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I addressed this question in a Letter to the Editor published by The Washington Post online on December 11, 2013.
Here is the letter, with the Post’s
headline and links that the Post nicely
provided for more information. (A slightly different version of this letter,
revised by the Post and approved by
me, was published in the print edition of December 12th, Page A18.)
In his speech at NorthwesternUniversity, on March 5, 2012, Attorney
General Eric H. Holder Jr. defended the killing of terrorists, designated
as such by the executive branch, as legal and as requiring no judicial review.
Mr. Holder was responding in particular to the prior Sept. 30 drone killings of
U.S. citizen
Anwar al-Awlaki and, two
weeks later, his 16-year-old son. Prior to and since then, numerous such
“terrorists” have been killed.
If the U.S.
government can err so completely as to view Mr. Mandela as a terrorist threat
until 2008, then it can err today in deciding who is and who is not a
terrorist. If the United States
had had the drone capability and “legal” rationale in 1988 that it has today,
it might have killed Mr. Mandela. There may be someone who would have been a
Mandela of the future had not he or she been killed, quite “legally,” by the U.S.
government in a drone attack.
John L. Hodge, Jamaica
Plain, Mass.
Another article, an op-ed in The Boston Globe by Boston
civil liberties attorney Harvey Silvergate and his assistant, Juliana DeVries, points
out the threat to freedom of speech contained in the U.S.
government’s concept of a “terrorist”: “Terrorism ruling assaults civil liberties.”
The creeping expansion of the “terrorist” label is similar
to what happened in the 1950s, which led to the frequent labeling of anyone who
advocated for social change from the left, including Martin Luther King, a
“communist.” Many people so labeled lost their jobs and some went to jail. Similarly,
as the Silvergate/DeVries article indicates, “terrorists” are being targeted
and sent to jail, and perhaps killed, based not on what they do but on what
they think and say and their associations.
In 1957, the U.S. Supreme Court eventually put an end to the
prosecution and jailing of “communists” based on their beliefs, expressions,
and associations. (See its opinions, particularly the concurring views of
Justices Black and Douglas, in Yates v.United States, 354 U.S. 298 (1957).) That Court was probably more liberal than
the Court today: In Yates the
conservative side of the bench produced only one dissent that favored the
prosecution.
The only thing that separates us from a repeat of the oppressive
anti-communist crusades of the 1950s, renamed the “war on terror,” is the time
between now and the potential future. What that future will be, and when it
might arrive, will depend on what we do today.
Most
responders would seem to agree with Mr. Rumbaut: “ ‘Race’ is a social status,
not a zoological one.” But, as Mr. Bennett suggests, rational arguments are not
enough to change our societal reality.
That
reality is not changed by a “full mixture of genetic pools,” as Mr. Bennett
proposes, because that mixture already exists. The idea of “race” prevents us
from seeing it. As Dr. Monac points out, people we identify by a “race” are
mixed with other “races.” Anyone who observes people riding the Manhattan subways sees a broad range of mixtures.
When
we cannot tell what “racial” category a person fits into, we say the person is
“mixed race.” But when you mix two myths, you get a third myth. The mixing of
people we now identify as of different “races” is as old as the migrations of
Homo sapiens out of Africa tens of thousands of years ago.
“Race”
is a mental construct, not a physical reality. It is false construct that
should be abandoned, not redefined. But while discussing the construct like
academics, we have avoided discussing how to remedy the harm it has caused.
JOHN
L. HODGE Boston, July 19, 2013
I address remedying the harm racism has caused in Chapter 5 of my book, How We Are Our Enemy--And How to Stop, in the section titled "Go Beyond Affirmative Action to Eliminate the Effects of Past Discrimination--and Poverty."
My letter below was published in the New York Times (online today; in print tomorrow) criticizing the concept of "race" while affirming the need for remedies for past harm. This is an "Invitation to a Dialogue" which requests responses to NYT by Thursday. On Sunday (according to the normal procedure) NYT will reprint my letter along with responses and my reply to the responses.
Over many decades, those who study genetics have found no biological evidence to support the idea that humans consist of different “races.” Based on such scientific data, Ashley Montagu published “Man’s Most Dangerous Myth: The Fallacy of Race” in 1942. New discoveries have confirmed what he said then. So why, over seven decades after his book, do we keep talking and living as though biological “races” exist?
