Corporate personhood, monopoly capital, and the precedent that wasn’t: The 1886 “Santa Clara” case

Feb 9, 2023


Editor’s note: Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues to attack hard-won and elementary democratic rights in the United States, from affirmative action to the Indian Child Welfare Act. The following article is the third in our series “Crimes of the Supreme Court,” which demonstrates the fundamentally reactionary and anti-democratic nature of the Supreme Court. By examining key decisions in the Court’s history, we explain their historical and political context, the legal concepts and frameworks used to justify their decisions, and lay out their implications for later cases. This entry focuses on an 1886 Supreme Court ruling that is often cited as the precedent guaranteeing corporations the same protections as “natural persons,” although it did no such thing. Nonetheless, this case and several preceding ones demonstrated how the struggle for corporate personhood—particularly under the “Equal Protection Clause” of the 14th Amendment—was intimately bound up in the transition to U.S. monopoly capitalism.

Introduction

How do the actual people in charge of corporations manage to remain protected from the consequences of the countless crimes they commit year after year? How is it that when CEOs make clear and obvious decisions that habitually violate every existing worker-won regulation, from the Clean Air Act to the Civil Rights Act, with very few exceptions, they charge the corporation—the “artificial” or “unnatural” person—instead of the CEO—the actual, “natural person” who made those decisions?

The legal grounds that corporations have the same protections and rights as “natural persons” is commonly justified by the 1886 Supreme Court ruling in Santa Clara County v. Southern Pacific Railroad Company. As we’ll see, the Court’s decision in the case didn’t establish any precedent for corporate personhood, nor did the Court make any ruling on it. To the extent that the Supreme Court even debated “artificial,” “corporate,” and other kinds of personhood, they did so to facilitate the transition from “free competition” to monopoly capitalism in the country.

In this article, we explore the Santa Clara case before turning to debates within the institutions of power in the U.S. over the Equal Protection Clause of the 14th Amendment. These debates can only be understood if situated within their historical, political, and economic context: the transition to monopoly capital in the U.S. To conclude, we explore the case’s destructive legacy, or the way it was illegitimately used to set precedent for the growth of monopoly capital.

The facts and outcome of the case

During the 1878-79 California Constitutional Convention, the state enacted a new tax code that, in part, prevented railroad corporations from factoring existing debts and mortgages into their total taxable value. The Southern Pacific Railroad Company, along with the Central Pacific Railroad Company, refused to follow the new code. They did not pay the additional tax, nor did they pay the back taxes they subsequently owed.

The first point of contention were back taxes—including the interest on them—that railroad companies refused to pay in California, specifically the taxes being levied on the fencing along the railroads’ right-of-way. Among the handful of complaints brought forth, lawyers representing the railroads argued that it was the county and not the state that should have assessed the value of the fencing. As Thom Hartmann points out, “the railroad was refusing to pay taxes of about $30,000,” which is “like having a $10,000 car and refusing to pay a $10 tax on it—and taking the case to the Supreme Court” [1].

Faced with the loss of revenue, a number of counties in California, including San Mateo County, filed suit against the railroad companies in an attempt to collect the taxes that the railroads refused to pay. According to Southern Pacific’s executives, they were being treated unfairly relative to “legal” or “natural” persons who could deduct debts and mortgages from their taxable income or value. The cases were consolidated before reaching the California Supreme Court, which ruled mostly in favor of the counties and against the railroad companies. The one exception concerned the fences constructed around the railroads. The Court affirmed that the fences “were improperly included by the State Board in its assessments” and, as a result, there was no legal basis for the counties to collect additional taxes [2].

The origins of corporate personhood?

Interestingly, however, the Santa Clara decision is rarely remembered for the issue of taxation and, more specifically, the role of railroad monopolies, and is instead mostly cited as the first instance of the Supreme Court upholding “corporate personhood.”

One of the railroad’s defenses at the Supreme Court hearing included arguing that the “Equal Protection Clause” of the 14th Amendment applied to corporations, so therefore the state couldn’t tax them differently from other citizens. Yet this was only a minor point among the six arguments presented by the railroads.

Moreover, it seems Chief Justice Morrison Waite quickly dismissed the argument in the case by stating that it is a general, agreed upon principle that the clause applies to corporations.  According to the ruling’s “headnote,” Waite stated the Court would not even consider “whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does” [3].

Did the Supreme Court, then, establish a legal precedent that corporations have the same legal protections as natural persons? Despite the Supreme Court citing it as precedent for a century, and despite that it was routinely taught to law students as precedent, the ruling did no such thing.

Waite’s comment above was not part of the official ruling. Instead, it was included in a headnote written by the Court’s Reporter of Decisions, journalist J.C. Bancroft Davis, former president of the Newburgh and New York Railway Company. Headnotes are introductory summaries of cases added to Court rulings to make it easier for legal professionals and others to sift through cases.

