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

January 21, 2010

     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.