How “Corporate Personhood” Was Smuggled Into the Constitution

 

By 1886 the railroads and their flunkeys had been contemplating for many years the prospect of getting “corporate personhood” enshrined as a perverted interpretation* of the 14th Amendment. Yet even though they apparently had enough votes on the SCOTUS to enshrine this false doctrine, they still felt the need to engage in subterfuge and sleight of hand. Evidently, it was considered too politically risky to openly litigate and decide the issue. The result was a cowardly collaboration between the railroad lawyers, Chief Justice Morrison Waite, and subsequently the entire court, to smuggle in this anti-constitutional doctrine by the back door. I’ll delve into “corporate personhood” as an ideology in a subsequent post. Here I’m just going to describe the steps by which it was snuck into Constitutional jurisprudence. (Much of this narrative is compiled from Ted Nace’s Gangs of America. The site doesn’t have HTML links for the later chapters, but it’s from chapters 9 and 10. Most of the analysis is my own, and goes further than that of Nace.)

 

[* Self-alleged “originalist” Antonin Scalia was recently expatiating on the 14th Amendment, telling an interviewer that those who voted to ratify it never thought it applied to women. He disclaimed any intent to overturn any existing superprecedent where it comes to gender rights. But if he really believes and cares about this, then where does that leave his aggressive pro-corporatism? The corporate personhood interpretation has been proven to be not just false Constitutionalism but an actual fraud. So even if Scalia still wanted to view Santa Clara as a superprecedent, he still would have no basis to extend corporate “rights” any further. That would be according to his own alleged guiding principle. But then, it’s long been clear that Scalia’s a fraud where it comes to his proclaimed principles, even more than Thomas.]

 

1. In 1866 the Joint Committee of Fifteen on Reconstruction drafted the 14th Amendment, guaranteeing “equal protection of the laws” to all “persons” in the United States and forbidding state infringement of this equal protection**. At no time, during the extensive public discussion and debate which followed during the ratification process, did anyone from the Committee claim that the amendment was intended to apply to corporations. On its face and based on the deliberations, from any strict or originalist jurisprudential point of view, the amendment does not apply to corporations.

 

Senator Roscoe Conkling was a member of the drafting committee.

 

[** Once “equal protection” rights for corporations under the 14th had been smuggled into the Constitution by the method described in this post, “due process” rights would soon follow. I’ll discuss that in a subsequent post. This post is discussing only the equal protection clause.]

 

2. Having left the Senate, Conkling went to work for the railroads. He now argued that the 14th amendment had been intended to apply to corporations. He claimed that the Committee actually had this secret intent all along but kept quiet about it. According to him, the plan was to get everyone to think it applied only to human beings, and in particular to newly freed slaves. Now, once it had been ratified on that basis, here was Conkling saying in effect, “Ha ha, suckers! We secretly intended for the amendment to apply to corporations all along, and now you’re all stuck with it!”

 

Obviously this is bogus. Even if the Committee did have such a secret intent, that would have zero legitimacy. The only authority of anything in the Constitution is, according to one’s interpretive philosophy, what the text says, what’s in its spirit, and/or what the framers publicly claimed to intend by it at the time. A secret plot to smuggle in a coded meaning would have no validity from any perspective. As Hugo Black put it many years later, “..a secret purpose on the part of the members of the committee, even if such be the fact…would not be sufficient to justify any such construction.”

 

3. To bolster his claims, Conkling produced a journal he claimed to have been keeping in 1866 during the drafting process. In it he details alleged wrangling over the wording of the amendment, the placement of the terms “person” and “citizen”, and that the term “person” was strategically deployed to ensure it would encompass corporations as well.

 

20th century scholarship has proven that Conkling’s diary was a forgery, and almost certainly his entire story about the Committee’s alleged secret plot was a lie.

 

But in either case, whether the plot did or didn’t exist, and even if the journal actually had been authentic, would make no difference. If any such intent was concealed from the public in 1866, it would objectively fail to exist from the point of view of the Constitution. Only public expressions have any validity or exist at all. No one in public life has any authority or right to have secret intentions.

 

4. Conkling testified about all this in the 1882 case San Mateo County vs. Southern Pacific Railroad. When he came back in 1886 to argue Santa Clara County vs. Southern Pacific, the SCOTUS simply let him assert it.

 

Why would anyone have believed the railroads’ own lawyer when he first claimed secret plots against the Constitution and magically produced this “journal” no one had ever seen before, all of it alleging to support the positions he was now arguing? Only if they wanted to believe it, because they too were in the bag for the railroads.

 

5. At the outset of the case, prior to formal argumentation, Chief Justice Morrison Waite proclaimed that the court didn’t want to hear argument about whether or not corporations were persons according to the 14th amendment’s equal protection clause, because the court already agreed that they were.