Not only are certain “racial” classifications flawed, as suggested in “Has ‘Caucasian’ Lost Its Meaning?” (Sunday Review, July 7); all “racial” classifications are inherently flawed, because they are based on the false idea of “race.”
The myth of “race” has supported the horrors of slavery, apartheid, segregation, eugenics and the Holocaust. It continues to support racism. We cannot simply ignore the harm this myth has caused and pretend that the myth never existed.
The scientific, democratic and ethical goal should be to eliminate the false idea of “race” completely. But how do we both destroy the myth and remedy the harm it has caused?
We can begin by mentally changing how we see people. When we look at someone and automatically think about that person’s “race,” we must realize that we are not seeing “race” but instead seeing an arbitrary and harmful societal classification imposed on a continuum of physical differences.
When we want to ask how someone is classified by the myth, we should always put “race” or “racial” in quotation marks (as I have done here). Such questions still need to be asked, for example, on applications for college or a job, or for the census, for the answers provide the data needed to maintain diversity in education and the workplace and to monitor and remedy the harms the myth has caused and continues to cause. The long-term goal, however, is to make these questions obsolete.
JOHN L. HODGE Boston, July 15, 2013
The writer is a retired lawyer, former professor of philosophy and the author of books, essays and a blog on democracy, ethics and human rights.
Editors’ Note: We invite readers to respond by Thursday for the Sunday Dialogue. We plan to publish responses and Mr. Hodge’s rejoinder in the Sunday Review. E-mail:letters@nytimes.com A version of this letter appeared in print on July 17, 2013, on page A24 of the New York edition with the headline: Invitation to a Dialogue: The Myth of ‘Race’.
The reason George Zimmerman was recently acquitted for
killing Trayvon Martin is the consequence of Florida
law. In accordance with this state law, the jury instruction at Zimmerman’s
trial stated, “A person is justified in using deadly force if
he reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself.” This means that in Florida,
if you have good reason to fear that someone is going to rob you or assault you,
even if they are unarmed, you can shoot them dead and not be prosecuted.
In accordance with this law, the jury instruction went on to
state, “If George Zimmerman was not engaged in an unlawful activity and was
attacked in anyplace where he had a right to be, he had no duty to retreat and
had the right to stand his ground and meet force with force, including deadly
force if he reasonably believed that it was necessary to do so to prevent death
or great bodily harm to himself or another or to prevent the commission of a
forcible felony.” This is why he was acquitted.
As today’s editorial in The
Boston Globe stated, “Zimmerman’s acquittal reflects a presumption that, in
Florida, one can pick a fight with a stranger for entirely dubious reasons, and
if that stranger seems to be gaining the upper hand — as Martin did, in
Zimmerman’s account — it’s acceptable to pull out a gun and shoot.”
This kind of law is commonly referred to as “stand your
ground law.” As stated by Curt Anderson in the March 22, 2012 Huffington Post,
“Florida is among 21 states with a ‘Stand Your Ground Law,’ which gives people
wide latitude to use deadly force rather than retreat during a fight." In other
states, the law generally is that if you can safely escape from harm, you
should do so, and if you cannot escape, you can only use as much force as is
reasonably necessary to protect yourself or another. “Stand your ground law” is
the law of the wild West that is not appropriate for civilized countries.
Combine this law with the lack of gun regulation, and you have murders like
that of Trayvon Martin where the murderer goes free--not because of racism in
this case, but because of the law.
The only way “stand your ground” laws can be changed is by
the state legislators or state courts in the states where such laws exist, or
by an amendment to the U.S. Constitution. Like marriage, the law of
self-defense is a matter for states. Such laws are most likely protected from
federal oversight by the Tenth Amendment to the U.S. Constitution, which
states, “The powers not delegated to the United
States [i.e., the federal government] by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” As with marriage and health care, the sanctity of your life still depends on the state in which you live.
(This post is the seventh in the series on corporations--see links below for
previous posts. If you like this or other posts, share it with your friends.)
A corporation is a legal person but not a human one.
