The following is a series of questions posed by Ronald Collins to Adam Winkler on the occasion of the publication of Winkler’s book “We the Corporations: How American Businesses Won Their Civil Rights” (Liveright, 2018, $28.95, pp. 471).
Adam Winkler is a professor of law at the University of California at Los Angeles. His last book was “Gunfight: The Battle over the Right to Bear Arms in America” (W.W. Norton, 2011).
Welcome, Adam, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.
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Question: Your book offers a new wrinkle on the founding of America and the Jamestown story of 1607. Do tell.
Winkler: Americans celebrate the liberty-seeking Pilgrims, but the first permanent English colony in the New World was 13 years earlier in Jamestown, which was a corporate business venture. Indeed, the Virginia Company came to America to make money. The company also introduced democratic reforms, such as the first representative assembly, not in the spirit of popular sovereignty but to pursue profit.
Question: How do dissent in the colonies and the Boston Tea Party of 1773 fit into your narrative?
Winkler: The American Revolution was also in small part a revolt against the world’s most powerful corporation, the East India Company. When the company’s fortunes soured, the British government deemed the corporation too big to fail — and, as part of a massive bailout, gave the company for the first time the right to sell tea in the colonies without American middlemen. The Boston Tea Party was an uprising by merchants who, that night, went out to throw the East India Company’s tea overboard.
Question: The way you tie all the conceptual dots together in your examination of corporations and the Constitution is impressive. One of those dots is Chief Justice John Marshall’s 1809 opinion in Bank of the United States v. Deveaux. Why is that case important?
Winkler: Decided a half century before the first Supreme Court cases on the rights of African Americans and women, Bank of the United States v. Deveaux was the first Supreme Court case on the rights of business corporations under the Constitution. The Bank of the United States, the nation’s largest and richest corporation, won the right to sue under Article III diversity jurisdiction, even though the text refers only to “citizens.” The case, which laid the foundation for two centuries of corporate-rights cases to follow, is one of the neglected landmarks of American constitutional law.
Question: Your book exposes a misleading argument presented to the Supreme Court by a railroad lawyer in the 1885 case San Mateo County v. Southern Pacific Railroad Company. Tell us a little bit about that disingenuous argument and how it played out in that case.
Winkler: In the 1880s, the Southern Pacific Railroad Company launched a remarkable series of what its lawyers called “test cases” — more than 60 in all — to win expansive rights for corporations under the 14th Amendment. Two of those cases made it to the Supreme Court. In the first, the railroad’s lawyer, Roscoe Conkling, who had been one of the drafters of the 14th Amendment, told the justices the provision was written to protect not just the freed slaves but also business corporations. He even produced a musty old journal that he said was a never-published record of the drafting committee’s deliberations. The journal was real, but historians who looked into the case years later quickly realized that the amendment had never been revised in the way Conkling claimed. As Howard Jay Graham, one of the leading historians on the 14th Amendment, concluded, Conkling had engaged in “a deliberate, brazen forgery” to win new rights for corporations.
Question: The following year the Supreme Court decided Santa Clara County v. Southern Pacific Railroad Company. This time the inaccurate work was done by the court’s Reporter of Decisions. Who was that man and how did his handiwork shape the history of American constitutional law?
Winkler: Another of the Southern Pacific’s test cases reached the Supreme Court, but the justices declined to rule on the constitutional question, leading the colorful Justice Stephen Field to complain about the omission in a separate opinion. Then the case took a bizarre turn. The Reporter of Decisions, J.C. Bancroft Davis, included a headnote in the official published version of the opinion saying the court had held corporations were covered by the 14th Amendment. A few years later, Field, who was rumored to carry a gun beneath his robes and remains the only sitting justice ever arrested for a crime (and the charge was murder, no less), seized upon Davis’ headnote. In a majority opinion on a separate issue, he wrote that the court had held that corporations had 14th Amendment rights in the…
Authored by Janine Maureen