So where do we get today’s assumption that a corporation is fully entitled to the constitutional rights of the American people? It was a mistake!
The mistake came in the writing of a “headnote” to the U.S. Supreme Court’s 1886 decision in an obscure tax case called Santa Clara County v. Southern Pacific Railroad. (I’ll not burden you with any minutiae from this case, which involved, of all things, the county’s right to tax some of the railroad’s fence posts).
As Hartmann details in Unequal Protection, the railroads pushed hard in this unheralded case to get the court to rule that corporations have equal taxation and other human rights under the Fourteenth Amendment. Chief Justice Morrison Waite, a failed Ohio politico and former railroad lawyer, seemed a likely bet to do the corporate bidding—but he did not. The court decided in favor of Southern Pacific on the mundane fence-post matter, but it specifically dodged the immense issue of personhood. It held no open court discussion about it, wrote no opinions mentioning it, and rendered no judgment on it.
But a court reporter, J.C. Bancroft Davis (a former railroad official), wrote the headnote to the decision—a headnote being a summary of the case, for which reporters like Davis received a commission from the publisher of these legal documents. Davis’s lead sentence declares: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny any person within its jurisdiction the equal protection of the laws.
That’s it. A clerk’s personal opinion, carrying no weight of law and misinterpreting what the court said—this is the pillar on which rests today’s practically limitless assertions of corporate “rights.” Davis later asked Chief Justice Waite whether he was correct in saying that the court had ruled on corporate personhood, and Waite responded that “we avoided meeting the Constitutional questions.”