AmericanStudies: December 3, 2019: AmendmentStudying: Santa Clara County and the 14th Amendment

AmericanStudies: December 3, 2019: AmendmentStudying: Santa Clara County and the 14th Amendment

by Ben Railton

On December 6, 1865, the 13^th Amendment to the Constitution was ratified. So this week I’ll AmericanStudy that crucial amendment and four others, leading up to a weekend post on three potential amendments to come!]

On the seemingly offhand sentences through which the Supreme Court radically revised American law, history, and community.

In the spring of 1886, the Supreme Court heard a trio of cases related to California’s taxation of railroad corporations and properties, cases collectively entitled Santa Clara County v. Southern Pacific Railroad (1886). The cases’ specifics hinged on small and (to this AmericanStudier) relatively uninteresting questions of (for example) whether fences adjoining railroad tracks were considered part of those tracks for purposes of land categorization and taxation, and the Court’s decision, written by Justice John Marshall Harlan, similarly focused on those small (if, of course, significant to the affected parties) questions. But it was in a “headnote” to that decision, transcribed by a court reporter and attributed to Chief Justice Morrison Waite, that the Court went far beyond those specific questions and helped change the course of American law and society.

In that headnote, Waite stated, “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 opinion that it does.” The note was not part of the Court’s official decision, but the reporter (J.C. Bancroft Davis, a former railroad company president) included it immediately preceding the decision in his transcription for the official Court record. He did so, it’s worth adding, only after writing to Waite to inquire whether it did indeed represent the Court’s collective perspective; Waite responded that it did, and the sentences became part of the decision’s text and permanent identity from then on. Such a headnote would have no legal standing or precedent—yet nonetheless, by all accounts and all available evidence this informal opinion, that corporations were the equivalent of people under the 14^th Amendment’s “equal protection” clause, became far more impactful than anything in the decision’s formal text.

Santa Clara thus represented a watershed moment in the evolving narrative of “corporate personhood,” one that saw its latest statement during the 2012 presidential primaries, in Mitt Romney’s oft-quoted remark at the Iowa State Fair that “corporations are people, my friend.” Yet I would also argue that Waite’s headnote illustrates another of the Court’s striking powers, one perhaps not part of its original Constitutional mandate but certainly part of how the Court’s role has evolved over the centuries since: the power to revise, to change our national understanding of key issues and questions. It did so here not only in the 14^th Amendment’s language (which focused entirely on “persons” and “citizens”) but also, if far more subtly, on its contexts. The Amendment, after all, was drafted first and foremost to ensure full citizenship and equal protection for freed and former slaves—for persons, that is, who had suffered at the hands of one of America’s most sweeping capitalist and, dare I say it, corporate entities, the slave system. To read that Amendment’s effects to include protection for corporations was thus, to my mind, a stunning revision.