‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie

The Atlantic – by Adam Winkler

Somewhat unintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits over 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

That corporation was the Southern Pacific Railroad Company, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment. Adopted after the Civil War to protect the rights of the freed slaves, that amendment guarantees to every “person” the “equal protection of the laws.” Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity.

The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation). More than most lawyers, Conkling was seen by the justices as a peer.

It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.Years later, historians would discover that Conkling’s journal was real but his story was a fraud. The journal was in fact a record of the congressional committee’s deliberations but, upon close examination, it offered no evidence that the drafters intended to protect corporations. It showed, in fact, that the language of the equal-protection clause was never changed from “citizen” to “person.” So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions. And, prior to Conkling’s appearance on behalf of Southern Pacific, no member of the drafting committee had ever suggested that corporations were covered.There’s reason to suspect Conkling’s deception was uncovered back in his time too. The justices held onto the case for three years without ever issuing a decision, until Southern Pacific unexpectedly settled the case. Then, shortly after, another case from Southern Pacific reached the Supreme Court, raising the exact same legal question. The company had the same team of lawyers, with the exception of Conkling. Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal. Had those lawyers believed Conkling, it would have been malpractice to leave out his story.

When the Court issued its decision on this second case, the justices expressly declined to decide if corporations were people. The dispute could be, and was, resolved on other grounds, prompting an angry rebuke from one justice, Stephen J. Field, who castigated his colleagues for failing to address “the important constitutional questions involved.” “At the present day, nearly all great enterprises are conducted by corporations,” he wrote, and they deserved to know if they had equal rights too.Rumored to carry a gun with him at all times, the colorful Field was the only sitting justice ever arrested—and the charge was murder. He was innocent, but nonetheless guilty of serious ethical violations in the Southern Pacific cases, at least by modern standards: A confidant of Leland Stanford, Field had advised the company on which lawyers to hire for this very series of cases and thus should have recused himself from them. He refused to—and, even worse, while the first case was pending, covertly shared internal memoranda of the justices with Southern Pacific’s legal team.

The rules of judicial ethics were not well developed in the Gilded Age, however, and the self-assured Field, who feared the forces of socialism, did not hesitate to weigh in. Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”So, with Field on the Court, still more twists were yet to come. The Supreme Court’s opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court’s opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J.C. Bancroft Davis, whose wildly inaccurate summary of the Southern Pacific case said that the Court had ruled that “corporations are persons within … the Fourteenth Amendment.” Whether his summary was an error or something more nefarious—Davis had once been the president of the Newburgh and New York Railway Company—will likely never be known.

Field nonetheless saw Davis’s erroneous summary as an opportunity. A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.

His gambit worked. In the following years, the case would be cited over and over by courts across the nation, including the Supreme Court, for deciding that corporations had rights under the Fourteenth Amendment.Indeed, the faux precedent in the Southern Pacific case would go on to be used by a Supreme Court that in the early 20th century became famous for striking down numerous economic regulations, including federal child-labor laws, zoning laws, and wage-and-hour laws. Meanwhile, in cases like the notorious Plessy v. Ferguson(1896), those same justices refused to read the Constitution as protecting the rights of African Americans, the real intended beneficiaries of the Fourteenth Amendment. Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.

The day back in 1882 when the Supreme Court first heard Roscoe Conkling’s argument, the New-York Daily Tribune featured a story on the case with a headline that would turn out to be prophetic: “Civil Rights of Corporations.” Indeed, in a feat of deceitful legal alchemy, Southern Pacific and its wily legal team had, with the help of an audacious Supreme Court justice, set up the Fourteenth Amendment to be more of a bulwark for the rights of businesses than the rights of minorities.


9 thoughts on “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie

  1. Nice history of corporate person-hood, but the fact remains that someone (a real person or people) needs to be held accountable for corporate crimes.

    The corporate board of directors makes the decisions regarding corporate behavior, so they’re the people who should be hanged. No board member should be found innocent because of their contrary vote, unless they left their position rather than participate in the crimes.

