” over Catholic hospitals, Congress stripped courts of the power to deliberate on exactly this question. When the Church amendment moved to the House for consideration, House lawmakers added “any court” to “any public official” as among those enjoined from requiring recognition of a woman’s right to abortion or sterilization as a condition for receipt of public funds.
Court-stripping is an example of a quiet power; a nuance with extraordinary downstream effects. But there are others as well. At the height of liberal reform, legislators abandoned a federal criminal code that stipulated uniform definitions of intent, opting instead for a sentencing regime with dramatically different punishments for similar mindsets. Over a longer stretch of time, they imposed a level of political regulation and scrutiny on unions more rigorous than that required of corporations, even though far more, and far more significant, political corruption could be traced to the boardroom than the union hall.
By exercising subtle powers over a protracted period, Congress converted modern liberalism from a philosophy focused on rectifying power differentials to one that appeared indifferent to them, while in operation tilting the scales in favor of the corporate entity.
The Legacy of Liberalism
We live in a world shaped by the hollowed-out liberalism of corporate identity politics.
This should affect how we assess liberalism itself. Karl Marx famously derided classical liberalism as a mask for class domination; Carl Schmidt extended the critique to hold it accountable for the origins of fascism. Likewise, its modern iteration, or the “rights revolution,” has attracted critics on both the left and the right. It is not beyond imagining that liberalism, excessively preoccupied with legal formalism, would conjure a personalized corporation as a kind of “Frankenstein” monster of its own creation.
But better and more evidence can be summoned for a slightly different argument—that rather than being fatally flawed, liberalism has been undermined by powerful actors, including by those industries most affected by second-wave liberal state-building.
If we can better understand how power coopts the instruments of liberalism, then perhaps we can identify the appropriate targets of reform and the most suitable grounds upon which to build a governing consensus. The story of corporate identity politics suggests that Congress, rather than the courts, should rank as the first priority, and that regulation of industry is the thing upon which most Americans agree, but that the current political system disfavors.
If we want to change anything else, we must start with this.
