Prologue: A Crime in Plain Sight

Your weekly excerpt from one of my books. This week: "Who Killed the American Dream: The Greatest Political Crime Ever Told"

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Prologue: A Crime in Plain Sight

Every law student in America learns the same story: “In 1886, the United States Supreme Court ruled in Santa Clara County v. Southern Pacific Railroad Company that corporations are persons under the Fourteenth Amendment. This single decision fundamentally transformed American democracy, business, and law. It granted corporations the same constitutional rights as human beings: free speech, due process, equal protection. Everything that followed, from unlimited corporate campaign spending to corporate control of our media, politics, and environment, traces back to that pivotal moment.”

There’s just one problem: It never happened. The Supreme Court debated this issue and never made that ruling. Not in 1886, not ever.

What actually happened is far more disturbing: A court reporter, a corrupt Supreme Court justice, and the railroad oligarchs who owned America’s most powerful corporations successfully conspired to rewrite the Constitution. They committed the crime in broad daylight, recorded it in official court documents, and hid it in plain sight for 140 years.

This is both a detective story and a true crime investigation. Like all good mysteries, it starts with a discovery, mine, in a dusty Vermont law library on a cold winter day in 2002.

The Library Discovery

I thought I was confirming a fact. Instead, I uncovered a crime scene.

I was researching corporate power in America, working in the Vermont Supreme Court library six blocks from my then-home in Montpelier. Every legal textbook, every encyclopedia, every Supreme Court case for the past hundred-plus years cited the same precedent: Santa Clara County v. Southern Pacific Railroad Company (1886) established that corporations are persons under the Fourteenth Amendment.

The reason I was in the library was simple: I wanted to read the actual decision, not summaries, not commentary, but the words the Supreme Court actually wrote.

The Vermont Supreme Court library contains one of the most comprehensive collections of legal documents in New England. Librarian Paul Donovan pulled down Volume 118 of United States Reports: Cases Adjudged in the Supreme Court at October Term 1885 and October Term 1886. The book was published in 1888 by Banks & Brothers in New York, written by J.C. Bancroft Davis, the Supreme Court’s official reporter.

The volume was heavy in my hands, its leather binding cracked with age, pages giving off that distinctive smell of vanilla and dust that old books possess, the scent of history itself.

I found the case—page 394. What I discovered there would change everything I thought I knew about American democracy.

The decision itself, the actual legal ruling written by Justice Harlan, said nothing about corporate constitutional rights. In fact, it explicitly stated that the Court was not deciding that constitutional question. The Court instead ruled on a narrow technical issue about fence-post assessments and California property tax law. Corporate constitutional rights under the Fourteenth Amendment were not addressed, not decided, and not even meaningfully mentioned.

But at the top of the case, before the decision itself, sat something called a “headnote” which said, in part: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”

I read it again. Then again. My coffee grew cold on the table beside me.

The headnote claimed that under the Constitution corporations were persons.

The decision explicitly refused to rule on that question.

One of them was lying.

I paid seventy cents for photocopies and walked through the crisp winter air to the office of Jim Ritvo, a local attorney and friend.

“What’s a headnote?” I asked, spreading the pages on his desk.

He leaned back in his chair, studying the documents. “Court reporters write them. They’re summaries for lawyers, convenient shortcuts to understand what a case is about without reading the whole thing.” He looked up at me. “But Thom, headnotes aren’t law. They’re not part of the decision. They have no legal standing whatsoever.”

“So, this headnote that says corporations are persons . . . ​”

“Isn’t law,” he finished. “Never was.”

I felt the floor shift beneath me.

“But every case since 1886 cites this as precedent! Law schools teach it. The Supreme Court itself cited it more than a dozen times.”

Jim picked up the pages, reading more carefully. “Then somebody’s been fooled for a very long time. Or somebody’s been doing the fooling.”

The American Dream Is Murdered

I didn’t know it yet, standing in that Vermont library, but I was about to discover why my generation was the last to experience the American Dream as our parents and grandparents knew it.

When my Boomer generation was the same average age as Millennials are today, back in 1990, we held 21.3 percent of the nation’s wealth. Louise and I shared in that wealth: although we were still in our 30s, in 1990 we owned a profitable small business—our fourth—and a nice home.

Our own locally owned business, a home of our own, and the knowledge that our kids would have more opportunities than we did: that was, in fact, one common way of defining the American Dream. It was normal then.

My dad, born in 1928, worked in a tool and die shop. He was able to buy a house, a new car every two years, and take a two-week vacation every year because the middle class in America before the Reagan Revolution had a pretty damn good life. Dad retired in the 1990s with a full pension that let him and my mom travel the world. He lived the American Dream, as did his four boys.

Millennials today, by contrast, are roughly the same number of people as Boomers were in 1990 but hold only 4.6 percent of the nation’s wealth. If they’re the same age I was in 1990, they’re most likely struggling to own a home, are deeply in debt, and find it nearly impossible to start a small business.

This is what a bizarre theory called “corporate personhood” or “corporate constitutional rights” has brought us to. Boomers in their 30s owned 21.3 percent of the nation’s wealth, while Millennials in their 30s today own a mere 4.6 percent of the nation’s wealth.

