This new case, Citizens United v. Federal Election Commission, presented the best opportunity for the Roberts court to use its five-vote majority (a consequence of Republican rule in the White House for twenty of the last thirty years since Roberts clerked for Justice Rehnquist on a left-leaning court) to totally reshape the face of politics in America, rolling us back to the pre-1907 era of the Robber Barons.
Although he is handsome, with a nice smile and photogenic young children, Roberts is no friend to average working Americans. If anything, he is the most radical judicial activist appointed to the court in more than a century. He has worked most of his life in the interest of the rich and powerful and was chomping at the bit for a chance to turn more of America over to his friends.
In the Citizens United case, the Roberts court listened to arguments, took briefs, and even discussed it among themselves as if they were going to make a decision. But instead of deciding the case on the relatively narrow grounds on which it had originally been argued—whether a single part of a single piece of legislation (McCain-Feingold) was unconstitutional—John Roberts asked for it to be reargued in September 2009 and asked that the breadth of the arguments be expanded to reexamine the rationales for whether Congress should have any power at all to regulate corporate “free speech.”
Striking down any and all restrictions on corporate “free speech” was the logical end result of nearly 125 years of Supreme Court decisions, beginning in 1886 with the Santa Clara County v. Southern Pacific Railroad case, that conceded more and more constitutional rights that were supposed to be reserved for actual people over to corporations.
The Road to Personhood
After the Civil War, three amendments to the Constitution passed to provide fully for the rights of the newly freed African Americans who had formerly been held in slavery. The Thirteenth Amendment explicitly bans slavery; the Fifteenth Amendment guarantees their right to vote. And the Fourteenth Amendment says that they will have full access to the courts and cannot be denied a level of legal and constitutional protections equal to that of white people.
Here, for example, is the entire text of Section 1 of the Fourteenth Amendment, ratified in 1868:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Notice the word “person” in the text.
For over a thousand years of British common law and a century of American constitutional law, attorneys and legislators understood that there are two kinds of “persons.” The first, “natural persons,” are human beings. It was for them, for example, that the Magna Carta was written in 1215.
The second type of “persons” acknowledged by law are, broadly, states and nations, churches and nonprofits, and for-profit and other types of corporations. The reason such institutions need some sort of “personhood” status is so they can engage in interactions with the rest of us—own and pay taxes on land, for example, or sue and be sued. From the seventh-century origins of British common law to the 1870s, nobody seriously challenged these two types of personhood, the need for each, and their clear and explicit differences.
But in the Reconstruction era following the Civil War, the most powerful corporations in America—the railroads—saw an opportunity to use the arguably sloppy construction of the language of the Fourteenth Amendment to radically grab more power for themselves. They and their attorneys began to argue that when the Fourteenth Amendment was written, its authors in Congress explicitly said “person” rather than “natural person” in the last part of Section 1 because they fully intended it to include both “natural persons” and “artificial persons,” such as railroad corporations.
In plain language, they argued that the authors of the Fourteenth Amendment intended to free both the slaves and the corporations, giving to both full constitutional protections.
They sent these arguments up in the Ninth Circuit Court, then presided over by US Supreme Court Associate Justice Stephen J. Field (back then the SCOTUS Justices “rode the circuit” most of the year, and just met in Washington, DC, for a few months every year to convene as the Supreme Court). And Field was deeply in the pockets of at least one, and probably more, of the railroad barons.
When Field agreed with this argument that the Fourteenth Amendment freed the corporations along with the slaves in a Ninth Circuit Court case, which he then sent to the Supreme Court (on which he also sat), in 1873, Justice Samuel F. Miller minced no words in chastising corporations for trying to claim the rights of human beings.
The Fourteenth Amendment’s “one pervading purpose,” he wrote in the majority opinion, “was the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.”
The railroads, however, had a lot of money to pay for lawyers, and railroad lawyer S. W. Sanderson had the reputation of being a pit bull in the courtroom. Undeterred, the railroads again and again argued their corporations-are-persons position all the way to the Supreme Court. The peak year for their legal assault was 1877, with four different cases reaching the Supreme Court in which the railroads argued that governments could not regulate their fees or activities or tax them in differing ways because governments can’t interfere to such an extent in the lives of “persons” and because different laws and taxes in different states and counties represented illegal discrimination against the persons of the railroads under the Fourteenth Amendment.
In 1882 the railroads’ attorneys floated the claim in a Supreme Court pleading that when the Fourteenth Amendment was drafted, “a journal of the joint Congressional Committee which framed the amendment, secret and undisclosed up to that date, indicated the committee’s desire to protect corporations by the use of the word ‘person.’”
It was a complete fabrication, and they lost the 1882 case: Nobody took the “secret-journal theory” seriously except Justice Field, who had ruled in the railroad’s favor in the Ninth Circuit Court.
Nonetheless, the railroad corporations were persistent, and in future cases the railroad attorneys were unable to produce or even prove legislative reference to the secret journal of the congressional committee.
In 1886, they received another chance while fighting another lawsuit for nonpayment of taxes from Santa Clara County, California. As usual, Justice Field had ruled in the railroads’ favor, suggesting in his Ninth Circuit Court ruling that they were “persons” suffering unequal justice because different counties used different methods to compute the property taxes the railroad should pay.