“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.” (bold and italics mine – JA)
Those are the “due process” and the “equal protection” clauses of the Constitution. Look at the date of the amendment and consider what the amendment says and you’ll be quite clear about its intent: This was entirely about protecting and advancing the condition of former slaves. In the wake of the Civil War many southerners did whatever they could to retain their former advantage, this to the extreme disadvantage of former slaves, now free in name only, so this amendment was both clear and necessary.
Eighteen years later a lawsuit appeared on the docket of the Supreme Court. Santa Clara County v. Southern Pacific Railroad was a tax jurisdiction case that tested the provisions of then-new California laws against those of the federal government. The case was decided in favor of the railroad and, oddly, that turned out to be the least important thing associated with this lawsuit.
The court reporter for the Supreme Court was Mr. J. C. Bancroft Davis. He, like other court reporters of his day, was far more than a stenographer for the cases presented before the court. Back then the job of court reporter was a most prestigious position and Mr. J.C. Bancroft Davis was actually paid more money than Chief Justice Morrison Remick Waite.
Recordings of the proceedings were made with up to-the-moment technology, ink pen and paper, and Mr. J.C. Bancroft Davis had the good fortune to be allowed to publish his recordings of the proceedings and collect royalties for his efforts. Along with his best efforts to record the case by hand, he was allowed to publish what were called “headnotes”. These are comments of the court reporter and were not part of the court’s opinions or rulings, nor intended by the court as legal precedent. Indeed, headnotes were not even from the court proceedings, but were solely the comments of the court reporter.
Here is what Mr. J.C. Bancroft Davis wrote in his headnotes to the publication of the proceedings of the Santa Clara County v. Southern Pacific Railroad case:
“The defendant corporations are persons within the intent of the clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States . . . “
Corporate “personhood” was not tested before the court in this case; remember that this was a simple tax jurisdiction issue. That makes what followed Mr. J.C. Bancroft Davis’ writings the strangest part of this case: Davis’ headnotes, his editorial opinion, has been cited as precedent for all of the efforts to give corporations the same rights as flesh and blood human beings ever since.
That’s right: A constitutional amendment that was designed to protect former slaves was and is being used to give artificial personhood to inanimate corporations. It is what is allowing billions of corporate dollars to influence our elections and bend legislation and regulation to the desires of those same corporations. It is what drives huge cash contributions to political candidates and influences voting in Congress.
Right now 91% of Americans want universal background checks and registration for all gun sales. Legislation to accomplish that is clumsily being cobbled together in Congress but getting our corporately influenced legislators to do the will of the people is proving to be really difficult. And to reemphasize the insanity causing that, the engine driving congressional intransigence is based not on the decision of a court, but on an editorial opinion of one court reporter
That strange and damaging precedent was set one hundred forty five years ago and we are still feeling its effect, perhaps now more than ever. Likewise, the decisions we make today will be felt by our descendents one hundred forty five years from now. That is to say, just as sure as the flow of impact from Mr. J.C. Bancroft Davis’ headnotes to us, there will be an impact of what we do today on our great-great-great-grandchildren when they are adults just like you.
You can be passive and do nothing; that is your right as an American. After all, you have the right to vote, but not the legal obligation. You have the right to appeal to your elected officials to act as you prefer, but that is not a requirement of citizenship, either.
On the other hand, you might want to close your eyes and envision the America you want for your children, your grandchildren and, if you can see that far, for your great-grandchildren. Likely, if you do nothing, that’s not what they’ll inherit. Indeed, unless you speak up, the vision of people who want a very different America from the one you want will be the America of tomorrow, because those people will be the only ones talking.
Perhaps you really do have something to say to your legislators. Go ahead. Tell them. Now.
Copyright 2019 by Jack Altschuler
Reproduction and sharing are encouraged, providing proper attribution is given.