Editing Equal Protection Clause (section)

==Rights of Corporations==
In the decades after ratification of the Fourteenth Amendment, the vast majority of Supreme Court cases interpreting the Fourteenth Amendment dealt with the rights of corporations, not with the rights of African Americans. In the period 1868–1912 (from ratification of the Fourteenth Amendment to the first known published count by a scholar), the Supreme Court interpreted the Fourteenth Amendment in 312 cases dealing with the rights of corporations but in only 28 cases dealing with the rights of African Americans. Thus, the Fourteenth Amendment was used primarily by corporations to attack laws that regulated corporations, not to protect the formerly enslaved people from racial discrimination.<ref>Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) p. xv</ref> Granting rights under the Equal Protection Clause of the Fourteenth Amendment to business corporations was introduced into Supreme Court jurisprudence through a series of sleights of hands. [[Roscoe Conkling]], a skillful lawyer and former powerful politician who had served as a member of the [[United States Congressional Joint Committee on Reconstruction]], which had drafted the Fourteenth Amendment, was the lawyer who argued an important case known as ''San Mateo County v. Southern Pacific Railroad'' before the Supreme Court in 1882. In this case, the issue was whether corporations are "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.<ref>However, the legal concept of [[corporate personhood]] predates the Fourteenth Amendment. See ''Providence Bank v. Billings'', {{ussc|29|514|1830}}, in which Chief Justice Marshall wrote: "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." Nevertheless, the concept of corporate personhood remains controversial. See {{cite journal |last=Mayer |first=Carl J. |year=1990 |title=Personalizing the Impersonal: Corporations and the Bill of Rights |journal=Hastings Law Journal |volume=41 |page=577 |issn=0017-8322 |url=http://reclaimdemocracy.org/personhood/mayer_personalizing.html |access-date=2007-02-24 |archive-date=2007-02-06 |archive-url=https://web.archive.org/web/20070206185756/http://www.reclaimdemocracy.org/personhood/mayer_personalizing.html  }}</ref> Conkling argued that corporations were included in the meaning of the term person and thus entitled to such rights. He told the Court that he, as a member of the Committee that drafted this amendment to the Constitutional, knew that this is what the Committee had intended. Legal historians in the 20th Century examined the history of the drafting of the Fourteenth Amendment and found that Conkling had fabricated the notion that the Committee had intended the term "person" of the Fourteenth Amendment to encompass corporations.<ref>Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 128-136</ref>  This ''San Mateo'' case was settled by the parties without the Supreme Court issuing an opinion however the Court's misunderstanding of the intention of the Amendment's drafters that had been created by Conkling's likely deliberate deception was never corrected at the time.

A second fraud occurred a few years later in the case of ''Santa Clara v. Southern Pacific Railroad'', which left a written legacy of corporate rights under the Fourteenth Amendment. [[J. C. Bancroft Davis]], an attorney and the [[Reporter of Decisions of the Supreme Court of the United States]], drafted the "syllabus" (summary) of Supreme Court decisions and the "headnotes" that summarized key points of law held by the Court. These were published before each case as part of the official court publication communicating the law of the land as held by the Supreme Court. A headnote that Davis as court reporter published immediately preceding the court opinion in Santa Clara case stated:

{{quote|"The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment…, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws."}}

Davis added before the opinion of the Court: 

{{quote|"MR. CHIEF JUSTICE WAITE said: 'The Court does not wish to hear argument on the question of 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.'"}}
In fact, the Supreme Court decided the case on narrower grounds and had specifically avoided this Constitutional issue.<ref>Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 150-152</ref><ref>''[http://supreme.justia.com/us/118/394/case.html Santa Clara County v. Southern Pacific Railroad]'', {{ussc|118|394|1886}}. John C. Bancroft was a former railway company president. In the summary of the case Bancroft wrote that the Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396.  Chief Justice [[Morrison Waite]] announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations: "We are all of the opinion that it does." The background and developments from this utterance are treated in H. Graham, Everyman's Constitution--Historical Essays on the Fourteenth Amendment, the ''Conspiracy Theory,'' and American Constitutionalism (1968), chs. 9, 10, and pp. 566-84. Justice [[Hugo Black]], in ''Connecticut General Life Ins. Co. v. Johnson'', 303 U.S. 77, 85 (1938), and Justice [[William O. Douglas]], in ''[[Wheeling Steel Corp. v. Glander]]'', 337 U.S. 562, 576 (1949), have disagreed that corporations are persons for equal protection purposes.</ref>

===The Supreme Court holding===
Supreme Court Justice Stephen Field seized on this deceptive and incorrect published summary by the court reporter Davis in ''Santa Clara v. Southern Pacific Railroad'' and cited that case as precedent in the 1889 case ''Minneapolis & St. Louis Railway Company v. Beckwith'' in support of the proposition that corporations are entitled to equal protection of the law within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Writing the opinion for the Court in ''Minneapolis & St. Louis Railway Company v. Beckwith'', Justice Field reasoned that a corporation is an association of its human shareholders and thus has rights under the Fourteenth Amendment just as the members of the association.<ref>Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 154-156. Justice Field was a friend of railroad magnate [[Leland Stanford]], owner of [[Southern Pacific Railroad]], the corporation that had filed these lawsuits, and, as a Supreme Court justice and federal appellate judge for years, had a pro-corporationist agenda. (Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 140-143.) Justice Field must have known that in the ''Santa Clara'' case the Supreme Court explicitly declined to address the Constitutional issue because, in a companion case to ''Santa Clara'', Justice Field had urged the Court to address precisely this issue by endorsing such corporate rights on Fourteenth Amendment grounds, and he harshly criticized his fellow justices for failing to do so. (Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 156-157)</ref>

In this Supreme Court case ''Minneapolis & St. Louis Railway Company v. Beckwith'', Justice Field, writing for the Court, thus took this point as established Constitutional law. In the decades that followed, the Supreme Court often continued to cite and to rely on ''Santa Clara v. Southern Pacific Railroad'' as established precedent that the Fourteenth Amendment guaranteed equal protection of the law and due process rights for corporations, even though in the Santa Clara case the Supreme Court held or stated no such thing.<ref>Adam Winkler, "We the Corporations, How American Businesses Won Their Corporate Rights" (New York: Liveright Publishing Corporation, 2018) pp. 156-157</ref> In the late 19th and early 20th centuries, the clause was used to strike down numerous statutes applying to corporations. Since the [[New Deal]], however, such invalidations have been rare.<ref>See {{cite journal |last=Currie |first=David P. |year=1987 |title=The Constitution in the Supreme Court: The New Deal, 1931–1940 |journal=University of Chicago Law Review |volume=54 |pages=504–555 |doi=10.2307/1599798 |issue=2 |jstor=1599798|url=https://chicagounbound.uchicago.edu/journal_articles/3828 |type=Submitted manuscript |url-access=subscription }}</ref>