Santa Clara County v. Southern Pacific Railroad: The Corporate Personhood Precedent That Never Was

In what would become one of the most consequential non-rulings in American legal history, a court reporter’s headnote to Santa Clara County v. Southern Pacific Railroad established the foundation for corporate personhood without the Supreme Court ever deciding the issue. Before oral arguments, Chief Justice Morrison Waite stated the Court would not hear arguments on whether the Fourteenth Amendment’s Equal Protection Clause applies to corporations because “we are all of opinion that it does.” Court Reporter J.C. Bancroft Davis—a former railroad president—included this statement in the case headnote, despite it never appearing in Justice Harlan’s majority opinion, which decided the railroad tax case on narrow technical grounds. This “reporter-made law” has been cited in subsequent decisions for over a century as establishing that corporations are “persons” entitled to constitutional protections originally intended for freed slaves. Legal scholars have called this an extraordinary violation of stare decisis, where a statement “neither part of the ruling of the Court, nor part of the opinion” became binding precedent. Justices Douglas and Black later noted in dissent that corporate personhood was decided “without argument or discussion.” Between 1868 and 1912, corporations brought 312 of 604 Fourteenth Amendment cases and won most, while only 28 cases involved African Americans—most of whom lost. This headnote laid the foundation for Citizens United v. FEC (2010) and the expansion of corporate constitutional rights at the expense of democratic governance.