13

Years ago I remember hearing or reading that a reporter or stenographer for a Supreme Court case editorialized something in to the court record that wasn't intended by the presiding Justices, and that created the precedent upon which the concept of corporate personhood is based. Researching, I found this article that seems to comport with what I remember, but I don't have access to its referenced source.

In the case of Santa Clara County v. Southern Pacific Railroad, the Supreme Court decided that only the state that charters a corporation can tax it. This decision upheld the long-standing custom in America of state governance of corporations. It's the state that grants a corporation its charter -- its license to do business -- and it's up to the state to tax and regulate the corporation.

But a note written by the court reporter at the heading of the decision went further than that. Although another, private note from the Chief Justice said that the court had purposely avoided the issue of Constitutional corporate protection, the reporter chose to make his own addition to the records. He noted that the court had decided that corporations are persons under the 14th Amendment, and as such are subject to the same protections under the law as anyone else [source: Hartmann].

What's strange, Hartmann points out, is that the justices hadn't ruled that way at all. Even fishier, the court reporter was a former railroad president [source: Hartmann]. Ultimately, since it was a headnote (a commentary prefix to the court record) written by the reporter, it didn't constitute law. But it did set precedent. Two years later, this idea was upheld in another case: Pembina Consolidated Mining and Milling Co. v. Pennsylvania [source: Aljalian].

The bibliography entry is

Hartmann, Thom. "Unequal protection: The rise of corporate dominance and the theft of human rights." St. Martin's Press. 2002.

I used to listen to Thom Hartmann's radio show when it was broadcast in my area, so it's possible that that is where I learned of it.

Does corporate personhood have a more legitimate basis, or is there any truth to this story? Most surprisingly, how could a railroad president end up in the position of court reporter?

  • 1
    IANAL, much less a legal historian, but doesn't the concept of corporate personhood descend from British law? – jamesqf Feb 28 '17 at 23:32
  • Let's be clear here. The claim is not that this case is the origin of the idea that corporations should sometimes be treated as persons (can own property, can enter into contracts, can sue or be sued, etc.). The claim is that this case is the origin of the idea that the equal protection clause of the 14th Amendment applies to corporations. – GEdgar Mar 2 '17 at 0:24
  • @GEdgar The claim is that the idea originates from editorializing by a court reporter and not any ruling made by presiding judges or Justices. – J Doe Mar 3 '17 at 17:56
  • Where do you think the term "corporation" comes from? – Daniel R Hicks Jul 14 '18 at 13:09
9

There is no good reason to think that corporate personhood was invented by a court reporter.

As ventsyv says, the facts described in the quote seem to be mainly correct (the headnote existed and was written by the reporter, according to the Wikipedia article on Santa Clara County v. Southern Pacific Railroad Co.) , but the interpretation of them may not be. In particular, the statement "But it did set precedent" is unclear, and could be considered wrong depending on what you mean by "set precedent."

The Wikipedia article indicates that some people have written as if this case set precedent for corporate personhood, citing a 1938 dissent of Hugo Black's in Connecticut General Life Insurance Company v. Johnson that says

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.

(Black was arguing against this interpretation.) However, the same Wikipedia article says that the headnote described what the reporter perceived to be the opinion of the justices; it wasn't a part of the ruling, or described that way, and the ruling did not cover the matter, which is completely consistent with the statement that "the justices hadn't ruled that way at all."

In any case, Pembina Consolidated Mining and Milling Co. v. Pennsylvania two years later was decided by the same Supreme Court, so the members of the court would certainly be aware of what they did and didn't intend to say in their ruling for Santa Clara County v. Southern Pacific Railroad. I very much doubt that they "based" their ruling in this case on a court reporter's description of one of their previous rulings (especially not if the description was inaccurate, as the quotation in your question seems to imply). So the answer to the title of your question ("Was corporate personhood invented by a court reporter?") is almost certainly No.

Note that later on, in 1906, the U.S. Supreme Court ruled about the issue of whether headnotes could legitimately be considered to set precedent, and concluded that they can't in in United States v. Detroit Timber & Lumber Co.

