Is Corporate Personhood White?
The modern concept of “race” seems to rise above the cultural structures by which society organizes itself. Though that privilege was called in question by the suggestion that “race” is a “social construct,” it still remains to articulate the structure of that construct? For instance, the issue of whether “race” is a noun or a verb has still to be debated. As a verb, it is an avatar for “to racialize,” which refers to what one group of people does to others. And that suggests that “race” cannot be understood apart from its history.
The issue we raise here is that the history of race cannot itself be divorced from the parallel development of the corporate structure. Is it possible that the corporate structure was actually midwife to the birth of race, whiteness, and white supremacy? Would that not suggest an intimate relation between corporate personhood and white racialized identity. How could that be? A relation between an artificial social structure and a form of human identity? What would the unwitting revelation be in such a relation?
The complete history interlinking “race” with the corporate structure is too complex for a small article like this. We can however get a taste of it by examining two points in that double trajectory: the birth of white racialized identity in the 17th century Virginia colony, and the 19th century invention of corporate personhood.
The discussion here will not be an anthropology. Nothing that occurs with respect to the corporate structure has not been intentional, while anthropology pretends to study what evolves impersonally from a people. Conversely, to think that racism is simply an effect of prejudice or false consciousness is coherent only by ignoring the cultural effects of contextualizing social dynamics, such as colonialism, and the rise of the multinational corporation.
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Return with me, please, to the Virginia colony, founded in 1606 by English nobles and a passel of English bond-laborers under contract. Administratively, the colony was organized as a corporation (“the Virginia Company”), directed by a Board of Directors in London, with an on-site subsidiary Board called the Colonial Council. The overall purpose of the enterprise was 1) to be profitable, and 2) to provide dividends for investors (that is, to be profitable). The responsibilities of the Virginia Board of Directors (Va BoD) were to parcel out the land, to find markets for what the colony produced, and to insure the existence of sufficient labor for colony productivity.
The English laborers, held under indentured contracts, were essentially “chattel,” or “objects” owned for the term of their contracts. The typical contract held a person in thrall for 14 years, granting a small parcel of land and some money upon release. Whether the money and land were provided by the contractor (owner) or by the colony was a condition stated in the contract. Insofar as “chattel” signified that persons were “things,” they entered into bartering exchanges as economic value, and could be used also for payment, to cover the interest on debt, or to be given to someone as a gift, etc. The “sale” of a bond-laborer was accomplished by exchanging the contract for money. The buyer of the contract would thus become the new “owner” of the person.
At first, the colony came close to perishing, unable to figure out how to make this un-English land produce like English land. Though the Algonquian societies nearby were accomplished agrarians, the corporate BoD scorned them and their advice. Indigenous life did not correspond to BoD’s preconceptions of what the colony needed to do. As English people got sick and died, the colony raided the indigenous and stole food from them. In the corporate mind, there was an inherent right to seize the indigenous, their land, and their skill as corporate assets. Even today, that same arrogance infects US corporate relations with the rest of the world. Many Latin Americans migrate to the US because US corporations have impoverished their home countries, seizing their “assets” (resources, labor, productivity, financial reserves, etc.) through imposed debt or forced sale.
The first successful product of the colony was tobacco, a drug. (Cotton didn’t become a primary export crop until the invention of the cotton gin.) Tobacco was a drug that became immediately profitable in Europe. And it came to serve as a form of colonial currency used for payment. It was the cultivation of tobacco that turned the colonial landholdings into plantations.
Tobacco production is labor-intensive. When a Dutch slave ship showed up in Jamestown in 1619 with 20 Africans unpurchased in the Caribbean Islands, the Va BoD paid for them and distributed them to the plantations.
At first, these and subsequent African arrivals were held under typical contract conditions, 14 years and out (with land and money). The Va BoD however decided that the Africans were not eligible for the “protections” of English law, and so they were not given contracts. Some were actually released after 14 years of labor. But the colony gradually ignored its own principles, and started to hold Africans for longer and longer periods. The reason for this was the exchange market for laborers. When bond-laborers under contract were sold, the proximity of their release date was a factor depressing their price. That decline in laborer value, which was accounted as estate wealth, could be increasingly ignored with respect to the Africans, who had no official release date. This neglect empowered the colonial tendency to impose perpetual servitude on the Africans, giving them a different form of asset value – though that tendency remained a contested issue well into the 1660s.