Unfortunately, the criticisms ofCitizens United that attack the idea that a corporation is a human person miss the point and thereby divert attention away from the real need for
campaign finance reform. (See my earlier post, The
Misguided People’s Rights Amendment.)
A corporation has never been considered to be the same as a
human person. There is a difference between a legal person and a human person.
Corporations in U.S.
law are legal persons, not human ones. This difference is important and
negates the attempts to mock Citizens United as affirming that corporations are the same as people.
This case began with an investigation of AT&T by the
Federal Communications Commission. The FCC sought certain documents from
AT&T under the Freedom of Information Act. The Freedom of Information Act
states that the Act does not require the disclosure of certain specified kinds
of documents. Among those documents that are excluded from the Act’s disclosure
requirement are "records or information compiled for law enforcement
purposes" that "could reasonably be expected to constitute an
unwarranted invasion of personal privacy" -- §552(b)(7)(C).
AT&T argued that, as a corporate person, it had personal
privacy rights. Thus, AT&T claimed that it, as a corporation, did not have
to disclose records that invaded its personal privacy. The U.S. Court of
Appeals for the Third Circuit agreed with AT&T. The U.S. Supreme Court
disagreed and held for the FCC.
The Supreme Court’s opinion was unanimous except for the
absence of Justice Kagan who did not participate. Justice Roberts, writing for
the Court, stated, “’Personal’ ordinarily refers to individuals. We do not
usually speak of personal characteristics, personal effects, personal
correspondence, personal influence, or personal tragedy as referring to
corporations or other artificial entities” (my emphasis). Thus, the
Court held that corporations do not have “personal privacy” for the purposes of
the personal privacy exemption in the Freedom of Information Act.
Note particularly that the Court referred to corporations as
“artificial entities.” The Court thus has clearly established that there is a
difference between human persons and corporate persons.
As we know, Citizens United did not make use of this distinction. Why? Later in this series I
will post an examination of that case. In any event, Citizens United handled difficult legal issues that cannot be
easily dismissed by incorrectly mocking the Court for saying that a corporation
is a human person. The Court is quite aware that a corporation is a legal
person, not a human one.
Thus, those jumping on the simplistic bandwagon of “corporations are
not people” are shooting themselves in the foot by not addressing the more
difficult constitutional issues that Citizens United present. These are difficult issues that require careful thought,
not slogans.
The Chicago Tribune
columnist Clarence Page, on May 5, 2013,
noted the absurdity of the question on “race” contained in Question 9 of the
U.S. Census: “How to update census’ race question.”(See image of Question 9 below.) In addition to checking
“white,” or “black, African Am. or Negro,” or “American Indian or Alaska
Native,” there are several additional choices that are Asian nationalities or
ethnicities. (The term “Negro” will be dropped.) The question not only confuses
“race” with ethnicity and nationality, it also implicitly affirms the false
idea that “races” exist as biological entities. This lie is not something that
the U.S. Government should be perpetuating.
Mr. Page begins the column by noting the confusion of a
woman who considered herself “white” but who recently discovered that she had
an African-American ancestor. Was she “white” or “African-American”? Her
dilemma was published on TheRoot.com. That website also published a short article
linking to Mr. Page’s Tribune column:
“The Census Race Question Isn't Working.”
While Mr. Page criticizes the old “race” boxes, I did not
think his critique went far enough. Thus, I posted the following comment to
TheRoot.com article:
Yes, the Census form question on “race” makes no sense. But
it needs more revision than you suggest. Genetically, there is no such thing as
a “race.” (Even if they existed, most Americans are mixed with one thing or
another--as the young “white” woman discovered.) “Races” are not biological
realities but are mythical social constructs that falsely impose rigid
categories on a continuum. It is a very powerful and harmful myth that we must
expose as nothing but a myth. (This does not mean that “affirmative action” has
to be ended--the harm that the myth has done needs to be remedied.) Thus, the
census question should not ask about anyone’s “race,” but instead should ask,
“What ‘race’ or ethnicity do others generally consider you to be?” That gets the
information needed to monitor discrimination without affirming the myth. --John L. Hodge (author--JohnLHodge.com)
A reader
replied to my comment by noting the harm of affirmative action programs. This
is my reply to his reply:
. . . affirmative action does not have to be based solely
on color. It should take into consideration other factors and shift its focus
to impoverished backgrounds regardless of color, but still address the past
adverse effects of racism where appropriate. AA needs to change but not be
abandoned.
