“Corporate personhood” is the legal concept that lets modern corporations influence elections — and these days, even vote. Last week, I wrote about Hawaii’s effort to land a knockout punch against this slippery-sloped set of privileges.

As I was, some of you may already have been moderately aware that corporate personhood achieved its critical toehold in U.S. law thanks to the Supreme Court’s ruling in the 1886 consolidated case including Santa Clara County vs. Southern Pacific Railway Company.

Except it didn’t.

Famously Off-Topic
It’s true, the commonly held validity of corporate personhood got its start because of the case, but the concept is entirely absent from the decision. In fact, here’s what then-Chief Justice Morrison Waite had to say when laying the parameters for the plaintiffs’ day in Court:

“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 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 the opinion that it does.”

The railroads had argued personhood in their written briefs. Mr. Chief Justice specifically waved off the matter for the purposes of this case.

How do we know that he said the above? Because that excerpt was part of the case’s “headnote” written by J.C. Bancroft Davis. Such summaries were written by a Reporter of Decisions after the ruling was issued, for attorneys’ convenience.

Mr. Davis even ran a mention of this detail by Chief Justice Waite before the headnote was published. In what must be one of the more consequential moments of fleeting carelessness in U.S. legal history, Waite responded:

“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.”

On that note, let’s pause for one of my favorite instances of singing about not talking about it.

Smuggled Into History
Davis kept the reference in, and corporate America subsequently used Waite’s mention of what he didn’t want to hear about as a Trojan horse to conflate a person’s rights and reasonable protections for a business, ever to ownership’s advantage.

When court decisions go against our preferences, we live with it and look for legal ways to change or combat them. That’s part of life in a civilized society. This pivotal text, on the other hand, represented:

A topic expressly omitted from the plaintiff’s and defendant’s oral arguments;
A topic not addressed in the Court’s decision;
An informal collective opinion mentioned only in what amounted to a trade synopsis of the case; and was, after all,
Not even written by a judge.

That’s not a legal finding. That’s not precedent. Sure, that group of judges may have all subscribed to that view. But officially, that perspective was as relevant as if a judge in a restaurant wage-theft case mentioned at a pre-trial hearing that he thinks a taco is a sandwich.

Corporate Media, Indeed
So you might be wondering: Who was this court reporter who took the liberty of including an unsettled, highly pro-railroad constitutional interpretation in the wrapup of a case that didn’t even debate the question?

By this time, Mr. Davis had enjoyed a fairly interesting career, including public service in both the judiciary and in international relations. But as noted by others including Thom Hartmann (who I see wrote a 2002 book on the evolution of corporate personhood), one entry on Davis’s job history sticks out:

Davis was previously the president of the Newburgh and New York Railway.

Here’s one for the guys at the other end of the 19th-century railroad org chart.