“We the Corporations” - conversation with Adam Winkler professor of law

I thank you for accepting the participation in this interview series. You are the author of the recently published book “We the Corporations: How American Businesses Won Their Civil Rights” in which you highlighted that since the early years of the United States, corporations have been fighting for the recognition of their constitutionally protected rights and they were among the first to succeed in this endeavor. You are also arguing that the most remarkable story in the history of constitutional law is how the corporations by becoming “constitutional innovators” won constitutional rights over other groups in the society. Can you shed you some lights on these very interesting observations and explain them in more details?

I thank you for having this interview and discussing my book. The civil rights movements are really central in how we understand the American law and Constitution. Many of the most important stories we teach to our school children are about fights by excluded groups to gain inclusion, for example African Americans, women and other minorities who were not really part of the “We the People” at the founding of this nation but struggle to gain equal rights. But while Americans learn about the civil rights movements or the women rights movement, there has also been a corporate rights movement. Like minorities and women, corporations have also been fighting to win equal rights since America’s earliest days. They used those rights to overturn laws regulating business.

When we think about civil rights movements, we tend to think about people marching in Washington with signs and protesting. But America’s most powerful corporations do not march on Washington. Instead, they have sought expansive Supreme Court rulings recognizing their fundamental rights and their constitutional protections. Today, corporations’ have nearly all the same rights as you and me. Therefore, “We the corporations” tells that two hundred years history. It is indeed a two hundred year history. The first Supreme Court cases granting rights to corporations were decided in the early 1800s even before the first Supreme Court cases recognizing the rights of women or African Americans. So corporations have been fighting for a long time for equal rights and today they nearly have the same rights than you and me.

But by being so successful, did not corporations “hijack” the Constitution that is designed for the protection of ordinary people?

Well, I think the world “hijacked” may present this controversy too one-sided. While there is no doubt that corporations did secure constitutional rights that were not originally intended for them. So we might say that they “hijacked” those rights. But I think the story is a bit more complicated than that. It is clear that the framers of the Constitution were not thinking about corporations when they wrote the Constitution. But it did not take long for corporations to seek the protections of the Constitution. From very early days, the Supreme Court has been agreeing with corporations. Indeed, for most of the America’s history up until the 1950s, the Supreme Court tended to rule against minorities and women in civil rights claims. But all the way in the early 1800s, the Supreme Court is ruling in favor of corporations winning constitutional rights. I think part of the story here is that America has had a very business friendly Supreme Court who viewed corporations and capitalism as positive goods for America. So the Court has gone out way to protect corporations.

But I say it is one-sided because corporations fighting for their civil rights have expanded the rights of everyone. Corporations have been “constitutional innovators” and first movers at the cutting edge of constitutional law. The innovative lawsuit fought by corporations often tended to expand the rights of ordinary people too. For instance, the very first Supreme Court cases striking down laws for violating freedom of the press were brought by newspaper corporations. Those landmark decisions still now protect not only newspaper corporations but any speaker or writer who wishes to use the freedom of the press. Corporations were also at the forefront of 14th amendment rights of equal protections and due process helping to breathe life to those constitutional guarantees too. Corporations were also first movers in the area of Fourth Amendment privacy what protects you against unreasonable searches and seizures. Some of the earliest cases were brought by businesses seeking to fight off government efforts to inspect their inventory.

Speaking about corporations and privacy, the famous Justice Louis Brandeis comes to mind who once said the memorable words: “the curse of bigness”. In his view the bigness of business comes with a serious political and economic cost? Do you see a parallel between the expansion of constitutional rights of corporations and the phenomena of “big business”?

Yes, I think that constitutional right is one of the ways in which businesses have become even bigger while certainly, constitutional rights would not the main reason. Constitutional rights have helped corporations fight off efforts to regulate them and keep them small. Corporations have used constitutional rights to fight back against antitrust suits. Corporations have also used constitutional rights to expand their powers in both politics and economy helping to lead to even bigger businesses. Justice Brandeis was a critique of the big corporations and thought that big corporations hurt competition. Corporations have used their constitutional rights to fight off laws that have been designed to enhance competition.

