Maybe I should wait to write this review until blood stops pouring out of my eyes, but where’s the fun in that? Skimping on exclamation points never helped anyone. I’m not going to tell you that big corporate conglomerates are the good guys; I’m not even going to tell you that I totally agree with the Supreme Court’s interpretation of the Fourteenth Amendment during the Lochner
era (though the reasoning from those interpretations has resulted in a lot of what I consider good outcomes - like how the government can't arrest people for using contraception or being gay). But, I am
going to tell you that Thom Hartman makes so many basic (wrong) assumptions about the Constitution in Unequal Protection
that it makes the book completely irrelevant to any discussion of actually limiting corporate influence over Amernican government. It might be my loathing of historical fiction talking, but this book totally sucks.
There are parts of it that don’t suck, but where it doesn’t suck, more recent legal developments have made it obsolete, or sucky assumptions have infested the non-sucky-parts. Sorry, Mr. Hartman, I mean this with all due respect, and you are obviously a much more influential person than me, so I hope that instead of taking offense, you will invest in a constitutional law class.
The basic assumptions I see causing so much confusion in this book are the following:
1. That the Constitution guaranties any blanket rights;
2. That including corporations in the Fourteenth Amendment makes their treatment under the Constitution similar to humans; and
3. That it is possible to limit corporate rights without increasing government rights.
There are many, many other assumptions and errors in this book, but those seem like the ones that are most fundamental to the premise of the book and that most make this book irrelevant to any real solution. I’m going to discuss those assumptions in the order I listed them.
First, it’s important to be clear that the Constitution doesn’t guaranty any blanket rights. It doesn’t guaranty that you can say anything you want to say, carry guns, be free from searches or slavery, have a jury trial, or vote. What the Constitution does is limit the government. Congress can’t pass a law that infringes on speech; Congress can’t pass a law that infringes on your right to carry guns; the federal government can’t unreasonably search your stuff. The Constitution formed the federal government; it didn’t form anything else, so it doesn’t govern anything else.
States gave up some rights when they signed on to the Constitution, so in some ways it applies to states. Through the Fourteenth Amendment, the Supreme Court has applied the other amendments to the states, so they are an exception to the rule that the Constitution only governs the federal government. Like the federal government, state governments can’t infringe on certain rights. While the Constitution identifies rights, it doesn’t guaranty that people always have those rights. I can infringe on someone’s speech, and, unless there is a statute prohibiting my infringement, get away with it without punishment. My boss can infringe on my speech, with a few limited exceptions. Goodreads, as another example, can take down my reviews if it wants to, and I have no recourse other than getting really, really mad and talking shit about it.
So, my point is that you’re a Supreme Court Justice, and you’ve got this case in front of you. Some doofuses (Congress) wrote a statute, and it says, “Any person who dumps more than five teaspoons of toxic waste into the Mississippi River has to pay the neighbors one-hundred jelly beans per teaspoon of toxic waste.” So, now BP has dumped six teaspoons of toxic waste into the Mississippi, and it’s claiming that the statute doesn’t apply to it because it’s not a person. Do you think Congress meant to include BP when it said “any person,” or not? Was Congress thinking about who was doing the dumping, or was it just thinking about punishing anyone (or thing) that dumped?
It is the same with including corporations under the Fourteenth Amendment. The focus of the Amendment is to restrict states
from infringing on certain rights. So, then, are states not restricted as long as the rights they’re infringing are the rights of corporations? Maybe. But, then what if states decide than only corporations can buy property? So, you form a corporation, buy property, and the state can search it any time it wants to. Or, don’t worry, if you already own property, you’ll be granted a free corporation in your name by the state, and your property ownership automatically transfers to that new corporation, but the Fourteenth Amendment doesn’t apply to your property. I’m not saying that would necessarily happen, but if a state can perform warrantless searches just because the land it is searching is owned by a corporation, that seems like undermining the basic purpose of the Fourteenth Amendment to me. Its purpose is to restrict state
power, not to grant rights to anybody.
