The Story Of Corporate Personhood

The arrival of corporate (juridical) personhood was not signaled in the actual court opinion, but the decision of the U.S. Supreme Court in Santa Clara County v Southern Pacific Railroad Company in 1886 made manifest the Court's unanimous assumption that corporations were protected under the 14th Amendment, in particular the clause that gave full rights to human slaves.

The county sought to be reimbursed for years of unpaid taxes, and was upheld in its quest by both local and state supreme courts. The Railroad appealed these losses to the U.S. Supreme Court, using a law that had been passed to enable freed slaves to get around the injustices of Southern courts. But even before the Court ruled, it agreed that it would not be looking at whether the Equal Protection clause applied to the Railroad, simply because it was understood amongst all the justices that the 14th Amendment did apply to corporations. Thus, although the decision did not specifically lay out the precedence for corporate personhood, the concept was inherent in the reasoning underlying it, and was cited by later Justices when referencing the concept. Here is Hugo Black in 1938:

"Four years later, in 1886, this Court in the case of Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 , 6 S.Ct. 1132, decided for the first time that the word 'person' in the amendment did in some instances include corporations. A secret purpose on the part of the members of the committee, even if such be the fact, however, would not be sufficient to justify any such construction. The history of the amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. The Fourteenth Amendment followed the freedom of a race from slavery. Jusice Swayne said in the Slaughter Houses Cases, supra, that: 'By 'any person' was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color.' Corporations have neither race nor color. He knew the amendment was intended to protect the life, liberty, and property of human beings."

Now Glenn Greenwald is fielding comments that confuse what is Constitutional with what is ideologically acceptable, and in the course of it, has pointed out that the "liberal" dissenting justices do not quarrel with the concept of corporate personhood, and their dissent is not based on any rejection of it. He warns his commenters:

"Those same name-calling accusations were made frequently by commenters last night about those who think the First Amendment actually means what it says and can't be violated in the name of good results ("your absolutism and legalistic purity ignores the real-world problem of corporate influence"). The "rule of law," however, means that if the Constitution or other laws bar X, then X is not allowed regardless of how many good outcomes can be achieved by X. That was true for the "crisis" of Terrorism, and it's just as true for the crisis of corporate influence over our political process. Whatever solutions are to be found for either problem, they cannot be ones that the Constitution explicitly prohibits. That's what "the rule of law" means."

The problem with this line of thinking is that it assumes that the Constitution protects corporations based on their personhood. Greenwald himself seems to indicate this concept could be debatable ("But what isn't reasonable is to pretend that the 4 dissenting judges endorsed the idea that corporations have no First Amendment rights or that money restrictions don't burden free speech rights. All 9 justices rejected those views. Again, that doesn't mean those views are wrong...") but his remarks above also seem to buy into the view that it isn't.

Brown v Board of Education proved that prior interpretations--precedents!--once ruled Constitutional could be reversed, and it wasn't the only decision to do so. This Court is the same body, after all, that looked blandly upon slavery in its heyday and pronounced it constitutional. If we know anything about this third branch of our government, it's that it is as malleable to changing mores as the other two, and nothing that comes out of its machinery is infallible. Let's hope this ugly perversion of what was clearly meant to be a human right is someday made right.