Ironically, like Roger Taney’s opining in Dred Scott, it first raises its head in a “headnote” to a case not dealing with the issue. In remarks setting the scene for their decision in Santa Clara County v. Southern Pacific Railroad (1886), the court remarked, “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.” This statement, that the court were “all of the opinion” that “any person” applied to the fictional entities created by state charters, precluded any formal challenge by telegraphing the outcome. Thus, in a sneaky way, the court avoided having to actually produce a decision of an actual case to establish this principle. Talk about legislating from the bench!

In the same way, the Fourteenth Amendment’s repeated use of the term “any person” in the Citizenship, Due Process, and Equal Protection Clauses has notoriously created a legal precedent for corporate personhood.