Wheeling Steel Corporation v. Glander/Dissent Douglas

by William O. Douglas

United States Supreme Court

337 U.S. 562

Wheeling Steel Corporation  v.  Glander

 Argued: March 29, 30, 1949. --- Decided: June 20, 1949

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

It has been implicit in all of our decisions since 1886 that a corporation is a 'person' within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Co. v. South. Pacific R. Co., 118 U.S. 394, 396, 6 S.Ct. 1132, 30 L.Ed. 118, so held. The Court was cryptic in its decision. It was so sure of its ground that it wrote no opinion on the point, Chief Justice Waite announcing from the bench:

'The court does not wish to hear arrgument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.'

There was no history, logic, or reason given to support that view. Nor was the result so obvious that exposition was unnecessary.

The Fourteenth Amendment became a part of the Constitution in 1868. In 1871 a corporation claimed that Louisiana had imposed on it a tax that violated the Equal Protection Clause of the new Amendment. Mr. Justice Woods (then Circuit Judge) held that 'person' as there used did not include a corporation and added, 'This construction of the section is strengthened by the history of the submission by congress, and the adoption by the states of the 14th amendment so fresh in all minds of as to need no rehearsal.' Insurance Co. v. New Orleans, Fed.Cas.No 7,052, 1 Woods 85, 88.

What was obvious to Mr. Justice Woods in 1871 was still plain to the Court in 1873. Mr. Justice Miller in the Slaughter House Cases, 16 Wall. 36, 71, 21 L.Ed. 394, adverted to events 'almost too recent to be called history' to show that the purpose of the Amendment was to protect human rights-primarily the rights of a race which had just won its freedom. And as respects the Equal Protection Clause he stated, 'The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.' 16 Wall. at page 81, 21 L.Ed. 394.

Moreover what was clear to these earlier judges was apparently plain to the people who voted to make the Fourteenth Amendment a part of our Constitution. For as Mr. Justice Black pointed out in his dissent in Connecticut General Co. v. Johnson, 303 U.S. 77, 87, 58 S.Ct. 436, 441, 82 L.Ed. 873, the submission of the Amendment to the people was on the basis that it protected human beings. There was no suggestion in its submission that it was designed to put negroes and corporations into one class and so dilute the police power of the States over corporate affairs. Arthur Twining Hadley once wrote that 'The Fourteenth Amendment was framed to protect the negroes from oppression by the whites, not to protect corporations from oppression by the legislature. It is doubtful whether a single one of the members of a Congress who voted for it had any idea that it would touch the question of corporate regulation at all.' ^[1]

Both Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed.Cas.No. 7,052, 1 Woods page 88, and Mr. ustice Black in his dissent in Connecticut General Co. v. Johnson, supra, 303 U.S. at pages 88-89, 58 S.Ct. at pages 441-442, 82 L.Ed. 673, have shown how strained a construction it is of the Fourteenth Amendment so to hold. Section 1 of the Amendment provides:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' (Italics added.)

'Persons' in the first sentence plainly include only human beings, for corporations are not 'born or naturalized.'

Corporations are not 'citizens' within the meaning of the first clause of the second sentence. Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363, 27 S.Ct. 384, 385, 51 L.Ed. 520; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126, 33 S.Ct. 69, 72, 57 L.Ed. 146. ^[2]

It has never been held that they are persons whom a State may not deprive of 'life' within the meaning of the second clause of the second sentence.

'Liberty' in that clause is 'the liberty of natural, not artificial, persons.' Western Turf Ass'n v. Greenberg, supra, 204 U.S. at page 363, 27 S.Ct. at page 385, 386, 51 L.Ed. 520.

But 'property' as used in that clause has been held to include that of a corporation since 1889 when Minneapolis R. Co. v. Beckwith, 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585, was decided.

It requires distortion to read 'person' as meaning one thing, then another within the same clause and from clause to clause. It means, in my opinion, a substantial revision of the Fourteenth Amendment. As to the matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed.Cas.No. 7,052, 1 Woods at page 88, where he said, 'The plain and evident meaning of the section is, that the persons to whom the equal protection of the law is secured are persons born or naturalized or endowed with life and liberty, and consequently natural and not artificial persons.'

