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.

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The Public Utility Responsibilities of a Monopoly

August 16, 2009

     There has been a lot of talk lately about the danger of  Twitter bearing so much of the traffic of micro-blogging, and in the past couple of weeks, this has been demonstrated by it’s being knocked off the Internet under several attacks. I’m more worried about a different problem of large monopolies that have grown on the Internet, and for once, I’ll actually talk about my field as an example, selling used books.

bookshelves      I list on several different book sites. If something happens to any one of them, it doesn’t tip the balance of my survival as a bookseller. Except one, Amazon. As time passes, the percentage of sales generated by Amazon increases, right now for me it’s somewhere around 75%. They are very successful at what they do, getting their name out there, and when people think book nowadays, they think Amazon. Now Amazon is a private profit-making company, and in general I support their right to do pretty much whatever they want. But what social responsibility does such a company have to people who make their living selling through them?

     This applies to Ebay, and social network sites also. They may be a private company, but they function more as a public utility. I’ve know several people who have, rather arbitrarily, been booted off Amazon. There is no real recourse, it is next to impossible to get re-listed with them. I’m sure this is sometimes justified, but Amazon considers the purchasers of their products the customer, not the person paying commissions that sells their product there. And the customer is always right, right? So in any questionable dispute, they tend to side with their ‘customer’, and this has obviously worked well for them. But the bookseller who is denied access to the largest medium by far for selling books is now either pretty much out of business, or hurt badly if they do manage to survive.

      I’m not sure what the right answer is to this problem, as I said earlier they are a private company that has assumed some of the cachet of a public utility. What are their social responsibilities when they wield that much power? I do think they should have a much fairer and accessible review process for getting re-listed. I would love to hear other’s views on this. Just in the interests of disclosure, I’m having no problems with them. In fact, they recently told me not to worry about a claim someone was making for a book order over 9 months old. But I do worry about the future of these private/public entities.