Follow the money: How one crooked lie became a 140-year assault on America
Corporations can now vote in Delaware. And they’re doing it.Seriously. Not dystopian science fiction or a new novel by an AI version of George Orwell. Actual corporations — what America’s first Supreme Court Justice, John Marshall, in 1819 called “an artificial being, invisible, intangible, and existing only in contemplation of law” — are today voting in elections for everything from the mayor and town council to referendums on corporate taxes and limits on corporate behavior.What could possibly go wrong?There are, after all, more corporations than people in Delaware. They can now decide who’s going to run the government, what the laws are, and — through their votes to elect humans who’ll take corporate money to do what corporations want (something else that corrupt Republicans on the Supreme Court legalized) — even what regulations companies must follow and what limits there are on their behavior.In a few weeks, my next book will be coming out, “Who Killed the American Dream: The Greatest Political Crime Ever Told,” and the timing couldn’t be more synchronous.The book, written like a murder mystery but 100% true, tells the story of how a corrupt Supreme Court clerk conspired with a corrupt Supreme Court justice to hand “corporate personhood” to the railroad corporations that were then among the richest and most powerful in the world.The decision was handed down in 1886; in it, the Court itself didn’t say a single word about corporate personhood. Back then corporations had the rights of “artificial persons” so they could pay taxes, own land, and execute contracts and lawsuits, but nobody seriously claimed they could assert human rights like free speech, privacy, or the right to vote.But the clerk of the Court, a wealthy plutocrat named John Chandler Bancroft Davis, slipped into the headnote of the case — a commentary for law students and others wanting a summary of a decision, which carries absolutely no legal weight whatsoever — that the Chief Justice, Morrison Remick Waite, had claimed corporations were “persons,” implying they had rights under the 14th Amendment.The railroads then hired a few retired members of Congress who were on the committees that wrote the Amendment as frontmen and for the next five years they traveled the country claiming that the “actual intent” of the authors of the 14th Amendment was to grant human rights to corporations, not former slaves.Their efforts worked; just 10 years later, in the Covington & Lexington Turnpike v. Sandford case, the Court cited the Santa Clara decision and ruled:“[C]orporations are persons within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law as well as a denial of the equal protection of the laws.”That badly abused Amendment, ratified on July 9, 1868, was written to liberate formerly enslaved people, and its language is pretty clear about that:“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.” (emphasis added)The railroad corporations claimed that because they were taxed at different rates on property they owned in Santa Clara and Santa Ana counties in California, they were “persons” being denied the “equal protection of the law.” The Court determined that the California constitution already dealt with tax issues like that, giving the railroad the relief they wanted, but there was no federal action at all.However, the lie about corporate personhood buried in the headnote took root and lives on to this day. For example, yesterday afternoon I asked DuckDuckGo’s AI the question:“Who won the 1886 Santa Clara Supreme Court decision?”And the answer I got back was:“The Southern Pacific Railroad Company won the 1886 Santa Clara County v. Southern Pacific Railroad decision. The Supreme Court ruled in favor of the railroad, affirming that corporations are considered ‘persons’ under the Fourteenth Amendment.”None of that is true, but it was nonetheless the basis of the 1978 First National Bank v Bellotti decision written by Lewis Powell himself (of “Powell Memo” fame), claiming that because corporations are “persons” with rights under the Bill of Rights — including the First Amendment right to free speech — they could spend big bucks to swing elections. In that decision, the Court majority footnoted:“It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394 (1886); see Covington & Lexington Turnpike R. Co. v. Sandford, 164 U. S. 578 (1896).”Because corporations don’t have mouths to speak with, Powell reasoned, their money served the same purpose.