Second, including corporations under the Constitution doesn’t guaranty that the government treats them the same as humans. Maybe that is just self-explanatory. All it means is that states and the federal government don’t get a free pass in whatever the limits on their power is, just because they are dealing with a corporation. The criticisms Hartman makes of the Santa Clara
decision are true in many points (specifically, in his pointing out that it doesn't actually do what the basic premise of this book is claiming it does), but I completely disagree that a solution to corporate abuses is to allow states and the federal government to have complete freedom in governing corporations. Saying that states can’t deprive corporations of property without due process does not mean that corporations are similar to humans. I won’t go into the equal protection clause now, but it would, likewise, be weird to me if it didn’t apply to corporations. And neither of those clauses make corporations similar to humans, they only restrict state power.
Third, the way to limit corporate rights is to increase government regulation of corporations. Somehow, that idea gets glossed-over in this book. The reason I feel this avoidance from the book is because he references Jefferson a lot
and the idea that Jefferson would have wanted to replace corporate rule with agency rule is totally outrageous to me. I mean, Jefferson was like a Clarence Thomas-style nut about anti-regulation, as far as I have ever read. To me, you can't be proposing government regulation and citing Jefferson as your founding-father backup. That's the way to get a zombie Jefferson stalking your home, looking for blood.
Anyway, maybe Hartman is assuming that applying the Fourteenth Amendment to only humans would increase regulation, but that seems far
from correct to me. This year, I accidentally organized a panel at a conference that turned into recruitment for a militia hoping to destroy American infrastructure. I’m not kidding – at one point a speaker put up a slide on U.S. military strategies for fighting asymmetrical warfare. It was very troubling. Flannery was there, she’ll tell you. When people asked the speaker what her plans were for rebuilding society after she’s destroyed it, she carefully avoided saying that she wants to return to a hunter-gatherer society (which is what she wants to do, I believe). This review
does an excellent job of discussing how unrealistic that idea is. There is a similar dissonance in Unequal Protection
, where Hartman carefully avoids telling you that his solution to the evils of big business is to create big government.
Don’t get me wrong, I think that’s a good solution. I have been saying for years that we live in a feudal society, in which corporations are our feudal lords, and I completely agree with Hartman on that point. I do not, however, agree that the alternative is democracy. Hartman sets up the dichotomy that we could live in a democratic society, but a feudal society has supplanted it. I think that is false, and that feudalism and democracy are not mutually exclusive. I think you can have a democratic feudal society, and that is probably what we have. I think the alternative to Hartmann's feudal society is a socialist society. Personally, socialism, which I would argue is just another variety of feudalism in which government officials act as feudal lords, sounds way better to me than Hartmann's feudalism, but it is not very popular with real
Americans, so I can see why Hartman sidestepped the issue. I think that when a stronger government supplants strong business interests, the nominal
purpose, at least, is the public good. When business interests rule, that is not even a nominal purpose.
The real problem Hartman flatly (and wrongly) denies is in corruption. When regulators are giving BJs to corporations, there is a problem. And, I think it’s pretty clear that regulators are, for the most part, giving BJs to corporations in America, but also in other countries. The solution to this isn’t allowing more
government abuse (as in, giving states the right to bypass the restrictions of the Fourteenth Amendment), it is to give the government more regulatory power over corporations. It is to require rich people to pay enough taxes that the agencies that catch corporate crimes can actually do their jobs.
Sorry, Brian. This book practically killed me. There is a sentence towards the end of this book that I can’t find now about a constitutional-law scholar who said he practically passed out when he read what Hartman’s ridiculous proposals were. That guy. I feel like that guy. I LOLed. I could go on about the errors relating to equal-protection analysis, and the founding fathers, and the restrictions on international treaties and tribunals, but you’ve probably already left the review by now. I’ll just tell you that this is a completely unreliable source of information about constitutional law. It is incorrect in ways that are both fundamental to the nature of the Constitution and ways that are trivial, but misleading. Completely exasperating.