As I argued in Chapter 5 of my book, How We Are Our Enemy--And How to Stop,the concept of affirmative action should not be abandoned.
We cannot ignore the immense harm the false concept of “race” has inflicted on
us. It is wrong to close our eyes and just say, “Too bad, but there is nothing
we can do now.” Nonetheless, a shift needs to be made from a purely “racial” or
gender-based affirmative action to focus more on remedying the effects of
poverty and poor education regardless of the color, ethnicity or gender of
the victims.
The point is that we can attack the myth of “race” and at
the same time find ways to address the immense harm that the myth of “race” has
caused and continues to cause.
The parenthetical statement in my comment, “Even if they [races] existed, most
Americans are mixed with one thing or another,” is based on a book, DNA USA: A Genetic Portrait of America by Bryan
Sykes .
Here is the absurd Question 9 on the U.S.
Census Form:
One sure way to destroy the separation of church and state
is to treat science as a “faith.” I caught a Boston Globe columnist making this mistake and today (April 6, 2013) the Globe published my response
(page A8):
Don’t
confuse science with faith
KEVIN LEWIS (“Uncommon Knowledge,” Ideas, March 31 [Boston
Globe]) seems to misunderstand science when he asks, “Could a faith in
science similarly guide your values?” The question assumes that faith underlies
science in the same way that it underlies religion.
The difference between science, properly understood, and
faith is that science looks to experience to challenge and modify its own
concepts, whereas faith is adherence to given ideas regardless of experience.
John L. Hodge
Jamaica
Plain
As I’ve argued before, the survival and growth of democracy
depend on getting religion out of politics. Politics needs to be based on facts
(whether certain or probable), reasoned arguments and agreements. Science
belongs in politics; faith does not.
An
explanation of why the values of democracy require separation of religion
from government is contained in Chapter 4 ofHow We Are Our Enemy—And How to Stop.
A
thorough analysis of President George W. Bush’s belligerent views
connecting God to the United States is
contained in Chapter 3 ofHow We Are Our Enemy—And How to Stop.
(This post is the sixth in the
series--see links below for previous posts)
A recent event in Switzerland
illustrates the continuing role of government and the people in managing
corporate power. On March 3rd, in a national referendum, 68% of
Swiss voters approved a measure that gives corporate shareholders the right to
vote annually on senior managers’ pay and appointments. Corporate executives
who do not comply with this measure are subject to a penalty of up to three
years in jail or the forfeiture of up to six years’ salary. This new measure
will be written into the Swiss constitution.
Also in Switzerland,
the left-center Social Democrats are pushing another measure that would cap the
pay of senior corporate executives at twelve times that of the lowest paid
worker. At the moment there is not a likelihood that such a measure will pass,
but if it did, it would create a major upheaval in the corporate world.
Nonetheless, the threat of such a measure illustrates the power the people of Switzerland
can have over their corporations.
The potential danger to Switzerland
of measures like these is that Swiss corporations will pull out and incorporate
elsewhere, analogous to what happened in the United
States beginning in the late nineteenth
century when companies sought to incorporate in the states with the fewest
restrictions. (See previous post: “V: The
Transformation of the American Corporation”.) Corporate
executives in Switzerland
are making such threats in an attempt to prevent such measures from passing.
For now, however, the newly approved measure will probably
have little effect on the location of corporations in Switzerland.
Corporations are already drawn to the country by its low taxes, stable politics
and business-friendly laws. In other words, Switzerland
may be somewhat like the Delaware of Europe. But the measure approved on March
3rd suggests that this could change.
Switzerland
is not alone in seeking greater governmental control over corporate executive
pay. Reuters reports, “Brussels agreed [to] a cap on bankers' bonuses last
week and countries including the United States andGermanyhave introduced advisory ‘say on pay’
votes. Britain also wants to give shareholders a binding
vote on pay and ‘exit payments’ at least every three years.” (See link below.)
However, the Swiss
measure goes further than any of these proposals. In addition to enabling
shareholder control over executive pay, the approved measure also requires
pension funds to vote in the interest of its members and make their votes
public, and also restricts the financial dealings of Board members.
