From there it went to the Supreme Court, where the railroad’s attorney, Sanderson, confronted an up-and-coming lawyer who would become internationally famous three decades later for his defense in a notorious murder case (the case was made into the movie The Girl in the Red Velvet Swing, starring Ray Milland). Delphin Delmas, while physically unimposing and certainly not the bear of a man Sanderson was, was one of the most brilliant orators of his day.
Delphin Delmas v. Corporate Personhood
In his pleadings before the Supreme Court in the Santa Clara County v. Southern Pacific Railroad case, Delmas said: “The defendant has been at pains to show that corporations are persons, and that being such they are entitled to the protection of the Fourteenth Amendment… The question is, Does that amendment place corporations on a footing of equality with individuals?”
He then quoted from the bible of legal scholars—the book that the framers of our Constitution had frequently cited and referenced in their deliberations in 1787 in Philadelphia—Sir William Blackstone’s 1765 Commentaries on the Laws of England: “Blackstone says, ‘Persons are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.’”
Delmas then moved from quoting the core authority on law to pleading common sense. If a corporation was a “person” legally, why couldn’t it make out a will or get married, for example?
“This definition suggests at once that it would seem unnecessary to dwell upon the idea that though a corporation is a ‘person,’ it is not the same kind of person as a human being, and need not, of necessity—nay, in the very nature of things, cannot—enjoy all the rights of such or be governed by the same laws. When the law says, ‘Any person being of sound mind and of the age of discretion may make a will,’ or ‘any person having arrived at the age of majority may marry,’ I presume the most ardent advocate of equality of protection would hardly contend that corporations must enjoy the right of testamentary disposition or of contracting matrimony.”
The entire idea was beyond the pale, Delmas said. “The whole history of the Fourteenth Amendment,” he told the court, “demonstrates beyond dispute that its whole scope and object was to establish equality between men—an attainable result—and not to establish equality between natural and artificial beings—an impossible result.”
The purpose of the Fourteenth Amendment, passed just after the Civil War, was clear, Delmas said. “Its mission was to raise the humble, the down-trodden, and the oppressed to the level of the most exalted upon the broad plane of humanity—to make man the equal of man; but not to make the creature of the State—the bodiless, soulless, and mystic creature called a corporation—the equal of the creature of God.”
He summarized his pleadings before the Supreme Court by saying, “Therefore, I venture to repeat that the Fourteenth Amendment does not command equality between human beings and corporations; that the state need not subject corporations to the same laws which govern natural persons; that it may, without infringing the rule of equality, confer upon corporations rights, privileges, and immunities which are not enjoyed by natural persons; that it may, for the same reasons, impose burdens upon a corporation, in the shape of taxation or otherwise, which are not imposed upon natural persons.”
Delmas had every reason to assume the Court would agree with him—it already had in several similar cases. In an 1873 decision, Justice Samuel F. Miller wrote in the majority opinion that the Fourteenth Amendment’s “one pervading purpose 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.”
And, in fact, the court chose to stay with its previous precedent. It ruled on the tax aspects of the case, but explicitly avoided any decision on whether or not corporations were persons.
“There will be no occasion to consider the grave questions of constitutional law” raised by the railroad, the court ruled in its majority opinion. The case was about property taxes and not personhood, and “As the judgment can be sustained upon this ground, it is not necessary to consider any other questions raised by the pleadings.”
In other words, corporations are not “persons” for purposes of constitutional protections.
While the court had not ruled in Santa Clara that corporations should have rights under the Fourteenth Amendment, which can be easily seen from a reading of the case itself, the clerk of the court had a different idea. John Chandler Bancroft Davis wrote in the decision’s headnote that the chief justice had said that corporations were persons under the Fourteenth Amendment. It was published after the death of the chief justice, and although headnotes have no legal or precedential status, it was grabbed generations later by corporate lawyers to advance their own causes.
Indeed, as Justice Hugo Black noted in 1938, “Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty years after its adoption, less than one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations.”
Thus began in a big way (it actually started a half century earlier in a much smaller way with a case involving Dartmouth University) the corruption of American democracy and the shift, over the 125 years since then, to our modern corporate oligarchy.
The Roberts Court Rules
On January 21, 2010, in another five-to-four decision with the Republican five Justices on the winning side, the Supreme Court ruled that it is unconstitutional for Congress to pass or the president to sign into law any restrictions on the “right” of a corporation to pour money into political campaigns so long as the money isn’t directly given to the politicians, their campaigns, or their parties.
The majority decision, written by Justice Anthony Kennedy, was quite explicit in saying that the government has no right to limit corporate power or corporate “free speech.”
Kennedy began this line of reasoning by positing, “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”
He lays it out bluntly, writing, “The Court has recognized that First Amendment protection extends to corporations… Under that rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”
Two sentences later he nails it home: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”
Corporate executives and their lobbyists saw the value to them of this Supreme Court decision immediately. On February 7, 2010, the New York Times published an article by David D. Kirkpatrick titled “In a Message to Democrats, Wall St. Sends Cash to G.O.P.” The article explicitly quoted banking-industry sources who said that now that they could use their considerable financial power politically, they were experiencing “buyer’s remorse” over having given Obama’s presidential campaign $89 million in 2008: “Republicans are rushing to capitalize on what they call Wall Street’s ‘buyer’s remorse’ with the Democrats. And industry executives and lobbyists are warning Democrats that if Mr. Obama keeps attacking Wall Street ‘fat cats,’ they may fight back by withholding their cash.”