Corporate Personhood: Reflections by Jim Allison

In a recent TV show on the U.S. Supreme Court, Associate Justice David Breyer claimed with evident pride that the court would never hand down a decision without explanation. No, said Breyer, the court took care to explain its rationale for each and every decision.

Like any WILPF student of the genesis of corporate power in America, I thought immediately of the glaring exception to Breyer’s Law: the Supreme Court decision of 1886, in Santa Clara v. Southern Pacific R.R. (pdf link) This is the decision that became the precedent for corporate person hood, a holy grail that corporate lawyers had sought in vain for decades. It was the way to evade the interference of the state governments that had always chartered, controlled and regulated corporations.

With the Santa Clara decision corporations could and did claim the 14th Amendment protections that Congress had clearly framed for the benefit of freed slaves, not corporations. ". . . 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." Those protections, firmly embedded in law, enabled corporations to become the dominant force we see today in every phase of American life, from economics and politics to war and peace.

Such a momentous decision must surely provide a clear example of Breyer's Law. If we read the decision handed down in that case, we must surely find a closely reasoned explanation of the corporation’s metamorphosis from legal entity to person hood. But we find no such explanation.

The decision itself is about taxes and fences, not person hood. The only reference to person hood is in the decision's head note, a summary written by a clerk, with the approval of the court, to the effect that all justices thought corporations were entitled to constitutional person hood protections. Moreover, the history of the decision reveals that the court had instructed the litigants that it did not want to hear any arguments about the question of person hood.

To this day, the court has provided no rationale for corporate person hood, even though many members have expressed grave doubts about that status. The skeptics include liberals Hugo Black and William O. Douglas, conservative William Rehnquist, and most recently Sonia Sotomayor. The issue is still very much alive. Soon the court will decide a case that could suddenly remove all fetters on corporate campaign contributions. The basis for the suit is the First Amendment protection of freedom of speech, which corporations claim as an entitlement of corporate person hood.

If the likes of Breyer, Black, Douglas, Rehnquist and Sotomayor are correct, the 1886 court was a curious group indeed. Its evident leader in the Santa Clara decision was Chief Justice Benjamin Waite. What could possibly explain his behavior?

The archives of the Library of Congress contain 22 lineal feet of Waite’s papers. I wonder whether anyone has searched those papers for an explanation of the Santa Clara decision--a momentous one in American history and, if Breyer is any guide, a most peculiar departure from Supreme Court tradition.

Jim Allison is a member of the WILPF Corporations v. Democracy Committee and a leader of the WILPF Bloomington, Indiana branch.

Further Reading
Read about the amicus brief WILPF signed in the case of Citizens United vs. Federal Elections Commission, urging the Supreme Court not to overturn laws preventing corporations from making political contributions in federal elections.

WILPF has developed material to help you campaign locally to abolish corporate personhood.

WILPF also developed a ten session study guide to understanding corporate power.