Monday, August 15, 2011

Citizens United: A Brief History Lesson

J.C. Bancroft Davis is the most influential American you did not read about in high school history class.

He's  the very source of the corporate takeover of everything in these United States.  It was he (not Mitt Romney, not Antonin Scalia) who invented personhood for corporations. And he was a mere clerk. Granted he was the law clerk for a Chief Justice of the United States, Morrison Waite.  

Davis did his shenanigans in 1886, but the significant background begins in 1857. A black man named Dred Scott, who had lived as a free man in one of the original states, was forced into servitude when he moved to a slave state.  He sued for his freedom but the U.S. Supreme Court, under the leadership of a slave-owner, Chief Justice Robert B. Taney, held that no slave or descendant of a slave could be a U.S. citizen and hence Scott had no standing to sue in federal court.

Years later the great Justice John Marshall Harlan would call the Dred Scott decision "pernicious" and another great  justice, Charles Evans Hughes, would call it a "self-inflicted wound" on the court.  Nonetheless, no subsequent court ever overruled Dred Scott v. Sandford. It was negated in 1865 by the ratification of the 13th Amendment, which made slavery illegal in the United States, and of the 14th Amendment , whose First Article declared:

 "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  This was intended as the final nail in the coffin of the pernicious Dred Scott decision.

The 14th Amendment was drafted by a joint committee of 15 members of the House and Senate.  Sen. Roscoe Conkling was a member of the joint committee.  Upon leaving the Senate he became a railroad lawyer.  He was as well-connected in Washington as he was absent scruples, for now he declared that it had been the original intent of the committee that corporations should be "persons" for purposes of this Amendment. In 1882 he made this very argument as an expert witness in a federal court case that reached the Supreme Court, so that Chief Justice Waite and the associate justices were familiar with it. In 1886, a case Conkling argued, and lost, in California  was fast-tracked on appeal to the Waite Supreme Court.  It was a mundane matter involving state taxes and it was called Santa Clara County v. Southern Pacific Railroad. By this time Conkling had magically turned up a journal he said he had kept during the joint committee sessions.  Its notes supported the corporate personhood thesis he had invented four years earlier.  It was later determined to be a forgery.

But now, even before arguments began in Santa Clara v. Southern Pacific, Chief Justice Waite told attorneys for both sides, somewhat out of the blue, that he would not entertain arguments about whether corporations were persons under the 14th Amendment because the court already was of the opinion that they were. This seems to have impressed the chief justice's clerk, Mr. Davis, perhaps because he was himself a shareholder and member of the board of directors of a railroad.
The case proceded with no mention of corporate personhood, nor was the subject addressed in the majority decision.  When it came time for Mr. Davis to do his most important clerical chore, writing the caption and "headnotes" (or summary) of the decision for publication in the official record, he was moved to write an inquiry to the Chief Justice:

"I have a memorandum in the California Cases
Santa Clara County
Southern Pacific &c &c
as follows:

In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in
these suits. All the Judges were of opinion that it does. Please let me know whether I correctly caught your words and oblige."

This was the Chief Justice's reply:

"I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we 
avoided meeting the constitutional question in the decision."

(Emphasis mine.)

On that basis, and that alone, railroad board member Davis, a mere clerk of court at the time, wrote as the very first sentence of his syllabus:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth 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.

And this is the "legal precedent" on which Scalia, Roberts, Alioto, Kennedy and Thomas based their infamous Citizens United decision, which puts every American citizen under the corporate thumb; which enabled the Koch Brothers to buy the Wisconsin recall elections for Republican incumbents, and which will put virtually all future state and federal office-holders in corporate servitude.

Thank you, J.C. Bancroft Davis, Great American.


The 14th Amendment also establishes the method of determining the number of members of the U.S. House of Representatives:

"2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. . . .

Thus little ol' Delaware, with fewer than a million persons in the 2010 census, is entitled to only one congressman. 


Delaware is home to nearly three million U.S. corporations: by incorporating there, these corporations have declared Delaware to be their "legal domicile."  These corporations are persons.  They are entitled to representation!

If you gave Delaware the seats its corporate persons entitle it to, the state would have six representatives in Congress.

If I were the governor of Delaware. I'd sue for my rightful representation.

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