[Morton Mintz (Nieman '64) and a Washington Post reporter for decades, is a senior adviser to the Nieman Watchdog project.]

Judge Robert H. Bork, President Reagan's failed Supreme Court nominee, famously denounced Roe v. Wade as "a wholly unjustified usurpation of state legislative authority." For the moment, at least, let's assume he was correct. Then what about the Court's pronouncement more than a century ago that a private corporation—a paper entity that cannot wear a uniform, bleed, vote, be sent to prison or the death chamber, and that may give tens of millions of dollars to politicians during a possible lifespan of hundreds of years—is a "person" that cannot be denied "the equal protection of the laws"? Was that pronouncement also "a wholly unjustified usurpation of state legislative authority"?

These would surely be appropriate and challenging questions for Judge John G. Roberts, Jr., President Bush's Supreme Court nominee, when he comes before the Senate Judiciary Committee. But don't count on any such questions being asked. That's because Democratic and Republican committee members alike, sensitized to corporate power, have for decades avoided putting them to any one of hundreds of judicial nominees.

The Fourteenth Amendment to the Constitution was ratified in 1868, soon after the end of the Civil War. It declares that no state shall 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." The "person" Congress and the ratifying states had in mind—the human being in need of equal protection, particularly in the states of the old Confederacy—was the newly-freed slave. Nothing in either the text or the legislative history of the Amendment suggests otherwise.

The radical change that transformed the soulless entity into a person began in California, where, understandably, state law allowed taxation of the property of a corporation at a higher rate than the property of a living, breathing human. Santa Clara County taxed the property of the Southern Pacific Railroad differently. Southern Pacific fought back, and the dispute evolved into a case that reached the Supreme Court.

Chief Justice Morrison R. Waite and all of the Associate Justices chose not even to hear oral argument. Instead, in 1886—a mere 18 years after ratification of the Fourteenth Amendment—Waite simply announced: "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 any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

Here is how the stunningly different befores-and-afters were summarized by Thom Hartmann, a Project Censored-award-winning, best-selling author, and the host of a nationally syndicated progressive daily radio talk show, at thomhartmann.com:

Rights and Privileges

Before 1886: Only humans were "endowed by their creator with certain inalienable rights" and those human rights included the right to free speech, the right to privacy, the right to silence in the face of accusation, and the right to live free of discrimination or slavery.

After 1886: While to this day unions, churches, governments, and small unincorporated businesses do not have "human rights" (but only privileges humans give them), corporations alone have moved into the category with humans as claiming rights instead of just privileges.

Politics

Before 1886: In many states, it was a felony for corporations to give money to politicians, political parties, or try to influence elections: "They can't vote, so what are they doing involved in politics?!"

After 1886: Corporations claimed the human right of free speech, expanded that to mean the unlimited right to put corporate money into politics, and have thus taken control of our major political parties and politicians. [The Tillman Act of 1907 prohibited corporations and nationally chartered (interstate) banks from making direct financial contributions to federal candidates. But the law was rendered ineffectual by weak enforcement mechanisms; indirect contributions, particularly via PACs; contributions by corporate executives and employees, and a 1978 Supreme Court decision invalidating—on First Amendment grounds—a Massachusetts criminal statute forbidding banks and businesses from making certain expenditures intended to influence the vote on referendum proposals.]

Business

Before 1886: States and local communities had laws to protect and nurture entrepreneurs and local businesses, and to keep out companies that had been convicted of crimes.

After 1886: Multi-state corporations claimed such laws were "discrimination" under the 14th Amendment (passed to free the slaves) and got such laws struck down; local communities can no longer stop a predatory corporation.

War

Before 1886: Government, elected by and for "We, The People," made decisions about how armies would be equipped and, based on the will of the general populace, if and when we would go to war. Prior to WWII there were no permanent military manufacturing companies of significant size.

After 1886: Military contractors grew to enormous size as a result of WWII and a permanent arms industry came into being, what Dwight Eisenhower called "the military/industrial complex." It now lobbies government to buy its products and use them in wars around the world.

Regulation

Before 1886: Corporations had to submit to the scrutiny of the representatives of "We, The People," our elected government.

After 1886: Corporations have claimed 4th Amendment human right to privacy and used it to keep out OSHA, EPA, and to hide crimes.

Purpose

Before 1886: Corporations were chartered for a single purpose, had to also serve the public good, and had fixed/limited life spans.

After 1886: Corporations lobbied states to change corporate charter laws to eliminate "public good" provisions from charters, to allow multiple purposes, and to exist forever.

Ownership

Before 1886: Just as human persons couldn't own other persons, corporations couldn't own the stock of other corporations (mergers and acquisitions were banned).

After 1886: Corporations claim the human right to economic activity free of regulatory restraint, and the still-banned-for-humans right to own others of their own kind.

The late Justice Hugo L. Black was scathing about the Waite court's pronouncement. "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection," he wrote in a dissent in Connecticut General Life Insurance Co. v. Johnson (1938). He continued:

Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations. The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. The Fourteenth Amendment followed the freedom of a race from slavery....Corporations have neither race nor color.

The contrast between the Court's handling of Santa Clara County v. Southern Pacific Railroad and its handling of Roe v. Wade nearly 90 years later is stark. The Roe justices were fully briefed. They heard oral argument. They long deliberated. In the end, they decided—among other things--that in the first trimester of pregnancy a fetus is not a "person" within the meaning of the Fourteenth Amendment.

For purposes of Judge Roberts's appearance before Senate Judiciary, it doesn't matter whether either Santa Clara or Roe was rightly or wrongly decided. What does matter is whether he will be asked not only whether Santa Clara was "a wholly unjustified usurpation of state legislative authority," but additional questions such as these:

§ Can you cite anything in the original intent of the Framers of the Fourteenth Amendment, in its language, or in its history to justify Chief Justice Waite's proclamation that a corporation is a person owed the equal protection of the laws?

§ Was Chief Justice Waite's proclamation radical?

§ The corporation is owned by its shareholders but is at the same time a legal person. Is the corporation then a slave, in violation of the Thirteenth Amendment's prohibition of slavery?

§ Corporations have freedom of speech. Do they also have freedom of religion? Could you explain why people who call themselves conservatives mention Santa Clara rarely if ever?