Networks of corporate subjectivity: Southern Pacific, Rio Tinto, BP and the rhetorical emergence of the corporate subject

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142 "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States" was not even in the majority or even the minority opinion of the Court. It was written as headnote documented by the court reporter, J. C. Bancroft Davis. In this headnote Davis wrote, One of the main points made and discussed at length in the brief of counsel for defendants in error was that ‘corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument 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 the opinion that it does. (in Hartmann, 2010, p. 31) The "accidental" nature of this headnote, to borrow from Foucault's (1978/2003) "Nietzsche, Genealogy, History," seems to indicate that corporations were already acting as constitutionally protected subjects that may have not even required the Court's unanimous decision to affirm their constitutional rights. Indeed, this driving assumption was not explicated in Justice Harlan's majority opinion, and if it would not have been for the reporter's self initiative, then this legal event would not have occurred in this particular case. Susceptible to the accident of translation, this headnote was even admittedly "not the work of the Court, but…but the work of the Reporter, giving his understandings of the decision, prepared for the convenience of the profession" (United States v. Detroit Timber & Lumber Company, p. 322). Even still, Chief Justice Waite confirmed Davis's interpretation as correct in a letter on May 26, 1886, after Davis wrote, Dear Chief Justice, I have a memorandum in the California Cases Santa Clara County v. Southern Pacific as follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does.