What solidified African bond-laborer existence as assets (tradable elements of structural wealth) was the auction market system. Transference of an English laborer was accomplished by transferring the contract. Since Africans didn’t have contracts, they could only be sold in person. As a marketplace developed, so auctions were institutionalized. They created a sense of “standard” value for different body types, in the same way that securities markets today establish asset values for the securities of different corporations. The existence of such standards meant that plantation owners could calculate their total estate value, and claim political advantages based on that (in colonial society, Virginia and Maryland by that time, political power accrued directly to wealth). Thus, under the force of economic and political power, the drive to hold all Africans in perpetual servitude was irresistible.
This historical process was quite distinct from that evolving in the Caribbean and South America with respect to enslavement. The Spanish and Portuguese plantation systems were based on royal military conquest, and worked laborers under an attrition system. It was cheaper to subject them to starvation conditions and replace them with new arrivals from the slave ships. It was a continuation of the initial colonization, which totally depleted indigenous populations on islands and areas of South America. It was the English labor contract system, originally using English bond-laborers, that set the English colonies on a different trajectory, and eventually produced the notion of person as a corporate asset.
The denial of legal rights to Africans was the first step toward the invention of “race.” The second step was the colony-wide shift of the labor force to Africans (after the 1650s), which augmented the distinction between colonial subject and colonial asset. It was that distinction from which a white identity first appeared in Va., in the 1690s. When the English first came to North America, they didn’t see themselves as white (racially). Their first official reference to themselves as white occurs in 1691. It was only as a form of social identity. It became a cultural (racialized) identity in the 1720s with the organization of the slave patrols. They raised violence against the black bond-laborers to the level of a norm. [This history is recounted in greater detail in my book, “The Rule of Racialization.”]
In short, it was the confluence of economic and political structures in the colony that produced the white racialized identity that then fostered its own culture of racialization. As a footnote to this process, and the fact that it took the English almost a century to racially identify themselves as white, when the first Africans were introduced to the colony in 1619, and with the subsequent arrival of others, intermarriage was common. Apparently the Africans and English found each other fairly attractive. The landowners’ desire to set the Africans aside for perpetual servitude led to the passage of a string of anti-miscegenation laws, all of which failed miserably in their goal. In the process, the VA BoD went so far as to overturn the most basic European patriarchal norm, namely that children take the class status of the father. In 1662, totally in service to the augmentation of corporate asset values and plantation wealth, the Va BoD ruled that a child of racially mixed parentage would take the servitude status of the mother rather than the father. The child of a black woman would be black, and enslaved. This in turn led to severe penalties for a white women who bore the child of a black man. When the anti-abortion movement seeks to legislate women’s relation to their child producing capacity, it is following in the footsteps of colonial development of enslavement.
As another footnote, the emergence of a white identity from a social distinction imposed on the Africans reveals that whiteness came first as a racial identity. It formed the basis on which certain European narcissistic taxonomists, such as Linnaeus or Buffon, thought to divide humans as a whole into races as subgroups. Their theorizations create a mindset of white race primacy and hegemony that then served to rationalize European conquest of others.
Corporate Personhood
Thus we see that, at the foundation of what eventually became the US, the corporate structure was already acting to change the concept of a person through its role in the emergence of “racial” difference. Let us move to a later moment when US jurisprudence decided that “personhood” itself could be changed to fit the corporate structure. It was a moment in proximity to that in which black people were denied any juridical claim to personhood itself.
In popular belief, the source of corporate personhood lies in an 1886 Santa Clara railroad case. That is a mistake. Its real source is to be found in another railroad case that came before the Supreme Court in 1844, called the Letson case. The chief justice on the court at that time was Roger Taney, whom we remember as the author of the Dred Scott decision in 1856. The latter decision barring black people from US citizenship and personhood, and the former granting those same designations to corporations, both emerged from the same mind, using parallel reasoning.
