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88 W. Va. L. Rev. 173 (1985-86)
Santa Clara Revisited: The Development of Corporate Theory

handle is hein.journals/wvb88 and id is 183 raw text is: SANTA CLARA REVISITED: THE DEVELOPMENT OF CORPORATE THEORY* MORTON J. HoRwITz** I. INTRODUCTION The 1886 decision of the United States Supreme Court in Santa Clara Co. v. Southern Pacific Railroad' has always been puzzling and controversial. From the time Progressive constitutional historians began to mount their attack on the Supreme Court after the Lochner decision in 1905,2 the Santa Clara case became one of the prominent symbols of the subservience of the Supreme Court during the Gilded Age to the interests of big business.3 The Santa Clara case held that a corporation was a person under the four- teenth amendment, and thus entitled to its protection. That holding has been affirmed by the Supreme Court dozens of times, notwithstanding a famous an- nouncement by Justices Black and Douglas in 1949 that recent historical writing had led them to conclude that the Santa Clara case was wrongly decided. In our own time, in First National Bank v. Bellotti5 a five-to-four majority of the Supreme Court treated the Santa Clara case as if it in effect had already decided that cor- porations, like individuals, were entitled to the protection of the first amendment. As far back as 1925, the Supreme Court assumed that the free speech clause was incorporated into the liberty protected by the fourteenth amendment. In Bellotti the majority spoke as if it were simply axiomatic that the Santa Clara case settled the view that the free speech doctrine had been extended to corporations.' For such a momentous decision, the opinion in the Santa Clara case is disquietingly brief-just one short paragraph-and totally without reasons or prece- dent. Indeed, it was made without argument of counsel. It declared: The court does not wish to hear argument on the question whether the provi- sion in the Fourteenth Amendment to the Constitution, which forbids a State to * A version of this Article was delivered at the West Virginia University College of Law as an annual Edward G. Donley Memorial Lecture. © 1986 by the author. ** Charles Warren Professor of the History of American Law, Harvard University. B.A., C.C.N.Y., 1959; Ph.D., Harvard University, 1964; J.D., Harvard University, 1967. Santa Clara County v. Southern Pacific R.R., 118 U.S. 394 (1886). 2 Lochner v. New York, 198 U.S. 45 (1905) (state regulations limiting the hours of employment in bakeries violates the right to freedom of contract guaranteed by U.S. Const. 14th amend.). I See Graham, Justice Field and the Fourteenth Amendment, 52 YALE L.J. 851, 853 (1943); Graham, The Conspiracy Theory of the Fourteenth Amendment, 47 YALE L.J. 371, 403 (1938). See also C. BEARD, CONTEMPORARY AMERICAN HISTORY: 1877-1913 208, 210-13 (1936). ' Connecticut Gen. Life Ins. v. Johnson, 303 U.S. 77 (1938); Wheeling Steel v. Glander, 337 U.S. 562, vacated, U.S. Gypsum Co. v. Glander, 337 U.S. 951, rev'd, 337 U.S. 951 (1949). ' First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), reh'g denied 438 U.S. 907 (1978). 6 Id. at 780 n.15. ' Gitlow v. New York, 268 U.S. 652 (1925). ' Bellotti, 435 U.S. at 778 n.14 (referring to Justice Rehnquist's dissenting opinion at 822). See id. at 780 n.15.

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