Do you see parallels between the era when the late Justice Brandeis lived, the so called “Gilded Age” of the late 19th century and today’s America in terms of economic concentration and the dominance of large corporations? If so, what are the constitutional threats?

I think there are some parallels the “Gilded Age” of the late 19th century and today. For instance, the “Gilded Age” was one of concentration of wealth in the hands of the few. Today we are experiencing income inequality and concentration of wealth in similar pattern. The “Gilded Age” saw the rise of mega businesses, large national businesses and even international businesses. There were unlike we had seen before. Today we are also in another period of concentration and conglomeration where fewer and fewer business can control more and more of the economy. However, at the same time, we are in a different era. We are in an era of much more advanced capitalism and development than we were at the “Gilded Age” which was right at the beginning of the industrialization. There are differences between today and yesterday. But it is helpful to see the similarities so that we can understand some of the problems that we are facing.

What we are witnessing in the new century is economic globalization that led the emergence of transnational corporation on the one hand and digitization that is energizing and empowering large tech companies on the other hand. The transnational businesses are increasingly fighting for not only their constitutionally but also for their internationally recognized rights and against government regulations. What are the dangers they can pose?

One of the greatest challenges we are facing in this age is how to regulate the large transnational corporations. It becomes harder and harder to regulate a transnational corporation with domestic governments. The corporations now operate in a different environment in which they can pick and choose the country that they wish to base themselves out of and the laws which they wish to follow. So it is increasingly hard for ordinary domestic governments to adopt effective regulations of big transnational corporations. At the same time those corporations are able to use the new environment to expand their powers and increase their profits. They can play governments off each other seeking the best deals, best tax breaks, best labor deals, and best zoning rules while moving around the world their operations, their factories or their productions.

What are the major dilemmas that large tech companies pose?

The large tech companies pose a different dilemma. The tech companies are not necessarily immune to government regulations but the governments have given them a degree of immunity. So in the United States for instance the companies that are working on the Internet gain a certain amount of freedom, because the US law has said that the Internet providers and platforms cannot be held responsible. But there is no reason why they cannot be held responsible other than the law in the books. It is a policy choice we made to allow the Internet and the tech companies to be relatively unregulated. But we could choose to take a different approach.

How do you see the role the Supreme Court and constitutional courts around the word in offering remedies to these cutting edge challenges?

The courts are fighting uphill battles because law makers and legislatures have often given these big companies a degree of freedom, such as with the law regulating the Internet. It makes the Supreme Court and courts elsewhere less relevant to the effort to regulate businesses. Just as it is hard for the legislatures to regulate big tech companies, it is hard for the Supreme Court to step in and impose rules and regulations on them either. In addition, these are transnational corporations and often these courts are restricted in which companies they have jurisdiction over. The only effective way for regulation is through international law and international treaty making process.

Last but not least since we spoke about courts I want to ask your view on the unique "Anglo-Saxon" culture of open and free debates around court decisions. In contrast with the public debates in Europe where courts and their decisions are almost taboo, Americans do not shy away from engaging openly and genuinely in debates around court decisions and their impacts. How do these open debates enrich public debates and strengthen the democracy itself, and what we can learn from them in Europe?

I think in the United States we view the Supreme Court as simply another branch of government. Like all branches of government, they should be subject of public criticism and debate and there should be transparency of what they do. Part of the story in America is that the courts can say the final word on all of the controversial issues such as same-sex marriage to guns to transgender rights to the environment. The courts are playing a decisive role in these issues. It is natural for Americans to openly debate, discuss, criticize and argue about Supreme Court rulings. These rulings are so essential and fundamental to how we organize our society that you want to have a vibrant democracy “We the People” must be able to criticize and analyze the work of the judiciary. There is no reason why the courts should be immune from that deliberation. There is good reason to keep judges unaccountable to the popular will. We should not elect our judges, however, in America we often do. But certainly their opinions should be something that we engage in open dialogue because their decisions really do play an important role in shaping the life of every American.

I thank you very much for your valuable insights!