Corporate Personhood’s Long Life

This was a perfectly commonsense approach, recognizing that corporations were persons for some purposes but not for others. They can make contracts and be sued, but cannot marry (yet) or vote.

The legend of corporate personhood as a bogus idea arose out the 1886 case of Santa Clara County v. Southern Pacific Railroad. The Fourteenth Amendment, enacted in 1868, protects the privileges and immunities of all citizens, and provides that no person can be deprived of life, liberty, or property without due process of law or denied the equal protection of the laws. The progressive historians Charles and Mary Beard claimed that this amendment, ostensibly written to protect former slaves, was really concocted to protect business corporations. In their 1927 book The Rise of American Civilization, the Beards alleged that Senators John A. Bingham and Roscoe Conkling planted the term “persons” in addition to “citizens” into the amendment at the behest of “individuals and joint stock companies [who] were appealing for congressional and administrative protection against invidious and discriminating state and local taxes.” In what Yale Law professor John Witt calls “a Da Vinci Code–like story,” progressives surmise that the Court abandoned former slaves and used the Fourteenth Amendment instead to protect big business.

Though this “conspiracy theory” of the Fourteenth Amendment was duly debunked by scholars, particularly Howard Jay Graham, it continues to crop up in popular literature and the media. It was even resurrected on the Court itself in the 1930s. Justice Hugo Black revived it in a 1938 dissent. “I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations,” he said. “A constitutional interpretation that is wrong should not stand. I believe this Court should now overrule previous decisions which interpreted the Fourteenth Amendment to include corporations.”...