Fun With the Constitution – Corporations Aren’t Persons and Never Were, Except in the F*cking Supreme Court and It’s All a Lie

UCLA law professor and law historian Adam Winkler has a new book out –  We The Corporations: How American Business Won Their Civil Rights.  Okay, I don’t see a lot of people rushing to Amazon for that (besides me).  So at the very least check out this article in the Atlantic that lays out the frustrating history story of how

‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie, How a farcical series of events in the 1880s produced an enduring and controversial legal precedent

… because this is a really important part of jurisprudence that has been a thorn in the side of all efforts to hold business interests accountable and create common sense limits on their powers. The farcical happenings in the 1880s that Winkler describes, laid the cornerstone for horrific decisions like Citizens United.  Apparently this farce is not widely known in legal circles, but should be.

Somewhat unintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. 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.

Unscrupulous attorneys and justices used an exceptionally (fictitiously) broad interpretation of the 14th amendment to protect the rights of corporations, claiming that’s what the drafters of the amendment meant.  They meant no such thing.  Legend has it that a decision in Santa Clara County v. Southern Pacific Railroad is the precedent for corporate personhood, but the real story is that that interpretation was completely manufactured out of whole cloth, inserted erroneously into a frigging summary of the opinion by a court reporter (J.C. Bancroft Davis) who had previously been the president of a railroad – the 19th century equivalent of Pharma Bros.  And yet that opinion has been held as if a legitimate precedent for over 100 years.

[Justice Stephen J.] 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.

On this 163rd anniversary of the Dred Scott decision reminds us that what the Court does matters.  Also reminded that Chief Justice Roger Taney is widely held in infamy because of the Dred Scott decision; however, he was also a pro-worker, pro-consumer reformer and voted against corporate personhood.  People is complicated.

Please read the article if not the book.  I owe you one if you do.


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