Chapter 2: The Courtroom Showdown

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Chapter 2: The Courtroom Showdown

The Old Senate Chamber in Washington was warm for January, the heavy air thick with coal smoke and anticipation. On January 26, 1886, two men prepared to argue before the most powerful court in America. One represented the largest corporation on the continent. The other represented a small California county fighting to collect its taxes.

The outcome would shape American democracy for the next century and a half.

The Railroad’s Champion

S.W. Sanderson entered the chamber like a man who owned it. And in a sense, he did. The chief legal counsel for the Southern Pacific Railroad stood more than six feet tall, an aristocratic bear of a man with neatly combed gray hair and an elegantly trimmed white goatee. For more than two decades, Sanderson had made himself rich litigating for the nation’s largest railroads, defending the interests of oligarchs like Leland Stanford, Charles Crocker, Collis Huntington, and Mark Hopkins.

Sanderson was famous enough that artist Thomas Hill had included him in his painting The Last Spike, commemorating the 1869 transcontinental meeting of the Union Pacific and Central Pacific Railroads at Promontory Summit, Utah. In that painting, Sanderson appears portentous and dignified, standing among the railroad barons who had conquered a continent. He saw himself as their equal.

That day he would ask the Supreme Court to grant his corporate clients something they had been seeking for decades: the constitutional rights of human beings.

Sanderson had argued versions of this claim before. The railroads had lost every time. In 1873, the Court had declared that the Fourteenth Amendment’s “one pervading purpose” was “the freedom of the slave race.” In 1877, the railroads brought four different cases to the Supreme Court, arguing that they deserved constitutional protection as “persons” under that same amendment. They lost all four.

But Sanderson kept coming back. The oligarchs he served had unlimited resources, unlimited patience, and unlimited ambition. They would keep filing cases until they found a way to win.

The People’s Advocate

Santa Clara County’s lawyer Delphin M. Delmas was everything Sanderson was not. Where Sanderson was large and imposing, Delmas was small and unimposing, a fastidious man known to wear a frock coat, gray-striped trousers, a wing collar, and an ascot tie. He had a substantial nose and a broad forehead only slightly covered with a wispy bit of thinning hair. He looked like a clerk, not a gladiator.

But in the courtroom, Delmas transformed. His voice thrummed with emotion. He was nationally known as the “master dramatist of America’s courtrooms,” and by 1904 would be called “the Silver-Tongued Orator of the West” when elected a delegate to the Democratic National Convention.

His courtroom performances were legendary. The nation would later learn just how brilliant he was in 1908, when he successfully defended Harry K. Thaw for murder in the most sensational case of the first half of the century, later made into the 1955 movie The Girl in the Red Velvet Swing, starring Ray Milland and Joan Collins. Luther Adler played Delmas.

But on this January day in 1886, Delmas was not yet famous. He was simply the young lead attorney for Santa Clara County, California, a small government entity suing the massive Southern Pacific Railroad for six years of unpaid property taxes.

While Sanderson had spent his career serving the richest men in America, Delmas had always worked on behalf of local governments and ordinary citizens. He had passionately argued, pro bono, before the California legislature for a law to protect the nation’s last remaining redwood forests. He was fiercely defensive about the rights of natural persons, of actual human beings, against the artificial creatures of law that sought to usurp their place.

For Delmas, this case was about something far larger than taxes. It was about whether corporations created by state law could claim the constitutional rights won by flesh-and-blood human beings who had fought and died for independence and then triumphed over the South’s brutal oligarchs in the Civil War.

The Stakes

The case itself was almost comically trivial. The Southern Pacific Railroad owed Santa Clara County approximately $30,000 in back taxes on property with a $30 million mortgage. That’s like having a $10,000 car and refusing to pay a $10 tax on it, then taking the case all the way to the Supreme Court.

One of the railroad’s defenses was even more absurd: when the state assessed the value of the railroad’s property, it had accidentally included the value of fences built by private landowners along the right-of-way. The county, not the state, should have separately assessed those fences. Therefore, the railroad argued, the tax was “unequal” compared to what they paid in other counties.

But the railroad’s lawyers had slipped something else into their arguments, something that had nothing to do with fences or tax assessments. They claimed that the railroad corporation was a “person” under the Fourteenth Amendment, entitled to the same constitutional protections as the freed slaves that amendment was written to protect.

