Corporations Today: Roscoe, Where Are You!?

So, why should we care about an 1886 Supreme Court decision today? Well, of course, we know now that there was no actual constitutional decision, but nevertheless, a decision was presumed from the headnotes, and barring any statute, the common law rule of stare decisis (let the decision stand) provided precedent for later decisions. [The photo is Justice Rufus Peckham from Lochner...]

This corporate personhood concept is a Gilded Age fiction, a term of art, if you will. This fiction was necessary for the continuation and triumph of capitalism as a logical development of the post Civil War/Reconstruction period. Extending rights of natural persons to artificial persons (corporations) encapsulates the opinion of Schneirov in the article that we read where he defines the Gilded Age as an era of social and economic instability.

This whole idea of the rights of corporations and those rights as protected under the Fourteenth Amendment is an abomination and bastardization of an amendment that had the obvious intention of protecting the rights of freed slaves. This is not my opinion, but the opinion of the Supreme Court in the Slaughterhouse Cases. True, this was a 5-4 opinion, but Justice Miller narrowly defined the Fourteenth Amendment to apply mainly to the protection of former slaves and could not be more broadly applied as Justice Field had intended (and would later succeed).

Eloquent jurists over the years have debased and twisted the Amendment for the causes of their times. It appears to me that the Fourteenth Amendment is a natural development of remedying the wrongs of slavery. The Thirteenth Amendment abrogated slavery, and the Fifteenth Amendment gave former slaves the right to vote. What other meaning could the Fourteenth Amendment have other than to secure the rights of constitutional protections to former slaves?

Okay, we learned in Lochner v. New York (1905) that a company's right to contract was protected under the Fourteenth Amendment, because a company (in this case, a bakery) was entitled to "due process" as guaranteed by the Amendment to "any person." It was determined from Santa Clara that a business enterprise is a person where the Fourteenth Amendment provides: "...nor shall any State deprive any person of life, liberty, or property, without due process of law." Lochner had the "right to free contract," and this right was implied by the "due process" clause. Well, I have to agree with Schneirov on this that this would be an example of social and economic instability. Interestingly, in his dissent opinion, Oliver Wendell Holmes said that the decision was "decided upon an economic theory which a large part of the country does not entertain." I wonder if Holmes is referring to a "regionalism" here, which is how some scholars define the Gilded Age - as opposed to Schierov's categorization of the Gilded Age as a phenomenon of capitalism. I do not know, but I think I prefer the latter. Attached is a photo of Justice Peckham, who delivered the 5-4 opinion of the Court.

In the decades after Santa Clara and Lochner, there were numerous cases where businesses succeeded in striking down laws that regulated the marketplace, and this includes anti-discrimination laws. All this was done under the "privileges and immunities" that were protected by "due process" under the Fourteenth Amendment. In later years, the Court invalidated many of FDR's new deal laws and regulations as violations of the Amendment. When FDR threatened the sanctum of the Supreme Court with "court packing," it was only then that the Court held back in its abrogation of "economic laws."

Modernly, there appears to be a shift in judicial philosophy regarding the 14th Amendment as it had developed from Santa Clara as a basis to apply protections to corporations and other nonpersons. I think the first legal formalization of the Santa Clara corporate personhood concept was in Lochner. Were those Gilded Age developments caused by the mechanics and oratory of Roscoe Conkling? I do not know.

Coming full circle from Santa Clara in a modern corporate tax case, Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77 (1938), Justice Hugo Black in his dissenting opinion said it best: "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection … No word in all this amendment gave any hint that its adoption would deprive the states of their long-recognized power to regulate corporations."

Today, the significance of Santa Clara, et al, is only historical. Modernly, the courts generally presume that laws are in compliance with the Fourteenth Amendment. Moreover, the Gilded Age sentiment of interpreting corporate hegenomy, Social Darwinism, and capitalism as protected rights under the Fourteenth Amendment are out of fashion. You certainly do not hear today of a corporation seeking protection under the "due process" clause; bankruptcy, maybe, but not "due process." Where is Roscoe Conkling today when corporations really need him?

The Santa Clara (1886) Case - A False Precedent

The Santa Clara decision, Santa Clara County v. Southern Pacific Railroad Company (1886)

We had the discussion in prior blogs that the Santa Clara case provided absolutely no legal basis for defining the corporation as a person. It was a biased court reporter for the Supreme Court, John Davis (former president of the Newburgh & New York Railroad) who inserted into the case introduction (headnotes) his own recollection of what Chief Justice Waite had said regarding the constitutional basis for protecting the rights of corporations as natural persons. Davis quotes Waite in the case headnotes:

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 opinion that it does.

And further, in the summary:

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.

There is a collection of Davis' personal papers in the National Archives that indicate Davis, after recording the proceedings, asked the Chief Justice if he had quoted him accurately: "...please let me know whether I correctly caught your comments and oblige [reply]."

