Recently I’ve again become upset over the 125 year old Supreme Court case Santa Clara County v. Southern Pacific Railroad. The reason it is on my mind is the 5-4 SCOTUS decision (Citizens United v. Federal Election Commission) that ruled that portions of McCain / Feingold and other campaign finance reform laws were unconstitutional. The court also overturned several of its own previous rulings. The portions ruled unconstitutional were related to prohibitions enacted by Congress that prevented corporate and union funding of campaign ads for (or against) any candidate for federal office. The reason the laws were ruled unconstitutional was on the basis of First Amendment speech rights and equal protection under the law.

Santa Clara County was a case before SCOTUS back in the 1880s. I don’t even remember what the case is about. Okay, I do now since I just looked it up on Wikipedia. It was a tax case between the parties. The case isn’t known, however, for its finding. It’s known for a passing comment (obiter dictum in fancy speak) in the opinion that stated that the court believed that the Fourteenth Amendment applied to corporations. The Fourteenth Amendment was enacted in the 1860s after the Civil War and is one of the most fundamental changes to the Constitution since its inception. Since the Fourteenth Amendment says nothing about corporations, and only mentions “person” and “persons” in the text, the passing comment in Santa Clara County has formed the legal basis for considering, for all practical purposes, a corporation to equal to a person. While the Fourteenth does many things (including granting citizenship to blacks), the convergence of Santa Clara County and Citizens United comes from Fourteenth’s Equal Protection Clause. In essence the Equal Protection Clause is just that – it prohibits the government from enacting laws that treat one “person” different from another; if a law is applied then it must be applied equally amongst all “persons.”

In Citizens United the fact that a corporation is a person, and the fact that the campaign finance laws treated corporations differently from a natural person, the court held that the laws violated corporation and union rights to equal protection under the law. Citizens United is a landmark ruling. The bottom line is that corporations and unions are now free to spend unlimited funds on ads backing (or attacking) any candidate for federal office. It’s also very likely – this time due to the Fourteenth’s Due Process Clause and Incorporation – that any state laws that prohibit such financing for state office are also unconstitutional.

I won’t go into the politics of the Citizens United ruling other than stating that I think we need less money in politics not more. I also won’t get into the judicial restraint and stare decisis issues that the ruling raised. I respect the decision of the court.

My issue here, as it always has been, is with the very idea of corporate personhood. Santa Clara County is not precedent since the reference to corporate personhood was in passing and not part of the decision. There is no indication that the authors of the Fourteenth intended for “persons” to include corporations. The Fourteenth came about in an attempt to protect the weak and powerless from the state and federal government. Nobody can question that all but the smallest corporations hava significantly more power (read: money) than the average citizen. There is limited support for corporate personhood in other common law nations. Most other common law nations, including in British law, find a more limited form of protection for corporations that provide certain financial protections for shareholders (the corporate veil) while not granting the corporation full personhood. In the US, the “strict constructionist” view should hold that corporations are not persons since there is no precedent, common law legal foundation, or contemporaneous (to the 14th) writing – let alone Constitutional language – that supports corporate personhood.

So where does the case for corporate personhood come from? A stare decisis claim seems weak considering that Santa Clara County is not precedent and the court is not bound by it. A stare decisis claim also falls flat in Citizens United as the court gave short shrift to stare decisis when the decision overruled two of its previous rulings. What benefit to the nation does corporate personhood have, especially in the context of campaign finance? The government has a legitimate interest in ensuring that elections are fair and untainted. One has to be intellectually dishonest to believe that money doesn’t affect elections and, ultimately, legislation. If freedom of speech is the foundation for the marketplace of ideas, how does the nation benefit by drowning out the individual voices of actual, natural persons with unending and unlimited corporate speech?

My assertion is that corporate personhood is an absurdity. And anything that follows from corporate personhood is also flawed. What do you think? Should corporations be treated just as natural persons with all the rights and protections that the average citizen has?