Headnotes, therefore, are not legally-binding and hold no legal authority. It wasn’t until the 1906 ruling in United States v. Detroit Lumber Co. that the Supreme Court officially ruled in its majority opinion that headnotes aren’t part of the Court’s rulings or findings. As then-Chief Justice David Brewer wrote, “the headnote is not the work of the court, nor does it state its decision… it is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports” [4]. This, however, hasn’t prevented the U.S. courts in general, and the Supreme Court in particular, from citing the headnote as precedent.

The headnote is significant in a few ways. First, the report of Waite’s comments didn’t include any legal or constitutional justification; it was a mere assertion. As a result, since 1886 the status of corporations as “people” protected under the Constitution has been a source of controversy. Moreover, “the concept of the corporate person lacks a principled definition and, therefore, seems to expand, or contract, depending on the circumstances and on the personal predilections of the speaker” [5].

The headnote is especially significant because of Waite’s sweeping acceptance that corporations are protected by the Equal Protection Clause of the 14th Amendment. This differs from a previous Court ruling in the 1873 Slaughterhouse Cases that made their way to the U.S. Supreme Court after an 1869 Louisiana legislature decision to issue a charter confining slaughterhouse operations in New Orleans to a single corporate entity, the Crescent City Live-Stock Landing and Slaughter-House Company.

Crescent City’s charter required the company to run its waste downstream, ordered other slaughterhouses, most of which were much smaller, to close, and forbid the establishment of any new slaughterhouses in the area for the next 25 years. In effect, the legislature produced a monopoly on slaughterhouses for the time period. This meant that all workers, including butchers, had to work for Crescent or find work elsewhere. As a result, hundreds of members of the Butchers’ Benevolent Association, which represented smaller or independent slaughterhouses, filed suit in the Louisiana Supreme Court on the basis that the monopoly violated the 13th and 14th Amendments by forcing butchers into “involuntary servitude” and taking away their property without compensation or due process.

When the U.S. Supreme Court took up the cases, the majority opinion explicitly stated that the Amendments did not apply in this instance. The dissenting opinion by Justice Stephen Field proposed a broad definition of the Amendments at stake, one that would become more expansive as the overthrow of Reconstruction solidified. The crucial issue, he stated, was “whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation.” Field closed the dissenting opinion by asserting that the 14th Amendment applies to corporations and monopolies. He wrote that the Amendment “does afford such protection, and was so intended by the Congress which framed and the States which adopted it” [6].

Between his time on California’s Ninth Circuit Court and the Supreme Court, “Field worked tirelessly to expand the 14th Amendment to include the rights of corporations.” He was driven by careerism and a desire to reach the country’s highest court and maybe even the presidency “with the support of railroad money” [7].

In his dissenting opinion in a related railroad case, Fields expressed his outrage that the Court was neglecting the crucial question, which was if “an unlawful and unjust discrimination was made . . . and to that extent depriving it of the equal protection of the laws” [8].

Whether or not the original drafters of the post-Civil War amendments explicitly considered if and how the 14th Amendment—or the 13th— could apply to corporations or any group other than Black people is unclear. Based on available records, some argue that Congress may indeed have considered or intended for corporations to be included in the 14th Amendment, as the original drafters “were inundated with petitions from insurance companies and railroads complaining about protectionist state measures” [9]. That the 14th Amendment makes a distinction between “persons” and “citizens” is also significant, as the former “are entitled to due process and equal protection” while the latter are only “guaranteed the privileges and immunities of national citizenship” [10].

What is certainly true, however, is that almost none of the 14th Amendment cases heard by the Supreme Court concerned the rights of Black people. The Supreme Court itself affirmed this in 1938. In his dissenting opinion on Connecticut Gen Life Ins C. v. Johnson, Justice Hugo Black cited Miller’s majority opinion in the 1873 Slaughterhouse cases, doubting that the 13th and 14th Amendments would include anyone except Black people. “Yet,” he continued, “of the cases in this Court in which the 14th Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent. invoked it in protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations” [11].

Further, recent history affirms that the U.S. ruling class considers and treats corporate entities much more humanely than they treat Black people.

Corporate personhood and a new phase of U.S. capitalism

The period leading up to the 1886 case was characterized by monumental shifts in the political, social, economic, and racial order of the U.S. This included the heroic Reconstruction era as well as its tragic defeat and the rapid growth of monopoly capital in the country.

In the decade leading up to Santa Clara case, railroad barons emerged as a new faction of the capitalist class that provided the model for monopoly capital. This is why, just before the 1878-79 California Convention, California allowed the Southern Pacific Railroad Company to absorb several other corporations. Prior to that, Congress granted 11 million acres of land to Southern Pacific, although for their expansion the company acquired additional debts through a mortgage on its construction, equipment, railcars, and so on. Southern Pacific was also granted the legal authority to construct a line connecting San Francisco to Texas.

The trend toward monopoly predated the Civil War and coincided with the ongoing conquest of the continent. Large corporations, with state funding, facilitated the expanding interstate commerce through railways and canals, which in turn led to a larger and more integrated national economy. Federal and state legislatures promoted this centralization of capital insofar as it took the economic burden off the state while still allowing the state to use the new networks for postal and military purposes.

The pressing question for the U.S. ruling class was whether or not the government-backed monopolists would ultimately represent a unique and temporary phenomenon or provide a model for capital as a whole.