Chief Justice Waite replied: "I think your mem. [memorandum] in the California Rail Road tax cases expresses with sufficient accuracy what was said before the arguments began [emphasis added]. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the Constitutional question in the decision" [emphasis added].

The Santa Clara case turned on the question of an allegedly unfair county tax imposed on the Southern Pacific Railroad that was not applied equally to all persons. Hence, the call for protection on the basis of equal protection under the Fourteenth Amendment, since corporations were, after all, "juristic persons." The case was settled and the constitutional issue of corporate personhood was never argued, considered, or given mention in the opinion of the case, YET the case has often been cited as the basis for the protection of the rights of corporations using the Fourteenth Amendment. Santa Clara has been referred to as a "landmark" case and a "turning point" for the extension of the equal protection clause to "abstract" persons, i.e., corporations. The lawyers for Southern Pacific used Conkling's argument for corporate personhood in their briefs, but the issue was not raised in argument and never considered by the court. Interestingly, the attorney for Santa Clara, Delphin Delmas, was quoted in Santa Clara as saying: "human rights for humans only." [This quotation is not found in the opinion, and I have not corroborated it by finding it in any extant brief].

Before I get into the question of why we should care about this case, I would like to briefly discuss just two (and there are more) issues that were pertinent in the Gilded Age debate over the Fourteenth Amendment. These issues were important, because the direction that the Amendment would take, as it pertains to human and corporate constitutional rights, hinges on strengths of the arguments. This is entirely a Supreme Court exercise, and merely reflects a changing balance of majority-minority opinion.

The "Race Theory" of the Fourteenth Amendment

Slaughterhouse Cases (1873): Fourteenth Amendment interpreted NARROWLY and in a procedural, rather than substantive, light where the Amendment was primarily created to protect freed slaves, NOT the white butchers of New Orleans seeking protection from State police powers (in this case, New Orleans created a corporation centralizing slaughtering operations to one area of the city, thereby restricting the businesses of independent butchers). Essentially, the Supreme Court held that the Fourteenth Amendment protected the rights of United States citizenship, not State citizenship, therefore police powers of the State are not restricted, therefore the State of Louisiana had not violated the citizenship rights of the New Orleans Butchers to "sustain their lives through labor," and the State had not violated the Fourteenth Amendment. The attorney representing the butchers, former Supreme Court Justice John Campbell (who resigned when the War broke out), attempted and failed to extend the protection of the Fourteenth Amendment beyond freed slaves to the "common law presumption" of the rights of the individual to pursue a lawful occupation.

For your viewing pleasure, please see the photo of Mr. Campbell (the gentleman in the suit; Davis is the court reporter to the left). Well, he looks like a slavocrat to me.

The "Corporate Personhood" Theory of the Fourteenth Amendment

Should the equal protection clause of the Fourteenth Amendment extend beyond the matter of protecting the rights of freed slaves, i.e., beyond race, to other non-race related matters, viz. the railroads, and the Southern Pacific Railroad in the matter before the 9th Circuit, Santa Clara County v. Southern Pacific Railroad (1882) [The case would reach the Supreme Court in 1885, and would be decided insignificantly in 1886]? Justice Stephen Field was on the Circuit at that time and wanted a mechanism to broaden the meaning of the Fourteenth Amendment to non-race related matters. Unfortunately, there was that precedent Slaughterhouse decision that kept the meaning narrow on the basis of keeping a centralized government reigned-in.

Justice Field wanted to expand the Slaughterhouse decision to include corporations. The question was how he would construe the Fourteenth Amendment to embrace the concept of protecting non-persons when the language of the Amendment is specific in the protection of "persons?"

Justice Field relied on the opinion of the eloquent attorney for San Mateo, John Pomeroy, who asserted that the Fourteenth Amendment protected the property rights not of "abstract" corporations, but the rights of the individual shareholders. Statutes that infringe upon the rights of corporations, infringe upon the rights of "natural persons." I think Pomeroy had an ingenious logic when he said: "Corporations cannot be separated from the natural persons who compose them." You know, this really sounds like Conkling; however, it was rumored that Conkling plagiarized his material, and Pomeroy may have been the principal. Indeed, Pomeroy goes on in his brief, "the truth cannot be evaded that for the purpose of protecting rights, the property of all businesses and trading corporations is the property of the individual corporators" [Emphasis added].

I could see Conkling taking Pomeroy's arguments and fabricating them into his own argument and arguing the same before the Supreme Court. After all, Conkling was the great orator, and he had the clout because he drafted the Amendment, so he must know its cryptic meaning. Conkling's argument won. This spectacle was aptly summarized in prior blogs.

Evidently, Fields found the impetus that he was looking for to expand the meaning of the Fourteenth Amendment:

"[W]e think that it is well established … that whenever a provision of the constitution, or of a law, guarantees to persons the enjoyment of property, or affords to them means for its protection, or prohibits legislation injuriously affecting it, the benefits of the provision extend to corporations, and that the courts will always look beyond the name of the artificial being to the individuals whom it represents."