Okay, let me just lay this out. Back in 1885, January 26th, 1885, Delphin Delmas was the lawyer who had been hired by the county of Santa Clara to argue this case before the Supreme Court. Santa Clara County vs. Southern Pacific Railroad. Prior to that, he had for free on behalf of the county, argued a case which actually led to the saving of the redwoods. There literally would be no redwoods left in the United States were it not for Delphin Delmas, this lawyer. An amazing man. And early around 1906 or 1907, he defended a famous murder case, a movie was made out of it called “The Lady in the Red Swing”. He’s got a very colorful history, this guy.
But in any case, before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations.
And so Delphin Delmas, on January 26th, 1885, this is in my book, “Unequal Protection”. In fact, I think it’s the only place that it’s ever been published, because I actually found the notes, Delphin Delmas’s own notes of his arguments before the Supreme Court. This is what he said before the court. He said, “The defendant claims [that the state’s taxation policy]…” this had to do with two different counties taxing the railroad at two different rates, and they said, “that violates the portion of the 14th amendment which provides that no state shall be denied any person within its jurisdiction equal protection of the laws.” He said, “The shield behind which [the Southern Pacific Railroad] attacks the Constitution and laws of California is the Fourteenth Amendment. It argues that the amendment guarantees to every person within the jurisdiction of the State the equal protection of the laws; that a corporation is a person; that, therefore, it must receive the same protection as that accorded to all other persons in like circumstances. …
To my mind, the fallacy, if I may be permitted so to term it, of the argument lies in the assumption that corporations are entitled to be governed by the laws that are applicable to natural persons. That, it is said, results from the fact that corporations are [artificial] persons, and that the last clause of the Fourteenth Amendment refers to all persons without distinction.
The defendant has been at pains to show that corporations are persons, and that being such they are entitled to the protection of the Fourteenth Amendment. … The question is, Does that amendment place corporations on a footing of equality with individuals?”
And then he goes on to the whole thing he says, “When the law says, ‘Any person being of sound mind and of the age of discretion may make a will,’ or ‘any person having arrived at the age of majority may marry,’ I presume the most ardent advocate of equality of protection would hardly contend that corporations must enjoy the right of testamentary disposition or of contracting matrimony.” And he goes on from there, basically pointing out that people and corporations are completely different things.
Here is the big problem. If this court rules that corporations can participate in political discourse, right now we have laws that prohibit, remember the whole Al Gore, the Buddhist temple thing, how some of that money was coming from off-shore. Turned out it wasn’t, but you know, it got the right wingers pretty hysterical for a while.
We have corporations in the United States that are owned in large part by entities that are not in the United States. In fact some of them are owned by the Government of Communist China, large chunks of their stock. About 20% of the members of the boards of directors of the hundred largest corporations in America, the Fortune 100 companies, about 20% of their boards are non-US citizens. We’re talking transnational corporations. Their interests are not the same of those as a citizen.
And yet it looks like our Supreme Court is about to give them the rights that you and I have to political free speech. Because it is going to assert, and it has asserted over the years, in this case that I’m talking about, Santa Clara County VS. Southern Pacific Railroad, actually the court did not rule that corporations were persons, but they have been claiming that ever since then because the clerk of the court, John Chandler Bancroft Davis, former President of the Newburg and New York railroad, wrote into a head note – the commentary on the case – which has no legal standing, a quote from the chief justice who had since died, he was dying of congestive heart failure during the year the proceedings happened, he died the next year. This was published two years later. He wrote that the chief justice said, “a corporation is a person and therefore entitled to protection under the 14th amendment.” When nobody knows if the chief justice said that. Even if he did, it doesn’t matter. It’s not the case. So what this is going to come down to, is whether corporations have the rights of persons in the United States, whether they have free speech rights and, this is just a huge, huge issue.
