In Jewish folklore, a golem is a mythic creature made from mud. Although the power to create a golem is thought to be reserved to the especially holy, the golem is bereft of speech and can never be more than the shadow of a human. In modern literature, golems often acquire terrible powers, and in the 1921 Czech play “R.U.R.”, robots take on this role and eventually conquer their human masters.
Corporations have become the golems of our time. They are the creations of man, endowed with limited powers for the purpose of serving humans in our attempt to improve the world. But those limited powers have been enough, combined with their singular focus on profit, to enable them to assert a power greater than our own.
In the early days of corporations, they were chartered by the Crown, and later by individual states of the United States. The chartering authority had the power to specify what they could or could not do, how they would be governed, and how long they would last. As they became more plentiful, the states passed general corporation laws enabling anyone to form a corporation under conditions set by the law. The essential characteristics of a corporation under any of these laws are perpetual life, limited liability on the part of the stockholders, and the power to sue and be sued in court as an entity. The power to sue and be sued in court was said to derive from the corporation’s status as a “persona ficta” — not a real person, but considered to be one before the law.
After the Civil War, the Constitution was amended to ban slavery and to establish the rights of persons in the United States to due process and equal protection of the laws. Less than 20 years later, in 1886, the Supreme Court held that the word “persons” included corporations. The court’s decision contained no rationale for that holding — here is the entire passage:
One of the points made and discussed at length in the brief of counsel for defendants in error was that “corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” Before argument, MR. CHIEF JUSTICE WAITE said:
“The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. “
That was it. Corporations were now “people.” Mind you, ten years earlier the Court had struck down civil rights legislation as unconstitutional and rejected an equal protection argument that would have allowed women to vote. Ten years later the Court would uphold “separate but equal”. The corporations didn’t need civil rights legislation — they had the Supreme Court.
Fast forward to the present. Corporations are people, but people with perpetual life and limited financial liability for their actions. These attributes permit them to accumulate piles of money larger than any individual could ever earn. This power is needed to engage in the commercial activity for which corporations were created — building huge factories, railroads, bridges and entire villages of office buildings.
Not content with money, power and eternal life, the corporations now sought to acquire the facility of speech. They cannot, of course, speak by themselves, but by using money to hire people as their agents to speak and write for them and in their name. Qui facit per alium facit per se. And in due course the Supreme Court let it be so.
With money, power, eternal life, and speech, it might be pardoned the corporations that they began to think of themselves as just like real people, only better. And if ordinary mortals can vote, why not their betters? A stumbling block was that the election laws all restrict the vote to actual human beings. The corporations might have argued that these ancient laws were just as quaint as the Geneva Convention. But they took a different route. After all, if you have the right to vote, you can only exercise it once each election, in the municipality where you reside. But corporations reside everywhere. Surely they needed something more appropriate.
And so it came to pass that they hit upon the idea of using money to flood the public forum with speech, enough to line the campaign chests of Senators and put their message on every television set in the land. And that is where we find the Citizens United case. Although it is only supposed to decide the narrow legal question before it, the Court majority was so anxious to decide the constitutional issue that it ignored the positions actually argued by the parties and held that corporations have the unlimited right to spend money in election campaigns, regardless of whether the corporation’s business was affected by the election, and regardless of whether it even does business in the state where the election is being held.
It will be observed that this right is equivalent to the power to accumulate unlimited amounts of money over an unlimited period of time and spend it in unlimited amounts to affect an election. That right is greater than the right of the candidates themselves to raise and spend money in federal elections. And in all this din, the speech of the individual is not even loud enough to be heard.
Now the golem has immortality, speech and an amplifier, too. It appears to lack nothing besides worshipers, and with the advent of corporate evangelists that can’t be far behind. Where can this end but in a world where we must bow down to our new masters?