Corporate Personhood: Where Did It Come From?

NTodd of Dohiyi Mir provides us an answer, one of the few I’ve seen online that offers enough detail about the persons involved in the decision to awaken you, the reader, to the genuine perfidy in the origin of the concept of corporate personhood. I’ve known about this for a few years, having been informed by… well, I don’t remember; it may have been Thom Hartmann or Glenn Greenwald in one of their excellent books, but somehow, when the subject of corporations as persons is brought up today, one basic fact is never discussed (other than the self-evident fact that they aren’t… people, I mean): Prior to Citizens United, no court, and certainly no Supreme Court, ever ruled that corporations are de jure persons. That’s right. You thought otherwise? You’ve bought into the original, deliberate fraud, perpetrated by a late-19th-century Supreme Court clerk, J. C. Bancroft Davis, while he was recording the results of the 1886 decision Santa Clara County v. Southern Pacific Railroad. Bancroft Davis, who had prior ties with the railroad at a high level (hmm… railroad ties? if only someone had driven a spike in him…) before his days as a court recorder, inserted the following paragraph as a preface to the text of the decision:

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.

No, it’s not part of the decision itself. No, it’s not legally binding upon anyone. It’s a headnote by a clerk. But it has transformed corporate leaders’ thinking about the entities they head, and thanks to Roberts et al in Citizens United, it has become, for all practical purposes, the law of the land.

NTodd can tell you about the proposed constitutional amendment probably necessary to remedy this gross misconstruction. Can we do it before it’s too late? I have my doubts. But we have to try. I have advocated only one constitutional amendment in my lifetime, the ill-starred Equal Rights Amendment, but it’s time I supported another, this one by Sen. Bernie Sanders (I-VT). Follow NTodd’s links and see what you think. This is worth your most serious attention.

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  • upyernoz  On Saturday December 31, 2011 at 8:32 pm

    technically, a corporation is an artificial legal person. that’s what i’ve always understood what the word “corporation” means–or at least “always” in the sense of “since i was in law school.” the bottom line is statutes, contracts and other legal documents regularly include a definition section that defines the term “person” to include corporations. (legal documents use the word “natural person” to talk about “persons” that are limited to human beings). this isn’t anything new. it goes back to the supreme court dartmouth v. woodward case from 1819. that case is generally understood to have established the legal personhood of corporations.

    the crazy thing that the citizens united case did was not that it considered corporations to be “persons”, it’s that it held that corporate persons have constitutional rights. that’s the part that is very different from what i learned in law school. for while corporations are “persons” in the sense that they have the ability to act like legal people in doing things like entering into contracts, to sue and be sued, etc., they couldn’t do things like vote or run for office. nor did i think they had first amendment rights before the court in citizens united ruled otherwise.

    in any case, the anti-citizens united forces have reduced the issue to saying that the case established that “corporations are people”. which is fine as a slogan. but technically, corporations were already legal persons. the citizens united issue is not corporate personhood, it’s about giving corporations the rights of natural people under the constitution. i really prefer the issue were framed that way.

    • Steve  On Sunday January 1, 2012 at 6:50 pm

      ‘noz, I am not a lawyer, and therefore am never in a position to disagree with anything you say in your capacity as a lawyer. But there seems to be a general consensus among writers on our side of the political spectrum …

      • that Bancroft Davis’s preface (headnote, whatever) has no authority to create law as a Supreme Court decision does,

      • that it is a blatant attempt by a clerk with a conflict of interest as “wide as a church door” to do exactly that (create law), and

      • that Chief Justice Roberts demanded the Citizens United case be re-argued on grounds that would permit him to rule on the corporate personhood issue when (if you believe Justice Stevens’s dissent) the case could have been resolved without reference to a constitutional issue.

      I don’t know if you’ve read Sen. Sanders’s proposed constitutional amendment (.pdf). The specification of “for-profit” in the opening paragraph troubles me, but IMHO we need to do something, and fast, or participation in the political process by nonwealthy natural persons is going to be reduced to absolute meaninglessness.

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