Unlike the
ill-advised “People’s Rights Amendment” being circulated in the U.S. (see my
earlier post:The Misguided People’s Rights Amendment), the measures taken in Switzerland and
under consideration elsewhere target particular problems with corporate power
rather than attack corporations as a whole as though they are all alike.
The Swiss measure
opens the mental door to consideration of other measures that could regulate
corporate financing of elections in the U.S.
(This post is the fifth in the series--see links below for previous posts)
During the second half of the nineteenth century, the American corporation underwent a dramatic change.
The early American corporations, while important, were not going to dominate business. The
reason: the existence of a corporation required a specific grant from a governmental
body, called a “charter.”
Since a corporation is a legal entity, not a natural one,
its existence requires a legal act. “The charter is a grant of authority from
the sovereign. It specifies the powers, rights, and duties of the corporation.”
(2), p.129.
The nature of that legal act, the charter, changed
dramatically toward the end of the nineteenth century. Until this change
occurred, charters were granted one by one, by legislative acts, to establish
corporations to do particular things. “Approval of a charter was a political
issue, involving lobbying, campaign contributions, and worse.” (3), p. 13.
Yet, corporations had an advantage over other business
forms. A corporation could raise capital quickly from a wide variety of
sources. The purchasers of a corporation’s shares risked no more than the cost
of the shares, while they stood to gain from the corporation’s success. The
corporation did not need to rely solely on the wealth of a few people. Instead,
it could obtain capital from numerous less wealthy sources, and the accumulated
amount of this capital could easily exceed that available from one or two
wealthy investors. To fund the industrialization of the nineteenth century,
such capital was essential.
In the eighteenth century, most corporations were chartered
for educational, religious or charitable institutions, or to create
municipalities: cities and boroughs. (See the previous post.) In that entire century, only 335 business had
received charters in the U.S.
(2), p. 129.
Industry in America
began its enormous growth beginning around 1825, not coincidentally the year
the Erie Canal was completed. Transportation and banking
infrastructure were essential to this growth. Railroads began to expand,
eventually connecting the Atlantic and the Pacific
coasts. Banks went from small clubs of merchants providing credit to one
another to chartered institutions that were essential players in the industrial
expansion. The chartering of corporations one by one was a clumsy process that
needed streamlining to keep up with and expand this growth.
This need was met by state legislatures, which, beginning
around 1850, began to replace the one-by-one chartering process with general
laws that simply required that a corporation can be created by filling out and
filing the appropriate forms. “Under a general corporation law, anybody who
wanted to could incorporate, and without wasting the time of the legislators.”
(2), pp. 390-91. Any restrictions on the corporation were stated in the general
law for all to see. Different states imposed different restrictions, but in the
beginning of this process, all states who had such laws exercised some control
over what corporations could and could not do. Massachusetts
and New York, for example, placed
upper limits on the size of the capitalization of any corporation incorporated
in its state. Some of these provisions controlled the price of shares and
specified what the corporation could or could not do without shareholder
approval. States also charged fees to incorporate. (2), pp. 398-99.
In spite of these restrictions, the move from one-by-one
chartering to a general law of incorporating evolved into a revolutionary
change that enabled corporations to become the dominant business institution of
the twentieth century, as they still are today.
Once a corporation came into existence, it was not
restricted to operating solely in the state of incorporation. Court decisions
essentially supported the idea that the U.S. Constitution, in particular the
Commerce Clause and the Fourteenth Amendment, protected the right of a business
to operate across state lines. This meant that, if a corporation wanted to do
business in New York, it could incorporate in another state with friendlier
incorporation laws, set up a storefront in the incorporating state, and do practically
all of its business in New York. (2), pp. 396-98.
The states, in turn, had an interest in drawing business to within
their borders. Businesses not only paid the states’ incorporation fees, they
also provided a source of income for the states through taxation, and they
potentially provided jobs. One way for states to attract businesses was by
removing restrictions on corporations and lowering the fees. The states began
to compete to be the least restrictive. Some other states simply did not
enforce the restrictions on their books. New Jersey
was the first to remove all significant restrictions. In its 1896 law, “a
corporation could be formed for ‘any lawful business or purpose whatsoever.’”