If the Court agreed, it would transform American law. Corporations would gain the power to challenge any regulation, any tax, any democratic decision that treated them differently from human citizens. They would gain access to the Bill of Rights, to due process, to equal protection. They would become, in the eyes of the Constitution, the equals of the human beings who’d created them.

Sanderson’s Argument

Sanderson rose to address the Court. Chief Justice Morrison Waite looked down from the bench, a square-headed man with a bristly graying beard that shot out in every direction. Waite himself was a former railroad attorney who had never served as a judge before being appointed Chief Justice. He owed his position to President Grant, whose administration was so wracked with railroad bribery scandals that his own Republican Party refused to renominate him for the presidency.

“I believe,” Sanderson declared, “that the clause of the Fourteenth Amendment in relation to equal protection means the same thing as the plain and simple yet sublime words found in our Declaration of Independence: ‘all men are created equal.’ Not equal in physical or mental power, not equal in fortune or social position, but equal before the law.”

It was audacious. Sanderson was claiming that a railroad corporation, an artificial entity created by state law and owned by some of the richest oligarchs in America, deserved the same constitutional protections as freed slaves emerging from centuries of bondage. He was hijacking the language of liberation to serve the interests of concentrated wealth.

Sanderson’s fellow lawyer for the railroads, George F. Edmunds, added that the Fourteenth Amendment created a “broad and catholic provision for universal security, resting upon citizenship as it regarded political rights, and resting upon humanity as it regarded private rights.”

Humanity. The railroad lawyers were claiming their corporate clients were human.

Delmas Responds

When Delmas rose to speak, his transformation began. The small, fastidious man became something else entirely—a prophet of democratic rage: “The defendant claims that California’s taxation policy violates that portion of the Fourteenth Amendment which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws,” Delmas began, his voice thrumming with barely controlled fury. Such an argument, he said, “if tenable, would place the organic law of California in a position ridiculous to the extreme.”

Then Delmas went on the attack:

The shield behind which the Southern Pacific Railroad attacks the Constitution and laws of California is the Fourteenth Amendment. It argues that the amendment guarantees to every person within the jurisdiction of the State the equal protection of the laws; that a corporation is a person; that, therefore, it must receive the same protection as that accorded to all other persons in like circumstances . . . ​. To my mind, the fallacy of the argument lies in the assumption that corporations are entitled to be governed by the laws that are applicable to natural persons.

Delmas reached for the ultimate authority, the book that the Founders themselves had consulted when writing the Constitution: Sir William Blackstone’s 1765 Commentaries on the Laws of England. He quoted Blackstone: “Persons are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.”

Delmas moved from legal authority to common sense. If a corporation was truly a “person,” why could it not make out a will or get married?

“This definition suggests at once that though a corporation is a person, it is not the same kind of person as a human being, and need not, nay, in the very nature of things, cannot enjoy all the rights of such or be governed by the same laws. When the law says, ‘Any person being of sound mind and of the age of discretion may make a will,’ or ‘any person having arrived at the age of majority may marry,’ I presume the most ardent advocate of equality of protection would hardly contend that corporations must enjoy the right of testamentary disposition or of contracting matrimony.”

The Heart of the Matter

Now Delmas reached the heart of his argument. Everyone in that chamber knew the history of the Fourteenth Amendment. It had been written to protect freed slaves, to ensure that the men and women who had been held in bondage would have the same rights as their former masters. The blood of a civil war was still fresh on the ground. The memory of slavery was still alive.

He continued: “The whole history of the Fourteenth Amendment demonstrates beyond dispute that its whole scope and object was to establish equality between men, an attainable result, and not to establish equality between natural and artificial beings, an impossible result.”

Delmas was trembling now, his small frame vibrating with righteous indignation. He was a California Democrat who had spent his life fighting for the little guy, and he knew, as did anyone who read the newspapers of that era, exactly what the Fourteenth Amendment meant and why it had been written.

