How a Clerical Error Made Corporations ‘People’

In 1886 corporate supremacy was born, breathing life into artificial, antidemocratic entities, to the detriment of we, the real people.

There’s a historic date, which our country ought to mark every year, that has had as great an impact on the world as the July 4 birth of American democracy itself. The date is May 10, 1886 — the day corporate supremacy was born. It came about through a court case that breathed life into these artificial, antidemocratic entities — a move that effectively gave corporations greater power than We the People.

The reason that today’s Powers That Be (which are — big surprise! — corporate powers) don’t want us paying the slightest bit of attention to this momentous date is that the birth of corporate supremacy actually was illegitimate, carrying no force of law. An old proverb says: “A lie repeated 1,000 times becomes the truth.” This particular lie asserts that every corporate business structure is, in the eye of the U.S. Constitution, equal to real human beings, possessing all the rights of people.

As bizarre as it is, this assertion has been repeated so often by CEOs, politicians, pundits, professors and judges that it is now assumed to be unassailable truth. Again and again, we hear the establishment speak of the “right” of this or that corporation to do as it pleases, as if the founders themselves had contemplated this as part of their grand democratic design.

Horse doodies. Not only are corporations unmentioned in the Constitution, but the founders would upchuck at the very idea that these things would now be treated by any serious person as part of the natural order.

After the passage of the 14th Amendment, which provided equal protection of the law to former slaves and all other people, clever corporate lawyers began to make claims that the corporation was not a thing, but a person. This is stupider than B.S. on a stick, but there it was, a product of the sophistry and greed of the robber barons. Back then, this argument was going nowhere. No president, Congress or court (federal or state) was willing to embrace the personhood claim, and none has ever acted to elevate the corporation to such an exalted status.

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).

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 14th 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 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.”

Corporate attorneys seized on the headnote, quoting it as the law of the land, and it was not long before politicians and judges themselves joined in the farce, either because they were eager to support the corporate cause or were simply too lazy to read the actual case.

Jim Hightower