What really happened?
Several theories have been advanced. But first, let's look at what the Supreme Court decision actually said in the 1886 Santa Clara case.
What the Court actually said about personhood
The Supreme Court generally tries to stay out of a fight. If a case can be thrown out, or decided on simpler grounds, there's no need to complicate things by issuing a new decision. And in this case, the Court's decision specifically mentioned this: (Emphasis added)
These questions [regarding the Constitutional amendment] belong to a class which this court should not decide unless their determination is essential to the disposal of the case "-
It continued, saying that the question of "unless it's essential to the case" depended on how strong the other defenses were:
Whether the present cases require a decision of them depends upon the soundness of another proposition, upon which the court "-, in view of its conclusions upon other issues, did not deem it necessary to pass.
In other words, because of other issues (who should assess the fences), the Court wasn't even going to consider whether to rule on the Fourteenth Amendment corporate personhood issue.
The decision then identifies the fence issue, and concludes that there's nothing left to decide:
. . . If these positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined "-.As the judgment can be sustained upon this ground, it is not necessary to consider any other questions raised by the pleadings "-
So what actually happened? Why have people said, for all these years, that in 1886 the Waite court in the Santa Clara case decided that corporations were persons under the Fourteenth Amendment?
It turns out that the court said no such thing, and it can't be found in the ruling.
It was in the headnotes!
This apparent contradiction - lawyers and corporations and authors and courts saying for over a hundred years that the Supreme Court had decided corporations are person, when the opinion itself does not say that and in fact explicitly says it didn't rule on constitutional issues - sent me to the law library in the Vermont Supreme Court building. Librarian Paul Donovan found for me Volume 118 of United States Reports: Cases adjudged in The Supreme Court at October Term 1885 and October Term 1886 published in New York in 1886 by Banks & Brothers Publishers, and written by J. C. Bancroft Davis, the Supreme Court's Reporter.
What I found in the book, however, were two pages of text that are missing from the online and official version. They were not part of the decision. They weren't even written by the Supreme Court justices, but were a quick summary-of-the-case commentary by Court Reporter J. C. Bancroft Davis. He wrote commentaries like these for each case, "adding value" to the published book, from which he earned a royalty.