(2), p. 396. New Jersey quickly
became the preferred home of corporations. But New Jersey
then took a step “backward” and increased regulatory control over corporations.
(3), pp. 13-14.
In 1899, Delaware
passed its liberal incorporation law and did not step “backward.” It then became
the favorite state for incorporating businesses. (2), p. 399. Even though many
other states followed with equally liberal incorporation laws, Delaware’s
prior success allowed it to establish itself as the source of developed
corporation law and judicial expertise, thus adding more certainty and
stability to corporate law than other states could achieve. Delaware
remains the favorite home of corporations.
By the turn of the century, the American “corporation had
torn free of its past--it could be formed almost at will, could do business as
it wished.” (2), 399. This was possible only because states changed their laws.
But the same reasons that led them to change their laws remain as reasons they
are unlikely to reverse course and change them in the future to regulate
corporate power. They could but, most likely, won’t.
Still, the existence of corporations and the scope of what
they can do depend on the laws of the governments that enable corporations to
exist.
___________________________
References (the numbers correspond to the numbers above):
(1) John Micklethwait and Adrian
Woolridge, The Company: A Short History
of a Revolutionary Idea: Modern
Library, 2005
(2) Lawrence M. Friedman, A History of American Law, 3rd
ed.: Simon & Schuster
(Touchstone), 2005
(3) Robert W. Hamilton,
The Law of Corporations, 4th
ed.: West Publishing Co., 1996.
Corporations
as they exist today did not spring up all at once. It took several centuries
for the concept to catch on and be implemented as a way of doing business.
Viewing this history will help us to see the strengths and weaknesses of the
corporate structure and help us to determine how corporations might be steered
to contribute to the welfare of all instead of contributing primarily to the
profits of a few.
As this series continues, we will
also see more clearly the role governments play in making corporations
possible. The goal of this series is to provide a foundation of understanding
so that we may intelligently tackle the problem of excessive corporate
influence, particularly on the funding of electoral candidates. (1).
To
understand the role corporations play in the nation and the world, it is
crucial that we see that some very important corporations include more than
profit-making businesses.
The first
currently-existing corporation created on the soil of what is now the United
States is HarvardUniversity. (3). It was
incorporated in 1650 through the action of the Massachusetts
colonial legislature, called The General Court (as it is still called today).
Harvard’s existence began in 1636; incorporation came later. (2, p. 84). YaleUniversity received its charter of
incorporation in 1701. (4). By the time of the American Revolution, nine
colonial colleges had been incorporated. (2, p. 84). (Most private colleges and
universities today are corporations.)
In the
colonies, communities also sometimes were incorporated. Apparently the very
first corporation in the colonies occurred in 1587 when a grant from Sir Walter
Raleigh, acting under authority given to him from England,
created the city of Raleigh, Virginia
(2, p. 30), on an island (later in North Carolina) that was subsequently
abandoned. Although it was not always clear which entities had legal status as
corporations and which did not, there were roughly two dozen municipal
corporations created in the colonies, beginning in the latter half of the
seventeenth century. (2, pp. 50ff). Most of them survived up to and following the
Revolution. (2, p. 59). However, most cities and towns in the colonies were not
corporations or had a disputed legal status. (2, pp. 60-64). In addition to
municipal corporations, a few public corporations were established for the
purposes of charity or to administer loans. (2, p. 73).
In the colonies there was no clear
line separating public from private corporations, but the latter were more
directly financed and controlled by private parties. (2, p. 75). These private
corporations included many non-business entities, such as religious
institutions, e.g., churches and various religious societies. (2, pp. 75 ff).
The establishment of such religious corporations started at the beginning of
the eighteenth century. (2, pp. 75 ff). Many such institutions were not
corporations but enjoyed legal stability in other forms that varied
considerably over time and in different places. (2, pp. 75 ff). Private
corporations too included entities that were charitable, educational, or a
combination of both. (2, pp. 82 ff).
Business corporations existed prior
to the Revolution, but their influence was limited. (2, p. 87). Apparently the
first business corporation in America was established in 1589 when Sir Walter
Raleigh, under authority granted to him by the Queen, granted a group of men a
corporation for business. It did not last long. (2, pp. 31-32).
