Behind Bars

When There Is No Precedent

By Mumia Abu-Jamal

Few Supreme Court cases have evoked the sentiments unleashed by the Citizens United decision. Not since Bush vs. Gore, have we seen so clearly that politics decides cases—not law.

The Citizens United case, which granted First Amendment rights to corporations, did far more than simply decide that corporations have free speech rights (a right, incidentally, that they’ve exercised in billions of ads and commercials for nearly a century.) Citizens United abolished all limits that corporations may spend to support the candidates of their choosing.

What makes it a certainty that politics played the primary role, and not law, is the simple truth that the “precedent” cited by the court as the basis for its decision isn’t precedent at all.

The Supreme Court traces its ideas that corporations are persons back to an 1886 case, Santa Clara City vs. Southern Pacific Railroad. There’s only one problem with that precedent.

It doesn’t say what the court claims it says.

Don’t take my word for it. Read Santa Clara City vs. Southern Pacific Railroad Co., [6S. ct.1132] (1886). In it, you’ll find no discussion about a corporation having the rights of people, and certainly no legal holding to that effect.

The reason is simple. It’s not there.

In the United States produced copy of the case, you’ll find what’s called “Head notes” which make reference to that idea, but the “Head notes” are produced by the court reporter, not any judges of the court.

Yet, it has been cited as precedent for the source of corporate personhood for nearly 125 years—and thanks to Citizens United, might be cited for 100 years more.

I’ve written about this 1886 case in my book, Jailhouse Lawyers, but it’s been so long since I wrote it that I just had to check it again.

So, I did so.

I ordered and re-read Santa Clara City vs. Southern Pacific Railroad Co., [6S. ct.1132] (1886). It’s not there.

Indeed, because the Supreme Court reporter is privately published, they write their own “Head notes.” It’s not even found in the original “Head notes!”

What’s that say about the laws decided by the Court?

They write what they want.

Period., March 28, 2010