The murky history of J. C. Bancroft Davis and corporate personhood

     This is about a murky historical event most Americans are unaware of, when one man in a somewhat bureaucratic position changed the course of corporate history. Today’s Supreme Court decision on campaign contributions from corporations prompts this piece. You will probably never see me write about Constitutional Law again, but you never know what rolls through my mind, so no guarantees. A few years ago I came into possession of a really interesting book lot containing many early governmental books and documents. One that caught my eye was “Papers Relating to the Foreign Relations of the United States Transmitted to Congress, With the Annual Message of the President from 1874”   It was interesting in its own right, with the President at that time being Ulysses S. Grant. But what really caught my eye was the declaration printed on the cover that this was from the library of J. C. Bancroft Davis. My mind is an incredible mish mash of unsorted data, and something about the name sent me off into a flurry of research. Sure enough, he was from Worcester, Massachusetts which was the nearest city to where I grew up.  He led an interesting life in business and government, he was Assistant Secretary of State when this book was published. He also was President of the Newburgh and New York Railway (keep this in mind for later). He eventually became Reporter of Decisions for the Supreme Court and that is where he, singlehandedly in a headnote he wrote, gave corporations much of the “personhood”  that they enjoy today.

     Today’s Supreme Court decision on campaign contributions broadens the interpretation of corporations having many of the rights of human beings. There will obviously be much disagreement on whether this was ever intended under our Constitution. But what fascinates me is how one person at the right place and time really can alter the flow of events. The case that really called corporations ‘persons’ for the first time was a railroad dispute. This was in the 1880’s, full of robber barons such as Gould and Carnegie.  The case was ‘Santa Clara County v. Southern Pacific Railroad‘ for those who want to delve into this further. It was basically about railroads calculating their tax as people would, and not as businesses normally do. It eventually went all the way to the Supreme Court. After the Supreme Court writes it’s opinions on the case, it’s the job of the court reporter to write a short summary called a headnote which is a summary of the decision. Davis was the Reporter of Decisions at the time, and included in his summary a phrase that is nowhere in the opinions of the court, but is what much of the concept of ‘corporate personhood’ is based on. “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 the opinion that it does”, in other words saying corporations enjoy the same rights as a person under the 14th amendment. Headnotes are treated with the force of law, and thus were corporations armed with one of their most potent legal weapons, personhood, not by the Supreme Court itself but by the court reporter who just happened coincidentally to have been a corporate railroad president earlier in his life.

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7 Responses to The murky history of J. C. Bancroft Davis and corporate personhood

  1. CTK1 says:

    “The case that really called corporations ‘persons’ for the first time was a railroad dispute.”

    I’ve been disgusted by this for years and had no idea of its origins. I really like this piece. Informative for sure and also sparks a former interest… I’ve wanted to read about the railroads ever since seeing “Once Upon A Time In The West.” Perhaps silly reason, but I became fascinated. Not sure how I lost the interest in the rail. As for the ‘corporate persons’ origins I stuck with ignorance and simply blamed Reagan… one of my favorite pastimes. If it’s horrible, bad for the people, ruining America, it’s Reagan :-)Now I know better! Good job Roger.

  2. Roger, you never cease to amaze me. Not only have you come up with one of the more original blogs I’ve read recently, but truly informative. It also says a lot about you, the man. I can see you rummaging through your books, dusting this one off and researching like crazy to satisfy your curiosity. The world needs more men like you, Rog. Kudos. You know how I love trains… maybe now that I know my train is a person, I should name it. Perhaps, Smoky? Great post!

  3. Were there no written decisions, from both the minority and majority Justices, filed, and put in an official archive somewhere??? I would have thought the “Reporter of Decisions,” aka Mr. Davis’ report would have been nothing more than a summary for the media (newspapers) and kept in a morgue or totally different place than the actual, perhaps certified, formally written decision of the Court. What am I missing here??? How many other early-day Marcia Coyle’s have submitted erroneous/altered reports and become a shadow, 4th branch of government???

  4. […] Truth in Advertising? Political Ads in 2010 Likely To Push Boundaries. 22 06 2010 Fresh off of the decision by the Supreme Court in Citizens United v. the Federal Elections Commission, where the Supreme Court in a 5-4 decision ruled “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”  In Citizens, the Supreme Court in part overruled Austin v. Michigan Chamber of Commerce, which prohibited corporate spending in campaigns, and McConnell v. Federal Election Commission, concluding, “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” (For information on corporate personhood, see here.) […]

  5. j. moran says:

    To the bookdealer-author of “The Murky History”: I’ve been going through hoops to find your piece, and I succeeded today.
    However-
    I’m certain the original was considerably longer; it contained a description of your trek to look at the original decision — UVa Law Library? I’m not sure where it was — but I would very much like to retrieve the entire article you wrote on this subject. How can I?
    Many thanks –

  6. Elizabeth says:

    Love this case enough that it is the topic of my masters thesis

  7. M Kerby says:

    I’ve been interested about this for the decades I’ve heard. Thank you. You gave me the specifics on the history of where it came from. Shame we can’t really give a corporation, who does horrible deadly things, the death sentence. Yes, there is litigation, which leads to teaching the corporation a lesson in how to do bad things better. They reorganize corporately. Then continue onward, over the casualties, public and private (employees). Names, when they get dirty, are similar to a dirty shirt..bloody? Take it off, throw it away, then put a new shirt (name) on. Personnel are exactly the same. Scapegoats

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