Thom Hartmann on how corporations acquired “personhood”

This is Part II of a two-part piece on corporate personhood. Part I is here, cleverly disguised as a post about the city of Los Angeles.

The history of “corporate personhood” in the U.S. is short and dramatic. Only two Supreme Court decisions are majorly involved:

The Supreme Court of the United States (Dartmouth College v. Woodward, 1819), recognized corporations as having the same rights as natural persons to contract and to enforce contracts. In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), an insertion into the decision’s headnotes by the clerk, J.C. Bancroft Davis, led many to believe the Supreme Court had recognized corporations as persons for the purposes of the Fourteenth Amendment.[1][2]

The first Supreme Court decision is pretty straightforward — it helped guarantee the enforceability of contracts. It’s the second decision — which ties the rights of corporations to the Fourteenth Amendment — that caused all the trouble (for us of course, not for corporations).

Corporations became “persons” in the modern sense as a result of the decision in Santa Clara County v. Southern Pacific Railroad. But not because of the decision itself, only because of the “headnote,” a preface to the decision. That infamous headnote was:

1. Written after the decision was written, and
2. Written by the clerk of the Court, not the justices.

Note that the clerk who authored the headnote was (ready?) a former railroad president.

Now the segment, in which Thom Hartmann and others discuss this decision on a recent Dylan Ratigan Show. The discussion starts with ways to get corporations out of elections and includes references to 1800s state laws that forbid this.

At 3:02, the discussion turns to the Supreme Court decision that nullified those local laws, Corporate America’s best friend, Santa Clara County v. Southern Pacific Railroad. Watch:

In many ways, that decision starts the modern era. And if outcomes go to extremes, there are only two ways the social conflict created by that decision can be resolved. Neither will be fun to experience.

I will simply say, with Thom Hartmann, that “the country is pregnant with revolution” (6:22 in the clip), and that revolutions can have varied and “interesting” outcomes. Here are three:

■ The Russian Revolution ushered in the dreary Stalinist era of state control and a cowed, cowering populace.

■ The American Revolution replaced the British landed aristocrats with the Virginia landed aristocrats, and temporarily neutered the king (we fixed that though).

■ The French Revolution set the bar forever for “folks gone wild.” It took two Napoleons and a devastating loss to the Germans before the French got a democracy they could keep.

I’m not sure the middle choice is on the menu this time round — I don’t think our current Kochian overlords would ever surrender, at Yorktown or anywhere else. And the other two outcomes — the extremes of Stalinist submission or riots by the desperate — are decidedly unattractive (in my humble estimation, of course).

(Update for clarity: The headnote itself didn’t make corporate personhood law, but the headnote was cited in another court decision. That made the headnote law.)


Gaius Publius is a professional writer living on the West Coast of the United States.

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