Subsequently colonial corporations
came into existence by receiving a charter from the colonial government with no
interference by the British. The governmental sources of these charters varied
across the colonies: sometimes it was from the governor acting alone, sometimes
from the governor with legislative approval, and sometimes from just the
legislative body. Most were set up for charitable, educational or religious
purposes; a few were for business purposes. There were also many corporate-like
associations and societies that lacked one or more of the formalities required
to create a corporation. (2, pp. 104-107).
As we shall see in subsequent
postings, it was not until the nineteenth century that the business corporation
took hold as an important and significant alternative way of doing business. Even
so, the concept of the corporation was controversial. The slowness of the rise
of the corporation was most likely because, until the middle of the nineteenth
century, corporations were too dependent on the governments that created them.
The existence of a corporation depended on a specific charter granted by the
appropriate governmental authority. For example, the governing body of Connecticut
granted a charter to the New London Society for Trade and Commerce in 1732, and
then revoked the charter a year later. (5, p. 43). The existence of any
particular corporation, therefore, depended on politics. Since one of the
purposes of a corporation is to have an extended life beyond the life of any
particular owner, there was little reason to form a corporation that may live
for a shorter time at the whim of the legislature. Educational, religious and
charitable institutions were on safer, less political ground.
As we shall see in subsequent
postings, the business corporation as we know it today requires some assurance
that its life would not be threatened by a change in the composition of the
legislators or governorship in power at the time of the corporation’s creation.
__________________________
References (numbers correspond to the numbers in the preceding
text):
(2)Essays in the Earlier History of American
Corporations, Vol. 1, by Joseph Stancliffe Davis,
New York: Russell & Russell, Inc.
(1965) (originally copyrighted in 1917).
(3)Harvard’s
website (as of this posting) claimed that Harvard is the oldest corporation in
the Western hemisphere (http://www.harvard.edu/harvard-governance).
It does appear to be the oldest existing corporation in the United
States, but verifying that the original
inhabitants and the various European colonists did not establish an earlier still-existing
corporation somewhere in the Western Hemisphere would be
difficult if not impossible to do.
(5)John
Micklethwait and Adrian Wooldridge, The Company: A Short History of a
Revolutionary Idea (New York,
2003; page references are to the paperback edition, 2005).
We typically blame individuals for
bad and terrible things. By blaming individuals, we excuse the institutional
and cultural frameworks that provide the channels for the individual acts.
We
are all responsible for allowing these institutional and cultural channels to
continue. By blaming the individuals for their acts, we absolve ourselves
and pretend the wrongdoing has nothing to do with us. But these institutional
and cultural channels--including the lack of gun regulation and the level of
violence we accept as entertainment--made possible the terrible massacre in Newtown,
Connecticut.
These channels will not end
overnight. Accordingly, there will be more massacres of the innocent. Nonetheless,
we must fight for change or it will only get worse.
The following letter was published by the Boston Globe on November 16, 2012, p. A14, and online at BostonGlobe.com:
Faith groups should lose tax break when they enter politics
Step by step, we are allowing religion to intrude further and further into politics. Ballot Question 2 and the laws governing abortions, for example, are political issues. Yet current interpretation of tax law allows churches and religious organization to raise money in support of their views on these political issues with no consequences to their tax-exempt status (“Bishops adopt a mandate,” Metro, Nov. 13 [stating
that the Catholic Church helped raise over $4 million to oppose a proposition in support of physician-assisted suicide]).
By allowing religious organizations to raise money for political causes through tax-exempt donations, we are giving them a privileged position. Our tax laws need to change or be interpreted to remove this privilege and put these groups in the same position as similarly situated nonreligious organizations.
The issues of abortion and physician-assisted suicide concern the laws by which the public desires to be governed consistent with our constitutional rights. These laws are political in that they affect everyone without regard to religion. Religious matters, on the other hand, properly pertain only to the members of the religious organizations to which they belong.
When religious organizations raise money to support or oppose laws that affect nonmembers, they overstep their role and become political organizations.
The public should fight back and call for taxing the contributions to these organizations when they engage in fund-raising to support political positions.
An explanation of why the values of democracy require separation of religion from government is contained in Chapter 4 ofHow We Are Our Enemy—And How to Stop.