History has gone the other way. Since 1886 the Court has repeatedly struck down state legislation as applied to corporations on the ground that it violated the Equal Protection Clause. ^[3] Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled.

One hesitates to overrule cases even in the constitutional field that are of an old vintage. But that has never been a deterrent heretofore ^[4] and should not be now.

We are dealing with a question of vital concern to the people of the nation. It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, ^[5] they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation.

Notes

1. The Constitutional Position of Property in America, 64 Independent 834, 836 (1908). He went on to say that the Dartmouth College case, 4 Wheat. 518, 4 L.Ed. 629, and the construction given the Fourteenth Amendment in the Santa Clara case 'have had the effect of placing the modern industrial corporation in an almost impregnable constitutional position.' Id., p. 836.
2. Cf. McGovney, A Supreme Court Fiction, 56 Harv.L.Rev. 853, 1090, 1225, dealing with corporations in the diverse citizenship jurisdiction of the federal courts.
3. See Chicago & R. Co. v. Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702, 33 L.Ed. 970; Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Cotting v. Kansas City Stockyards Co., 183 U.S. 79, 22 S.Ct. 30, 46 L.Ed. 92; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Southern R. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536; Herndon v. Chicago, Rock Island & Pac. R. Co., 218 U.S. 135, 30 S.Ct. 633, 54 L.Ed. 970; Roach v. Atchison, T. & Santa Fe R. Co., 218 U.S. 159, 30 S.Ct. 639, 54 L.Ed. 978; Atchison & Santa Fe R. Co. v. Vosburg, 238 U.S. 56, 35 S.Ct. 675, 59 L.Ed. 1119, L.R.A.1915E, 953; Gast Realty Co. v. Schneider Granite Co., 240 U.S. 55, 36 S.Ct. 400, 60 L.Ed. 1239; McFarland v. American Sugar Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Royster Guano Co. v. Virginia, 253 U.S. 12, 40 S.Ct. 560, 64 L.Ed. 989; Bethlehem Motors Co. v. Flynt, 256 U.S. 421, 41 S.Ct. 571, 65 L.Ed. 1029; Kansas City So. 14 Co. v. Road Imp. Dist. No. 6, 256 U.S. 658, 41 S.Ct. 604, 65 L.Ed. 1151; Chicago & N.W.R. Co. v. Nye Co., 260 U.S. 35, 43 S.Ct. 55, 67 L.Ed. 115; Sioux City Bridge v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979; Thomas v. Kansas City So. R. Co., 261 U.S. 481, 43 S.Ct. 440, 67 L.Ed. 758; Kentucky Co. v. Paramount Exch., 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112; Air-Way Corp. v. Day, 266 U.S. 71, 45 S.Ct. 12, 69 L.Ed. 169; Hanover Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372, 49 A.L.R. 713; Power Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165; Louisville Gas Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927; Cumberland Coal Co. v. Board, 284 U.S. 23, 52 S.Ct. 48, 76 L.Ed. 146; Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929, 85 A.L.R. 699; Concordia Ins. Co. v. Illinois, 292 U.S. 535, 54 S.Ct. 830, 78 L.Ed. 1411; Stewart Dry Goods Co v. Lewis, 294 U.S. 550, 55 S.Ct. 525, 79 L.Ed. 1054; Mayflower Farms v. Ten Eyck, 297 U.S. 266, 56 S.Ct. 457, 80 L.Ed. 675; Hartford Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223.
4. In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216, overruled in part Osborn v. United States Bank, 9 Wheat. 738, 6 L.Ed. 204, a decision 63 years old; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128, overruled Peirce v. New Hampshire, 5 How. 504, 12 L.Ed. 256, a decision 42 years old. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, overruled Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, a decision 95 years old; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, 120 A.L.R. 1466, overruled Collector v. Day, 11 Wall. 113, 20 L.Ed. 122, a decision 68 years old. United States v. South Eastern Underwriter's Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, overruled in part Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357, a decision 75 years old.
5. The restrictions on state power which are contained in the Commerce Clause and which may prevent the States from burdening interstate commerce, see Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915; Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, 165 A.L.R. 574; or discriminating against it, see Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, 162 A.L.R. 844, rise from a different source and are not relevant here.