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Saturday, January 23, 2010

The SCOTUS: Precedent sez: Corporations are Persons. Yeah – about that…

The SCOTUS ruled a few days ago that, because the Court said in “Santa Clara County v. Southern Pacific Railroad Company” in1886 that Corporations are Persons, they get to give any amount of money they want to any political campaign in any fashion they wish, just like any OTHER persons (e.g., you and me). This is known as the use of precedent (past decisions) to decide present cases.

Well, since an earlier SCOTUS ruled that Corporations are Persons, the campaign contributions ruling makes perfect sense, except… NO PREVIOUS SCOTUS EVER RULED ANY SUCH THING. More recent iterations of the SCOTUS just ACT as if their predecessors did, because they BELIEVE they did (or should have... I'll explain later).


Yep. The SCOTUS is using a precedent that doesn’t exist, or didn't… until it was used for the first time! And it’s all because a court reporter with ties to the railroad magnates wanted to give his friends a leg up, and snuck something that was never there into the record (headnotes) of a ruling.

According to an article written in 2003 for a website called “The Straight Dope,” here’s what happened (and there’s a really neat irony at the end). It begins with a letter to The Straight Dope’s writer, Cecil Adams:

September 19, 2003

Dear Cecil:

A recent article on the Straight Dope Web site says that in a famous 1886 case the U.S. Supreme Court ruled that corporations are "persons" having the same rights as human beings based on the 14th Amendment, which was intended to protect the rights of former slaves. Not to nitpick, but the Supreme Court made no such decision. If you look at the case in question, Santa Clara County v. Southern Pacific Railroad Company, you see that the court itself never rules on personhood. A court reporter by the name of J.C. Bancroft Davis (a former railroad president) snuck that "ruling" into the books.

— bex, via the Straight Dope Message Board

Cecil responded withan article I highly recommend. It shows you exactly how America was hijacked by the corporations, in far more ways that paying off politicians. A couple of pertinent passages are copied below:

You're thinking: By what tortured reasoning did the Supreme Court decide that corporations were protected by the 14th Amendment, which everyone knows was enacted to protect the rights of real people? Answer: Apparently it didn't decide. As revealed by our friend bex--and detailed by Thom Hartmann in Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights(2002)--the whole thing began as a courtroom comment by a judge, which was elevated to the status of legal precedent by an overreaching court reporter.”

Hm-m-m-m… now HOWINELL did THAT happen? Well, let us read a little further:

In a letter, Davis {the court reporter} asked {Justice} Waite whether he could include the latter's courtroom comment {that suggested corporations WERE persons}--which would ordinarily never see print--in the headnotes. Waite gave an ambivalent response that Davis took as a yes. Eureka, instant landmark ruling.

“HOW…?!? “

Well, Mr. Davis published the “headnotes” that everyone involved with the court normally uses to decide what the court said. Oops!

Read on for “the REST of the story:”

Does this flaky procedure mean all later cases relying on Santa Claraare null and void? Nope--in the world of the law, a precedent is a precedent, even if it's a stupid one.

And THEN Cecil says (in 2003, mind):

But it'd be nice to have a clear-cut ruling, say, that limiting campaign contributions by big businesses doesn't mean you're restricting their First Amendment rights. “ (Emphasis mine)

Cecil Adams

How’s THAT for irony?

A couple of personal notes:

1. Basically, either this terrible decision was inevitable, given the precedent they were using, or the SCOTUS would nullify the personhood of every corporation in America, and about half the things they do would become void.

2. The SCOTUS has been avoiding making this decision for generations. Why this one didn't try to find narrower grounds is beyond me. Unless the “conservative” justices decided this would be a good time to tell the world that the non-existent precedent, the decision that wasn’t, should have been, and make it so now.

3. Why no one on the "good guys" side didn't try to argue the reality of Santa Clara is even FURTHER beyond me. Wel-l-l-l... no it's not. Lawyers today probably don't even KNOW about that little piece of legal skullduggery. And if they did, they may have feared just this affirmation.

Wonder if it’s possible to ask the Supremes for a reconsideration…


  1. Dunno. Wouldn't reconsideration break with some kind of precedent?

  2. No, "Separate but Equal"? Dred Scott?