  2. The article is mixing two different languages sort of speak.

    The term “Person” in legal terms does not mean man but denotes a condition or status.

    “Term” is a word limited in scope. Legalese
    The Dictionary meaning of the word “person” is not held to the limits of the “term – person” defined in the statutes. Which in our everyday language we use to mean man.

    Legalese and common language are not same language.

    Yes, there is a lot of this crap in Legalese. Not in my mind moral but it is what it is. They trap us with meaning.

    “Status” is about one’s relationship to, in this case, the statutes/law. If someone is under jurisdiction of a statute/law then they have obligations and privileges, in this relation. Like having a Sam’s or Costco card one can shop. And is why at Sam’s, at least, one must show their Receipt. But at WallyWorld they can’t make you. One you have a contract with the other you don’t.

    If you have a child the you would have status as father or mother.

    Because the cooperation is a creation of the state it is and always had the status under statutes/laws as a legal entity “person.”

    So someone that has status as a “person” is a legal entity.

    And yes the state could create a new class of legal entity for corporations.

    I always wondered why DA’s don’t lock’em up.

    More on this at the link


    1. Under the common law, which is the Bill of Rights, the state, through contract, cannot be a litigant, as the 6th Article to the Bill of Rights declares the right to face the accuser and question the accuser. In order to receive an answer, the accuser cannot be a piece of paper. And if someone pretending to be the litigant is in fact representing a piece of paper, they cannot represent an injured or wronged party.
      I know what you are trying to do and you are not going to do it here. You are not going to regain control of an illegal authority that puts you aside as elite through legalese. Common law means just that. Hold up a piece of paper and try to convince me that it stands as an entity on a par with me in common understanding. Horseshit. Tell your people they are finished, as they are the original traitors and will be treated as such.

    2. I want what everything meant when the Bill of Rights was first written, not some bullshit legal ease as defined by today terms.

      Definitions are being changed by the second as to what some creature thinks is appropriate in today’s world. When does it end???

  3. You do assume much that is not in evidence.

    So what am I trying to do?

    If one is under “common law” then one would not have status as a “person” under the statutes/law.

    But if one is under the “14th CONstitution” they would be a person.

    If one has a driver license then they are a person under the corresponding codes.

    One can not mix different laws/rules.

    1. “One cannot mix different law/rules”
      Bottom line, buddy, no contract can be created at any level under the Constitution that eliminates the due process requirement in the Bill of Rights. – 9th Article Bill of Rights
      A piece of paper, acting to its own benefit and of its own accord, cannot file for grievance in a common law court.
      We the people are guaranteed the common law.
      A person, being a living being, can file for a damage done to that person through a breach of contract, but he does not sue the contract, he sues the other person he is in contract with. And if he is not the damaged party he cannot make an affidavit for a damage not done to his person as a living being.
      As for the driver license, it is an illegal contract as it would pretend to change the status of a person as a living being and remove procedural due process rights without a due process of law in violation of the 9th Article of the people’s Bill of Rights.
      As far as the 14th Amendment, it is irrelevant as it was created without authority to do so, as the 9th Article declares no such authority could ever exist.
      It is not the people who are without status in the statutes, the statutes simply cannot apply to us.
      The ‘common’ in common law means exactly that. Common understanding and common definitions from the dictionary common to the people. It is and has always been the common understanding of the people that a person is a living being.
      Again, I know what you are trying to do here and we are not going to play these f#@king games, no matter what name you come under. The constitutional contract is null and void via the incurable breach. The state contracts are no more for the same reason. The power is reverted back to we the people and we stand to enforce our rights at the barrels of our guns, as this seems the only way you great legal minds can understand what we are saying.
      Got it?

    2. “If one has a driver license then they are a person under the corresponding codes.”

      So, are you claiming that you’re the ‘person’ listed on that driver’s license?

      Guess you’ve never heard of the strawman.

      Do some serious research before coming to this site, or you’re nothing more than hot air.

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