6

Wikipedia has a well sourced article on the subject that seem to confirm the basic facts that you described.

Another Wikipedia article on corporate personhood gives a good summary of the incident:

In the 1886 case Santa Clara v. Southern Pacific – 118 U.S. 394 (1886), the Chief Justice Waite of the Supreme Court orally directed the lawyers that the Fourteenth Amendment equal protection clause guarantees constitutional protections to corporations in addition to natural persons, and the oral argument should focus on other issues in the case.[9] In the Santa Clara case the court reporter, Bancroft Davis,[10] noted in the headnote to the opinion that the Chief Justice Morrison Waite began oral argument by stating, "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."[11] While the headnote is not part of the Court's opinion and thus not precedent, two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania – 125 U.S. 181 (1888), the Court clearly affirmed the doctrine, holding, "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."[12] This doctrine has been reaffirmed by the Court many times since.[citation needed]

So the reported did not create the precedent, the court did in Pembina Consolidated Silver Mining Co. v. Pennsylvania

  • 4
    I think there's an important transition in the quote that you should call attention to: the later case did not cite the headnote as president. Rather, the same court just made their unofficially recorded position official. Or at least, that's how I read it. – Bobson Feb 28 '17 at 23:45
  • @Bobson - good point. I highlighted that section.. – ventsyv Mar 1 '17 at 3:42
  • 1
    Also seems that the Court did not recognize anything special about corporations. They are merely "associations of individuals", and so the rights attributed to them are simply the rights of each & every one of those individuals. – jamesqf Mar 1 '17 at 6:27
  • 1
    @jamesqf Exactly, and that logic carries through to other rights as well. You can't silence the New York Times because to do so is to silence its reporters. You can't take the property of Exxon because to do so is to take the property of its shareholders. And so on. Groups of people don't lose their rights just because they choose to use a corporate form. – David Schwartz Mar 5 '17 at 7:30
  • 1
    @JDoe That wouldn't be something a court would actually rule. It's a principle that courts have applied in varying contexts over time, sometimes faithfully, sometimes not so much. It's the logic underpinning most of the corporate personhood cases. If you were to ask a court if, for example, a corporation had the right to run for office, what courts would look at (among other things) is whether prohibiting such a thing infringes on the established rights of the owners of that corporation. (Which, I think, it doesn't.) – David Schwartz Mar 6 '17 at 19:24
2

Others have explained how the impact of his headnote has been exaggerated. I have nothing to add to that, but would like to answer

Most surprisingly, how could a railroad president end up in the position of court reporter?

J. C. Bancroft Davis was a politically connected (son of Massachusetts governor John Davis and brother of Congressman Horace Davis) lawyer. He worked in the American embassy in London in 1849. When he returned, he practiced law until 1862 when he retired for health reasons.

Davis was president of the Newburgh and New York Railway Company in 1868. I haven't had much luck in determining how long he was there. Note that prior to this, he had been in the diplomatic service and the study of law. Railroads were often government subsidized at that time. It is a reasonable surmise that he was made president to take advantage of his political connections. His Wikipedia page does not mention other experience with railroads.

In 1869, Davis was briefly a member of the New York State Assembly. After a few months, he left to become the Assistant U.S. Secretary of State. He was assigned to the Treaty of Washington commission and later resumed his previous position. He became Ambassador to Germany and later resumed his previous position.

In 1877, he was appointed a judge on the Court of Common Claims. He left that for another foreign service job but returned. He left to become Reporter of Decisions of the Supreme Court of the United States in 1883. He replaced William Tod Otto who was also a judge with diplomatic experience.

To review, Bancroft Davis had a relatively normal background for becoming a Supreme Court reporter at that time. He was a politically connected lawyer with judicial experience. The oddity was that he had been president of a railroad. I don't believe that there is any recorded reason why he was president, but the interaction of railroads with the government suggests (but does not establish) that it may have been his political connections that were relevant.

To answer the question, he ended up as a court reporter because his background prepared him for that. We can only guess as to why he had been a railroad president. His other business experience was as a practicing lawyer. The bulk of his experience was as a government official, and he was almost twenty years away from his railroad experience when he wrote the controversial headnote.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .