A corporation is not a “person” (unless it buys the right to be treated that way).

There’s an interesting addendum to add to my post yesterday about the fact the Supreme Court in the campaign finance case it heard arguments on two days ago seems to be assuming without question that corporations are just like individuals when it comes to constitutional rights. In other words, the Court is assuming, if a limitation on campaign contributions is a limitation on First Amendment free speech rights, then a limitation on campaign contributions by corporations is unconstitutional.

The case on which everyone founds the concept that a corporation is a person entitled to constitutional protections afforded to individuals did not even decide that question. Rather, in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), “[a]ccording to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara County . . . that:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

The court reporter duly entered into the summary record of the Court’s findings that

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.”

Moreover, the decision did not even rest on the constitutional assumption but, rather, on statutory grounds. Thus, Santa Clara County does not in any way stand for the proposition it is always relied on for — that corporations are persons for purposes of the individual rights protected by the Constitution.

It should be no great surprise that in 1886 the Court simply asserted without any consideration that a railroad was a legal person for constitutional purposes. It was a time when railroad companies owned the country. Who owns it now?