I said that I understood that (it was dawning on me by then), and that I was hoping to have some remedies for that mistake in my book, but just out of curiosity, "What is the legal status of headnotes?"
She said, "Headnotes are not precedential," confirming what Jim Ritvo had told me. They are not the precedent. They are not the law. They're just a comment, with no legal status.
So how did it come that Court Reporter J.C. Bancroft Davis wrote that corporations are persons in his headnotes? And why have a hundred years of American - and, now, worldwide - law been based on them?
Here are the main theories that have been advanced regarding what happened:
The Republican conspiracy theory that empowered FDR
In the early 1930s, the stock market had collapsed and the world was beginning a long and dark slide into the Great Depression and eventually to World War II. Millions were out of work in the United States, and the questions on many people's mind were, "Why did this happen? Who is responsible?"
The teetering towers of wealth created by American industrialists during the late 1800s and early 1900s were largely thought to have contributed to or caused the stock market crash and ensuing Depression. In less than a hundred years, corporations had gone from being an obscure legal fiction used to establish colleges and trading companies, to standing as the single most powerful force in American politics.
Many working people felt that corporations had seized control of the political agenda, capturing Senators, Congressmen, the Supreme Court, and even recent Presidents in the magnetic force of their great wealth. Proof of this takeover could be found in the Supreme Court decisions of the 1908-1914 era, when the Supreme Court, often citing corporate personhood, struck down minimum wage laws, workmen's compensation laws, utility regulation, and child labor laws - every kind of law that a people might institute to protect its citizenry from abuses.
Unions and union members were the victims of violence from private corporate armies and had been declared "criminal conspiracies" by both business leaders and politicians. It seemed that corporations had staged a coup, seizing the lives of American workers - the majority of voters - as well as the elected officials who were supposed to represent them. And this was in direct contradiction of the spirit expressed by the founders of the country.
It was in this milieu that an American history book first published in 1927, but largely ignored, suddenly became a hot topic. In The Rise of American Civilization, Columbia history professor Charles Beard and woman's suffrage movement activist Mary Beard suggested that the rise of corporations on the American landscape was the result of a grand conspiracy that reached from the boardrooms of the nation's railroads all the way to the Supreme Court.
They fingered two Republicans: former Senator (and railroad lawyer) Roscoe Conkling; and former Congressman (and railroad lawyer) John A. Bingham. The theory, in short form, was that Conkling, when he was part of the Senate committee that wrote the Fourteenth Amendment back in 1868, had intentionally inserted the word "person" instead of the correct legal phrase "natural person" to describe who would get the protections of the Amendment. Bingham similarly worked in the House of Representatives to get the language passed.
Once that time bomb was put into place, Conkling and Bingham left elective office to join in litigating on behalf of the railroads, with the goal of exploding their carefully worded amendment in the face of the Supreme Court.
Thus "Republican lawmakers," the Beards said, conspired in advance to give full human constitutional rights to corporate legal fictions. "By a few words skillfully chosen," they wrote, "every act of every state and local government which touched adversely the rights of [corporate] persons and property was made subject to review and liable to annulment by the Supreme Court at Washington."
Oddly, this conspiracy theory was widely accepted because the supposed conspirators themselves had said, very publicly, "We did it!"
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