The Fourteenth Amendment, he declared, “is as broad as humanity itself”:

Wherever man is found within the confines of this Union, whatever his race, religion, or color, be he Caucasian, African, or Mongolian, be he Christian, infidel, or idolater, be he white, black, or copper-colored, he may take shelter under this great law as under a shield against individual oppression in any form, individual injustice in any shape. It is a protection to all men because they are men, members of the same great family, children of the same omnipotent Creator.

In its comprehensive words I find written by the hand of a nation of sixty millions in the firmament of imperishable law the sentiment uttered more than a hundred years ago by the philosopher of Geneva, and re-echoed in this country by the authors of the Declaration of the Thirteen Colonies: Proclaim to the world the equality of man.

The Mission of the Amendment

Speaking of the object of the Fourteenth Amendment, Delmas laid it out plain:

Its mission was to raise the humble, the down-trodden, and the oppressed to the level of the most exalted upon the broad plain of humanity, to make man the equal of man; but not to make the creature of the State, the bodiless, soulless, and mystic creature called a corporation, the equal of the creature of God. . . ​.

Therefore, I venture to repeat that the Fourteenth Amendment does not command equality between human beings and corporations.

The bodiless, soulless, and mystic creature called a corporation. Delmas had found the phrase that captured exactly what the railroads were asking for: to make an artificial creation of law the constitutional equal of a child of God.

The Warning

In closing, Delmas issued a warning. This case, he suggested, could be one of the most important in the history of the United States. If corporations were given the powerful cudgel of human rights secured by the Bill of Rights, their ability to amass wealth and power could lead to death, war, and the impoverishment of actual human beings on a massive scale.

“I have now done,” he said. “Yet I cannot but think that the controversy now debated before your Honors is one of no ordinary importance.”

The chamber fell silent. Delmas had laid before the Court the full stakes of what the railroad was asking. He had traced the history of the Fourteenth Amendment from the American Revolution to the blood of the Civil War to this moment, from Declaration of Independence to the liberation of enslaved human beings to the attempted liberation of soulless corporations.

The question was whether the Court would listen.

The Long Wait

A year and five months passed while the Supreme Court debated the issues in private.

In that time, the railroad oligarchs waited. Leland Stanford continued expanding his empire. Collis Huntington continued buying politicians. The Southern Pacific Railroad continued to refuse to pay its taxes, its lawyers confident that their strategy would eventually succeed.

And then came May 10, 1886.

That afternoon, in the same Old Senate Chamber where Delmas had delivered his passionate defense of human rights, Chief Justice Waite prepared to announce the Court’s decision. Delmas was there. Sanderson was there. The fate of American democracy hung in the balance.

What happened next would not become clear for another eighty years. The crime was about to be committed, and it would be hidden in plain sight for generations.

Delmas had won the argument. He would lose the war.

A Discovery Across Time

I searched for the better part of a year for copies of the arguments made in the Santa Clara case. The Supreme Court kept no detailed notes of oral arguments in those days. Most of what was said in that chamber was lost to history.

Then, in an antiquarian bookstore in San Francisco, I found a treasure: Speeches and Addresses by D.M. Delmas. It was a hardbound collection that Delmas had personally paid to self-publish in 1901, containing his most important courtroom arguments, including his full presentation before the Supreme Court in the Santa Clara case.

Holding that book was like holding a time machine. Delmas’s arguments were as brilliant and persuasive as any words that Erle Stanley Gardner ever put into the mouth of Perry Mason. Here was the voice of a man fighting for the soul of American democracy, preserved across more than a century.

He was right about everything. Corporations were artificial creations of law, not natural persons. The Fourteenth Amendment was written to protect freed slaves, not railroad barons. Granting corporations constitutional rights would distort American democracy for generations to come. It could even empower a would-be dictator to take over America with the help of corporate money.

Delmas saw it all, warned of it all, fought against it with every tool at his disposal.

And he lost anyway. Not because his arguments were wrong, but because the fix was already in. The conspiracy was already underway.

What Delmas could not know, standing in that courtroom, was that Justice Stephen J. Field was sitting on the bench with a plan. Field had already ruled repeatedly (including in the Santa Clara case) as a circuit court judge in California that corporations were persons under the Fourteenth Amendment. He owned railroad stock. He socialized with railroad executives. He harbored presidential ambitions that he hoped the oligarchs would finance.

And he had a friend in the court reporter’s office.