 

In other words, Conkling claimed that he and the committee who had drafted the 14th amendment had actually been engaged in a plot against the Constitution and democracy. Waite, instead of ordering him tarred and feathered and rejecting his argument with all the scorn and contempt it deserves, chose to roll over and accept it. So, evidently, did the rest of the Court.

 

Again, whether or not Waite actually believed Conkling is irrelevant. The fact is that the SCOTUS claimed to believe the Committee had lied to America, and yet let this retroactive interpretation stand. Thus Waite and the Court collaborated in a conspiracy against the Constitution and the people.

 

6. Waite made his informal statement in May 1886 at the beginning of arguments. The argumentation and decision then proceeded with no further mention of “corporate personhood”, and it played no role in the decision.

 

But a few months after the decision, when court reporter JC Bancroft Davis was writing up the case, he sent Waite a note asking for clarification regarding this supposed throwaway remark.

 

I have a memorandum in the California Cases
Santa Clara County
v.
Southern Pacific &c &c
as follows:
In opening the Court stated that it did not wish to
hear argument on the question whether the Fourteenth
Amendment applies to such corporations as are parties in
these suits. All the Judges were of opinion that it does.
Please let me know whether I correctly caught your
words and oblige.

 

Waite replied:

 

I think your mem. in the California Railroad Tax cases expresses
with sufficient accuracy what was said before the argument
began. I leave it with you to determine whether
anything need be said about it in the report inasmuch as we
avoided meeting the constitutional question in the decision.

 

Davis proceeded to insert Waite’s characterization in the Statement of Facts prefacing the decision.

 

One of the points made and discussed at length in the brief of counsel for defendants in error was that “Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” Before argument Mr. Chief Justice Waite said: The court does not wish to hear argument on
the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

 

He then wrote the very first sentence of the case Headnotes (AKA Syllabus) as an incendiary declaration that “Corporations are persons” under the Constitution.

 

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 to any person within its jurisdiction the equal protection of the laws.

 

Why did Davis (a railroad board member) send Waite a request for clarification about a mere remark whose issues played no role in the decision? And receiving this seemingly odd request, why did Waite leave it to Davis’ discretion on how much to play it up in the written case record?

 

The answer is obvious. Waite may or may not have premeditated the remark’s being used to smuggle corporate personhood in to a written decision which never included it in the first place. (The fact that Waite ever agreed to countenance Conkling’s malevolent assertions proves Waite’s bad faith from the start.) But Davis’ note made it implicitly clear that he wanted to use the remark that way, and Waite’s reply implicitly gave him the green light to do so.

 

So we basically have a choice of two possible plots against democracy: Either the Committee conspired to subvert the Constitution and the SCOTUS later collaborated; or Conkling fabricated the story of the original conspiracy, but the SCOTUS still abetted him.

 

Either way, what’s evident is that the SCOTUS claimed to believe in this conspiracy and yet chose to go along with it.

 

7. And so it was done. Although the Headnotes and the Statement of Facts are not technically part of the decision and therefore do not constitute precedent, they can have great “moral” force, especially where one wants to pretend that they do add up to some kind of precedent. Sure enough, late that same year Philadelphia Fire Association vs. New York became the first case where Santa Clara was cited as a corporate personhood precedent. Although this citation was in a dissent, no one on the court disputed this allegation of a precedent. Soon it would be the basis of decisions. In 1889’s Minneapolis and St. Louis Railway Company vs. Beckwith, the decision flatly stated that corporations are persons where it came to both equal protection and due process. The illegitimate and malign doctrine had been smuggled in and was now ensconced.

 

Although it seems likely that corporate personhood was going to become SCOTUS doctrine one way or another, since most on the court were hankering for it and none strongly opposed it, the way it actually was done is appropriate to the wickedness of the whole corporate coup against democracy. That it was smuggled in instead of being openly argued and decided is the Original Sin of pro-corporate SCOTUS jurisprudence. This original crime and betrayal casts its shadow over all subsequent SCOTUS action. This illegitimates all of it.

 

It’s exemplary of the pro-corporate, anti-democratic role the SCOTUS has played through much of postbellum history. The main role of the court has been to bestow non-existent, unconstitutional “rights” upon corporations. The corporations prefer to use direct political force and might-makes-right to get what they want. But arguing their “rights” in court is a supplement and backstop where brute force fails.

 

So it seems appropriate that the way this fraudulent, subversive, back-door way of fighting was enshrined in the first place was not through formal argument in open court and an official decision, but through unacknowledged transmissions of lies, forged conspiracies, muttered remarks, furtive passing of notes, and a magically appearing “precedent”.