May 30, 2012

THE HECK WITH ORIGINALISM...MY SIDE WINS:

Corporate Personhood and 14th Amendment Rights (Thomas Storck, 5/30/12, Crisis)

[The Fourteenth Amendment] was ratified in the summer of 1868, the second of three amendments enacted after the Civil War to free the slaves and secure their rights as citizens.  The reference to "persons born or naturalized" would be, one hopes, clear enough so that no one could ever have imagined that the text refers to anything except natural persons.  After all, corporate bodies are neither born nor do they achieve citizenship by naturalization. But this was not what occurred.

In the period during and after the Civil War corporations were beginning their successful attempts to influence state legislatures to grant them privileges unknown to ante bellum corporations.  These included the right of a corporation to own stock in other corporations, thus allowing the creation of holding companies, and the passage of general incorporation laws.  In the ante bellum era corporations were generally chartered by state legislatures for specific purposes, for example, to operate a steamship or a bridge, for a certain number of years, and usually with other restrictions as well.  Of course, in some cases, this grant of state authority was tantamount to a temporary grant of monopoly rights.  General incorporation laws, which gradually came into existence in the second half of the 19th century, allowed corporations much more flexibility than they previously had.  In such a climate of opinion, it was not surprising that corporations, especially the then powerful railroads, would use their political influence to obtain the ultimate prize, corporate personhood rights under the Fourteenth Amendment.

The odd thing is that the U.S. Supreme Court never really gave such a grant of personhood in any of its decisions.  Rather, the statement that the Court considered corporations as persons under the Fourteenth Amendment was inserted into the headnote, or prefatory material, of an 1886 case by the man responsible for compiling and printing the Court's decisions, Bancroft Davis, the court reporter.  In the case of Santa Clara County vs. Southern Pacific Railroad (118 U.S. 394), Davis, with the concurrence of the Chief Justice, inserted the following into the 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 of opinion that it does.

Although nearly twenty years later the Supreme Court formally stated that headnotes do not have any legal force, by then it was too late.  The "ruling" in Santa Clara had already been cited more than once and had acquired the status of a precedent.  So in this extraordinary and clearly extralegal manner corporations in the United States acquired the personhood and, one by one, the rights granted by the Fourteenth Amendment solely to "persons born or naturalized in the United States."

What is even more outrageous is that those justices and judges, such as Antonin Scalia, who make much of their commitment to "originalism," i.e., to interpreting the Constitution as it was understood by those who wrote it, seem to have no difficulty in acquiescing in the hijacking of the Fourteenth Amendment by corporations and their legal lackeys.  This would seem to call into question the honesty of their "originalism."

Question?  There's no question.  They're just being activist partisans. 
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Posted by at May 30, 2012 5:31 AM
  

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