There was a clear struggle between the ideologues of small enterprises that formerly dominated the economic landscape and operated similarly to the idealistic “free competition” phase of capitalism and those of monopoly capital, where the various enterprises dispersed throughout different entities were consolidated into large ones.

As Morton J. Horowitz details in his account of how legal structures raced to keep up with the latest changes in capital, in the 1880s there wasn’t any precedent about “natural” or “corporate” persons because these categories threatened individualism and free-market competition. By the turn of the century, however, the struggles over “political economy between small entrepreneurs and emergent big business over the legitimacy of large scale enterprise” erupted [12].

The debates taking place within the ruling class had to do with whether or not there was an inherent tendency for capital to centralize. At the time, most political economists didn’t give credence to the inevitability of monopolization, seeing the railroads as exceptional. It didn’t take long until politicians, bourgeois economists, and others rightly interpreted the railroad’s economic trajectory as a precursor to a coming phase of industrial monopolization.

There was a shift in power and influence within the capitalist class from the old “free enterprise” capitalists to the new monopolists:

“By the late nineteenth century in America, fundamental changes had already taken place in the legal treatment of the corporation. First, and by far the most important, was the erosion of the so-called ‘grant’ or ‘concession’ theory of the corporation, which treated the act of incorporation as a special privilege conferred by the state for the pursuit of public purposes. Under the grant theory, the business corporation was regarded as an ‘artificial being’ created by the state with powers strictly limited by its charter of incorporation. As we shall see, a number of more specific legal doctrines were also derived from the grant theory in order to enforce the state’s interest in limiting and confining corporate power” [13].

From this point of view, the rise of monopoly capitalism, or the centralization of larger and larger sectors of the means of production into fewer and fewer hands, is driven by the self-expansive and competitive nature of capitalist production. The Supreme Court provided the legal grounds for facilitating this transformation.

Legacy of the case

In the immediate aftermath of Santa Clara, “the Court did away with 230 state laws that had been passed to regulate corporations” [14]. It was clear evidence monopoly capital was in control of politics. Supreme Court decisions in the years between 1908 and 1914, often citing corporate personhood, struck down minimum-wage laws, workers’ compensation laws, utility regulation, and child labor laws—every kind of law that a people might institute to protect its citizenry from abuses” [15].

For over a century now, the state has continued to take power and rights away from working and oppressed people and transferred it to capital. They have even perverted the hard-won gains won by people’s movements into justifications for increasing corporate power, perhaps none more disgusting than the misuse of the 14th Amendment.

While even to this day there is no clear legal basis for corporate personhood, that hasn’t stopped the Supreme Court from waging class war against the people on behalf of corporations. Because the nine unelected judges determine the law, they can legally justify whatever tactics they deploy against us.

The misuse of Santa Clara’s headnote has not only severely inhibited the ability to regulate corporations, but it has created a space for CEOs and shareholders to operate with near impunity. For example, Joel Bakan notes that “corporate illegalities are rife throughout the economy…By design, the corporate form generally protects the human beings who run corporations from legal liability, leaving the corporation, a ‘person’…the main target of criminal prosecution” [16].

The Supreme Court was created to serve the interests of the capitalist class. Its very existence stands as a barrier to the working and oppressed peoples’ desire for a true democracy. As the Supreme Court unleashes its most current wave of attacks on our basic democratic rights, we will continue to fight for a new system.

References

[1] Thom Hartmann, Unequal Protection: How Corporations Became People–and How You can Fight Back (San Francisco: ‎ Berrett-Koehler Publishers, 2010), 18.
[2] Santa Clara County. v. South Pacific Railroad, 118 U.S. 394 (1886), 411. Available here.
[3] Ibid., 396.
[4] United States v. Detroit Lumber Co., 200 U.S. 321 (1906). Available here.
[5] Malcolm J. Harkins III, “The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act, and the Corporate Person: How a Historical Myth Continues to Bedevil the Legal System,” Saint Louis University Journal of Health Law & Policy 7, no. 2 (2014): 204.
[6] Ibid.
[7] Nicholas S. Paliewicz, “How Trains Became People: Southern Pacific Railroad Co.’s Networked Rhetorical Culture and the Dawn of Corporate Personhood,” Journal of Communication Inquiry 43, no. 2 (2019): 204-205.
[8] Cited in Ibid.
[9] Matthew J. Zinn and Steven Reed, “Equal Protection and State Taxation of Interstate Business,” The Tax Lawyer 41, no. 1 (1987): 89-90.
[10] Ibid., 90.
[11] Connecticut General Life Ins. Co v. Johnson, 303 U.S. 77 (1938). Available here.
[12] Morton J. Horowitz, “Santa Clara Revisited: The Development of Corporate Theory,” West Virginia Law Review 88, no. 2 (1986): 187.
[13] Ibid., 181.
[14] Howard Zinn, A People’s History of the United States (New York: Perennial Classics, 1980/1999), 261.
[15] Hartmann, Unequal Protection, 24.
[16] Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (New York: The Free Press, 2004), 75-79.

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