A thorough analysis of President George W. Bush’s belligerent views connecting God to the United States is contained in Chapter 3 ofHow We Are Our Enemy—And How to Stop.
Alissa Pugh might be in prison now if the Massachusetts highest court, the Supreme Judicial Court, had adopted the Republican party platform’s position on
rights of fetuses. Her fetus died during an unattended home delivery. She was prosecuted
and charged with manslaughter, convicted of involuntary manslaughter and
sentenced to two and a half years in a house of correction. The Supreme
Judicial Court (SJC) reversed her conviction. (Commonwealth v. Pugh,
decided June 15, 2012.)
After experiencing pain at work, Ms. Pugh went home to give birth to what would
have been her second child. Instead of feeling a baby’s head emerging during
the birth as she anticipated, she felt a foot. She somehow managed to give
birth on her own, but the baby was blue. She tried to resuscitate it, but
failed. This event led to the charge of manslaughter.
With her attorney, she chose a trial without a jury. The judge determined that
she had a legal duty to seek medical assistance. Her failure to do so
constituted wanton or reckless acts against her viable fetus. Thus, he
convicted her of involuntary manslaughter, a lesser version of manslaughter.
We must be careful at this point not
to blame the judge who convicted her. He was in a difficult spot. The law of Massachusetts at the time was sufficiently unclear that an argument
could be made for conviction. The only way to make the law clear was to get the
case before the SJC. If he had acquitted her, the case would have ended and not
gone to the SJC, so the law would have remained unclear. If he convicted her,
he had good reason to believe that the case would be appealed and that the SJC
would rule as it did. It is likely that this is what he was thinking. He
suspended her sentence pending appeal, so she did not actually serve any time.
The SJC ruled as anyone familiar with this progressive court would expect. While
determining that the facts did not support the conviction, the Supreme Judicial Court, in a unanimous opinion, also determined that Ms. Pugh
had no legal duty to seek medical assistance for the birth. “Medical assistance
imposed by the judge in this case would amount to a significant incursion on
the birthing woman’s liberty interest in freedom from an unwarranted degree of
government surveillance and coercion.” In effect, the court acknowledged what I
stated in Part I of this series.
The Republican platform says something quite different. It states, “We
support a human life amendment to the Constitution and endorse legislation to
make clear that the Fourteenth Amendment’s protections apply to unborn
children.” The Fourteenth Amendment provides that a state may not “deny to any person
within its jurisdiction the equal protection of the laws.” The platform also
states that “the unborn child has a fundamental individual right to life which
cannot be infringed.” (These words have been there and repeated since 2004.)
Thus, the Republican platform treats the fetus, viable or not, the same as a
child or an adult. Whereas the Supreme Judicial Court has said that “there are inherent and important
differences between a fetus, in utero, and a child already born,” the platform
removes that distinction. By taking a slightly different view of the same
facts, a court that followed the Republican platform would have upheld Ms.
Pugh’s conviction.
The Supreme
Judicial Court
was mindful of the implications of a conviction. “Every decision a woman makes
during her pregnancy, medical or otherwise, could have a profound impact on the
fetal life inside her.” There are “countless ways in which a woman can be
perceived to endanger her fetus during pregnancy or childbirth.”
The Supreme Judicial Court realized that a conviction would mean that these
“countless ways” could all be subject to governmental surveillance and
intrusion to protect the fetus, just as I explained in Part I. The court’s
decision protects pregnant women. The Republican platform does not. In
asserting the equal rights of the fetus, the platform would open the door to
governmental surveillance and intrusion into the lives of all pregnant women.
It is likely that some courts in some states will reject the position of the
SJC and make every effort to follow the intent of the Republican platform.
As I stated in Part I, since Mitt Romney has not
repudiated this part of the Republican platform, it means that, since he is a
Republican, we must assume that he supports it. If this part of the platform
were implemented, many women who do not seek an abortion will nonetheless go to
jail if their fetus dies.
Thus, much is at stake in this presidential election--the
rights of women and the very meaning of democracy. But after the election, even
if Obama wins, the Republican platform advocating giving equal rights to
fetuses will continue to threaten the rights of women and the values of
democracy.
