“Corporations are people, my friend”
Well, if you trace the history of something called corporate “personhood,” you can blame this inglorious recognition on an unelected clerk writing a summary of a court decision that never actually decided this issue.
How it got used by corporate lawyers during the age of the Robber Barons is another story. But, corporations were never intended to be given all the rights of “people.” Abraham Lincoln, who was a driving force for the passage of the 14th Amendment empowering all people with the protection of the federal government, would be turning in his grave on learning the due process equal protection clause was eventually used by some “slave-driving” Big Business corporation of the late 19th Century.
Republican Presidential Candidate Mitt Romney recently touted the infamous quote above, defending corporations and thereby supporting the US Supreme Court decision in Citizens United v. Federal Election Commission ruling that corporations are “people” with rights to spend unlimited (and undisclosed) amounts of money for political speech under the Constitution.
The Court said such action would not have a corrupting influence in politics. I don’t know what world the five justices were living in when they voted on its narrow 5 to 4 decision, but I don’t believe they foresaw the negativity states would be carpet-bombed by election ads over the next two years.
Now, let’s get back to corporations as “people.”
The first reference to a corporation as an “individual” occurred on Feb. 2, 1819. The state of New Hampshire tried to break a contract the King of England entered into with a college before the United States was formed some 50 years earlier, granting a charter for the school. Daniel Webster, an alumnus of Dartmouth College, argued an incorporated college should be treated as an “individual” under contract law, and Supreme Court Justice John Marshall agreed.
Fast forward some 70 years and the court heard yet another case involving a state whose legislators tried to impose a tax on railroads. Lawyers for the railroad tycoons fought the state of California all the way to the Supreme Court which sided with attorneys for the industrial giants. They said that a state could not alter a law created by the federal government and did not have the right to a newly created state tax.
Here is where “corporations are people” got hatched. A clerk, whose duty included writing a summary for the court’s actual opinion, condensed the actions of the court’s decision. He tried to clarify what the court had not done, and that was, not to apply the 14th Amendment “due process clause” of “persons” to that of corporations. However, he wrote the following in what is called a “headnote”:
“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 the opinion that it does.”
Headnotes are not the work of the Court, but are simply the words of the reporter, giving his understanding of the decision, prepared for the convenience of other lawyers.
The clerk, by the way, was the former president of the Newburgh and New York Railway Company.
Lawyers picked up on this non-decision and used it to their wealthy clients’ advantage, thereby building up and sustaining a fiction over the years that neither the framers of the Constitution nor its most revered Civil War champion ever imagined.
“We the People” was never intended to be “We the Corporations.”