In his first State of the Union address, in January 2010, President Obama broke decorum and delivered a most unusual rebuke to the Supreme Court, six of whose members were sitting only feet from his podium.  He was objecting to the Court’s decision only a few days earlier in which it extended corporations’ First Amendment rights to free speech to allow companies to fund their own advertisements for or against political candidates (Citizens United v. Federal Election Commission). In his address the president asserted that, ‘I don’t think American elections should be bankrolled by America’s most powerful interests.’
The Court’s narrow, 5-4 decision overturned its own precedent in a 1990 case, in which it had ruled against such corporate political ads because of ‘the corrosive and distorting effects of immense aggregations of wealth’ on our political processes.
Most careful observers will conclude that the Court got things right the first time. As it turns out, the Citizens United decision was built on both a historical irony and a Supreme Court error that dates back more than 130 years.
The irony is that the decision is rooted in the 14th Amendment to the Constitution, which was adopted in 1868 to confer upon blacks recently freed from slavery the rights of citizenship, due process of law, and equal protection under law.  Less than two decades later, an amendment intended to provide basic citizenship rights to one of American history’s most oppressed populations was used to confer these rights on the most powerful form of private economic organization history had ever seen: the American corporation.
This occurred in the 1886 Supreme Court case, Santa Clara County v. Southern Pacific Railroad Company, which extended the 14th Amendment’s personhood rights to corporations, which are legal creations rather than human persons.
But this is where error enters. In fact the Court did not even address the issue of corporate personhood in its Santa Clara County decision, let alone officially decide the issue. Instead, the Court’s apparent position on the
applicability of the 14th Amendment to corporations was simply asserted in a relatively informal way: it was stated in the summary of the case (known as a ‘headnote’) written by the Court’s reporter. But his summary on this point was not based on the Court’s written decision in the case, where it is not to be found. Instead, he simply quoted a comment the Court’s chief justice made before even oral arguments had been heard in the case, therefore well before the Court deliberated on and decided it:
‘MR. CHIEF JUSTICE WAITE said: “The Court does not wish to hear argument on the question whether the provision in the 14th 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.”‘
On the basis of what was essentially a prefatory statement of informal opinion, rather than a carefully deliberated and argued position on a question of great import, the nation’s highest court had granted corporations the basic rights of citizenship. And so in our political processes, some voices are now very much more equal than others.