The Letson case arose because railroads were involved in interstate commerce, over which Congress was Constitutionally given jurisdiction. Problems arose because corporations were chartered by states, so malfeasance resulting in court action in a state other than the home state of the enterprise could only be heard in federal court. For a corporation to be able to respond to such suits, it would have to have standing in the federal court.
Constitutionally, only “persons” had such recognition. For Taney, the needs of interstate commerce implied that, if a corporation was to have federal court standing, it had to have personhood. And that, in turn, implied federal citizenship. It was Judge Taney’s concept of corporate personhood that more recently was the basis for the Supreme Court decision in the “Citizens United” case. That decision held that corporations had the right to participate in elections as persons. Though they could not vote as entities, they could express themselves (under the 1st Amendment) by other means, which included donating large sums of money.
When, in 1856, Mr. Dred Scott appeared before Taney’s Supreme Court, he was suing for his freedom. He had been taken to a free state from his home state of Missouri by his “owner.” While there, he was considered a free man, and had gotten married. While still under tutelage to his erstwhile owner, he returned to his “home state” and sought to live as a free man, having been recognized as one during his sojourn in the other state. When his erstwhile “owner” denied him that right, he sued. And the case went to the Supreme Court.
Once again, that structural linkage between the corporate structure and the structure of racialization raised its ugly head. Taney denied Scott his freedom using the same arguments he had used in the Letson case, only in reverse, or rather, turned upside down. Black people had never had standing or citizenship at the federal level, he claimed, and so could not claim personhood or freedom at the state level. Taney referred back to English colonialism, and to its reduction of black people to their status as assets, wealth, things (three-fifths, etc.) to be controlled by “persons” (white or artificial). Thus, while the difference between federal and state power was used to give corporations personhood, the same difference was used to deny black people their existence as persons.
As a Supreme Court decision, the case guaranteed the sovereignty of the slaveholding class, and put a huge crimp in the abolitionist movement of that time.
This quirk of dual power in the US enabled Taney to complete a transformation in jurisprudence that the corporate structure had initiated in 17th century Virginia. Today, at the core of US jurisprudence, and still at odds with US ostensive philosophical principles, there is an acceptance of rule, control, and cultural hegemony by artificial (non-human) entities (the corporate structure) that takes its initial colonial establishment as its precedent. In a strong sense, the system later established by Jim Crow legislation both rendered black people non-persons as corporate assets and deputized all white people as a “patrol” or managerial class over them. And today, not as political representatives of a constituency, but as corporate entities acting in the name of political party competition, half the states of the US are working hard to obstruct or deprive black people of full voting rights.
As we watch oceans die, tornadoes arrive in teams, glaciers melt, and entire communities get destroyed in the interest of resource extraction, we can recognize that there is a destructive core to the corporate structure to which mere capitalism has never been able to lay claim. The primary difference between the two has been capitalism’s dependence on labor for its earnings, whereas, as we see more and more clearly every day, the corporate structure profits most from the “earnings” in securities trading, and the ever rising prices of stocks and derivatives (as a financial reflection of corporate amassing of asset value). Capitalism needed to guarantee a certain level of survival for its labor forces, whereas the corporate structure can dispense with any community that gets in its way (witness that fracking is still going on in the US, destroying both geologies and ecologies).
Where real estate corporations today enrich themselves by buying houses (rented or not) as an increasing mass of assets (whose primary effect is to increase housing prices and rents), so colonial corporations enriched themselves by turning people into assets (and which is still the primary effect of racialization).
Corporate personhood evolved in tandem with the structures of racialization, and the production of racialized groups. If “race” is the verb “to racialize,” as something that one group of people does to others, it means that black people were not born black but were made black by white supremacy in the same sense that white people were not born white but were made white by white supremacy. And if the corporate structure is intimately involved in this process, it not only forms part of the structure that makes black people black in the process of making white people white, but therefore implies that corporate personhood is itself actually white.
As we seek to grasp the true meaning of our climate crisis, we must not neglect to recognize the cultural contribution of white colonialism and white supremacy to the pillaging of the planet and its people, through its corporate structure.
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