Wed Mar 7th, 2018 at 05:21:46 AM EST
SCOTUS NEVER RULED THAT CORPORATIONS ARE PEOPLE
'Corporations Are People' Is Built on an Incredible 19th-Century Lie
How exactly did corporations come to be understood as "people" bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre--even farcical--series of lawsuits over 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day. That corporation was the Southern Pacific Railroad Company, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment.
The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation). More than most lawyers, Conkling was seen by the justices as a peer.
It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific's behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing "citizens" with "persons" in order to cover corporations too. Laws referring to "persons," he said, have "by long and constant acceptance ... been held to embrace artificial persons as well as natural persons." Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.
Years later, historians would discover that Conkling's journal was real but his story was a fraud. The journal was in fact a record of the congressional committee's deliberations but, upon close examination, it offered no evidence that the drafters intended to protect corporations. It showed, in fact, that the language of the equal-protection clause was never changed from "citizen" to "person." So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states' ratifying conventions. And, prior to Conkling's appearance on behalf of Southern Pacific, no member of the drafting committee had ever suggested that corporations were covered.
From lies to misrepresentations - how the Supreme Court not deciding on the corporate personhood argument turned into "The Supreme Court rules corporations are people with civil rights. Southern Pacific settled that case, but then brought another case that raise the very same question, but without introducing Conklin's story about the 14th Ammendment. Hint - Justice Field was a confident of Leland Stanford and advised Southern Pacific on which lawyers to use in this second case.
When the Court issued its decision on this second case, the justices expressly declined to decide if corporations were people. The dispute could be, and was, resolved on other grounds, prompting an angry rebuke from one justice, Stephen J. Field, who castigated his colleagues for failing to address "the important constitutional questions involved." "At the present day, nearly all great enterprises are conducted by corporations," he wrote, and they deserved to know if they had equal rights too.
Curses! Foiled again! So try, try, try again.
So, with Field on the Court, still more twists were yet to come. The Supreme Court's opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court's opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J.C. Bancroft Davis, whose wildly inaccurate summary of the Southern Pacific case said that the Court had ruled that "corporations are persons within ... the Fourteenth Amendment." Whether his summary was an error or something more nefarious--Davis had once been the president of the Newburgh and New York Railway Company--will likely never be known.
Field nonetheless saw Davis's erroneous summary as an opportunity. A few years later, in an opinion in an unrelated case, Field wrote that "corporations are persons within the meaning" of the Fourteenth Amendment. "It was so held in Santa Clara County v. Southern Pacific Railroad," explained Field, who knew very well that the Court had done no such thing.
The baleful legal concept of corporate personhood is today blocking progress on democratizing political campaigns. Congress passed and Bush 43 signed the Bipartisan Campaign Reform Act of 2004, which placed limits on corporate contributions. Citizens United v. Federal Election commission constituted an appeal of a lower court decision that had upheld a ban on corporate speech per §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA). SCOTUS overturned the act on the basis that it violated the First Amendment rights of the corporation.
While not mentioned in the decision, the very presumption that a corporation had First Amendment rights under the US Constitution goes directly back to Justice Simon Field who wrote that "corporations are persons within the meaning" of the Fourteenth Amendment. "It was so held in Santa Clara County v. Southern Pacific Railroad,".
Without that presumption of corporate citizenship Citizens United would have had to demonstrate that its client even had standing to bring this challenge. But a corporate officer or major shareholder, acting in their capacity of a US Citizen, absent violation of any applicable campaign contributions on individuals, could have legally paid for the same communication, at least by my understanding of that law. That would have at least made the source of the funding public via FEC filings, even if after a significant delay.