And the story for Zoomers, those born in the late 1990s and early 2000s, is pretty much the same, if not slightly worse.

What happened?

The answer was there on page 394 of that musty law book. A single fraudulent sentence that gave America’s oligarchs and the corporations that made them rich the constitutional weapons to dismantle everything that made America work for working people.

Why did my children’s generation face stagnant wages while across the nation worker productivity soared? Why did crushing student debt replace the free or near-free college my generation enjoyed? Why did housing costs explode from two times annual income to ten times annual income? Why did healthcare go from a manageable expense to the leading cause of bankruptcy in America? Why did the promise that hard work would be rewarded with security become a cruel joke for tens of millions of Americans?

Virtually all of it came about because of corporate constitutional rights.

That fraudulent headnote gave corporations constitutional rights they could wield against democratic governance. Against unions. Against environmental protections. Against consumer safety laws. Against taxes that funded public goods. Against anything and everything that built and sustained the American middle class.

The American Dream didn’t just fade away: it was murdered. And the murder weapon was forged in 1886 and then lifted against all of us with the 1980s Reagan Revolution.

The Investigation Begins

I spent the next few weeks in that library, pulling case after case. The pattern was unmistakable. Dozens, then hundreds, then thousands of court decisions cited Santa Clara as establishing corporate constitutional rights. They cited it the same way, always referencing that headnote but never quoting the decision itself that contradicted it.

The legal profession had been fooled. Or perhaps more accurately, it had fooled itself, generation after generation of lawyers and judges accepting what they’d been taught without checking the original source.

But who wrote that headnote? And why? Is this what they intended? And what does it mean not just for working-class people but for our democracy itself?

The answer to those questions would lead me deep into one of the most consequential conspiracies in American history, a conspiracy involving railroad oligarchs who controlled more wealth than entire nations, a Supreme Court justice whose corruption was hiding in plain sight, and a court reporter whose single fraudulent sentence would reshape American democracy for more than a century.

This book tells that story. But it tells more than that.

It reveals how that original crime in 1886 metastasized into today’s corporate domination of our economy, our media, our politics, and our lives. How the oligarchs of this era—the billionaires who control corporations like Exxon-Mobil, Amazon, Goldman Sachs, Google, and Comcast—are the direct heirs to those railroad barons. How they’ve used the same legal fiction to accumulate unprecedented power and transfer over fifty trillion dollars from working Americans to their own money bins just over the past four decades.

It shows how two Progressive Eras, from the 1890s through 1921 and again from 1933 through 1981, built the American Dream by constraining corporate power. How the Founders understood the dangers of corporate tyranny and deliberately excluded corporations from constitutional protection. How FDR’s recognition that “necessitous men are not free men” led to the creation of the largest middle class in world history, with two-thirds of Americans achieving middle-class status by the day Reagan was sworn in as president on January 20, 1981.

And it shows how corporate constitutional rights gave America’s oligarchs, Ronald Reagan, George W. Bush, and Donald Trump, the weapons they needed to tear it all down. To crush unions. To slash taxes on the wealthy. To offshore our factories. To turn healthcare into a profit center. To transform housing into a speculative commodity. To burden our children with crushing debt for the education that was once free or nearly free.

All to make themselves richer than any king, emperor, or pharaoh in all of human history.

The Cover-Up and the Solutions

But stealing our constitutional rights wasn’t enough; to get away with the crime, the perpetrators needed to hide it. They needed to make sure that when working Americans asked, “Who killed the American Dream?” they’d blame the wrong people.

Thus, they began a cover-up of the crime, in part, as an effort to slip it into subsequent Supreme Court decisions to make it law and, in part, as an effort to disguise the crime itself from current and future generations.

Over the past fifty or so years, the most effective part of the deflection—or cover-up playbook—has been a remarkably successful effort to divert Americans’ attention and anger away from the oligarchs and corporations that are actively undermining our democracy and get people to instead blame their woes on women, people of color, welfare recipients, and, most recently, nonwhite immigrants.

Entire media operations have joined this effort, as I’ll document in subsequent chapters. And it’s been largely successful; most Americans—and certainly the Republican base—have bought the cover-up hook, line, and sinker. They have no idea that the same billionaires who own the media that keeps them fooled are also working hard to keep them down, and instead cheer every effort to “own the libs” rather than constraining corporate or billionaire power.

What You Can Do to Fight Back

Most importantly, this book shows how we can undo the crime. How we can restore democracy. How we can reclaim the rights that were stolen from us and given to artificial entities that exist only on paper. I’ll detail for you exactly how we can rebuild the American Dream for our children and grandchildren.

There are multiple steps to reversing the abuse of human rights that this crime, committed in 1886, handed to corporations and America’s oligarchs.

They include passing legislation to blunt some of the worst impacts (particularly on our politics, now that corporations and billionaires can legally buy elections), passing a constitutional amendment to prevent Republicans on the Supreme Court from continuing or expanding these “corporate constitutional rights,” and waking up as many Americans as possible to this crime and its consequences.

We can fight back at every level of government (and you’ll learn that people have been doing just this for decades with increasing success). Taking on this battle can be one of the most effective ways of re--empowering our democracy.

The rebellion has already begun; by the time you finish this book, you’ll know how to join it.

But first, we need to understand exactly how the crime was committed.