Last week marked the three-year anniversary of Citizens United. Three years after the seismic decision, we’re still seeing new aftershocks. As reported recently by the New York Times, anonymous groups continue to flex their right to “speech” by moving from elections to cabinet appointments and both parties remain geared up for a state of near-permanent campaigning  in order to keep the cash coming in. 

This week, we mark the anniversary of the case that started us down the road to Citizens United, Santa Clara Co. v. Southern Pacific Railroad. The 1886 case itself concerned a fairly narrow issue around a tax on railroads in California, and the Supreme Court declined to rule on broader constitutional issues at the time. Yet, the case would plant one of the seeds in Supreme Court history that would grow into the modern concept of corporate personhood—all without the justices themselves ruling on the issue.  

As Doug Kendall and David Gans explain in A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law…

For most of our nation’s history, Supreme Court doctrine comported with the Constitution’s text and history. In the words of Chief Justice Marshall in the famous Trustees of Dartmouth College v. Woodward case, corporations were “artificial being[s], invisible, intangible, and existing only in the contemplation of the law.” A corporation was a “creature of the law” that did not possess inalienable human rights, but rather “only those properties which the charter of creation confer on it….This was the settled understanding both before the Civil War, and after, when the Fourteenth Amendment was added to the Constitution, requiring states to respect the fundamental rights of all Americans.

This settled understanding was thrown into question in 1886 when the Court’s decision in Santa Clara v. Southern Pacific Railroad Co. appeared to announce that corporations were “persons” within the meaning of the Fourteenth Amendment. The Supreme Court’s actual opinion never reached the constitutional question in the case, but the court reporter – himself a former railroad man – took it upon himself to insert into his published notes Chief Justice Waite’s oral argument statement that the Fourteenth Amendment protects corporations. Through this highly irregular move, bereft of any reasoning or explanation, the idea that corporations were “persons” and had the same rights as individuals – for some purposes at least – was introduced into constitutional law.

Bancroft Davis, the court reporter of the Supreme Court at the time, had formerly served as president of Newburg and New York railway. He inserted the following piece of commentary on the day’s discussion into the head-notes of the case—normally a short, neutral summary of the ruling added for reference purposes:

“Before argument, MR. CHIEF JUSTICE WAITE said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment . . . 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 it does.”

The irony could hardly have been better scripted. Yes: the case that empowered shadowy groups with corporate ties to inject their views inappropriately into the democratic process? It owes it all to one court reporter…with corporate ties…injecting his views inappropriately into the judicial process.