It just didn't seem to add up.
Looking over Waite's personal papers, Graham found a note from J. C. Bancroft Davis, the Supreme Court's Reporter, to Waite. At one point in the arguments, Waite had apparently told Sanderson to get beyond his arguments that corporations are persons and get to the point of the Santa Clara County tax case. Court reporter Davis, apparently seeking to clarify that, wrote to Waite:
In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of opinion that it does.
Please let me know whether I correctly caught your words and oblige.
Waite wrote back:
I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision. (Emphasis added.)
Graham notes in an article first published in the Vanderbilt Law Review that Waite explicitly pointed out to court reporter Davis that the constitutional question of corporate personhood was not included in their decision.
According to Graham, Waite was instead saying "something to the effect of, "The Court does not wish to hear further argument on whether the Fourteenth Amendment applies to these corporations. That point was elaborately covered in 1882 [in the San Mateo case], and has been re-covered in your briefs. We all presently are clear enough there. Our doubts run rather to the substance [of the case ... the fence issue]. Assume accordingly, as we do, that your clients are persons under the Equal Protection Clause. Take the cases on from there, clarifying the California statutes, the application thereof, and the merits.'"
In my opinion, Waite was saying something to the effect of, "Every judge and lawyer knows that corporations are persons of the artificial sort - corporations have historically been referred to as "artificial persons,' and so to the extent that the Fourteenth Amendment covers them it does so on a corporation-to-corporation basis. But we didn't rule on the railroad's claim that corporations should have rights equal to human persons under the Fourteenth Amendment, so I leave it up to you if you're going to mention the debates or not."
Another legal scholar and author, C. Peter Magrath, was going through Waite's papers at the same time as Graham for the biography he published in 1963 titled Morrison R. Waite: Triumph of Character. In his book, he notes the above exchange and then says, "In other words, to the Reporter fell the decision which enshrined the declaration in the United States Reports. Had Davis left it out, Santa Clara County v. Southern Pac. R. Co. would have been lost to history among thousands of uninteresting tax cases."
It was all, at the very best, a mistake by a court reporter. There never was a decision on corporate personhood.
"So here at last," writes Graham, --now for then,' is that long-delayed birth certificate, the reason this seemingly momentous step never was justified by formal opinion." He adds, in a wry note for a legal scholar, "Think, in this instance too, what the United States might have been spared had events taken a slightly different turn."
Graham's conspiracy theory
In Everyman's Constitution, Howard Jay Graham suggests that if there was an error made on the part of the court Reporter J. C. Bancroft Davis - as the record seems to show was clear - it was probably the result of efforts by Supreme Court Justice Stephen J. Field.
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