The Supreme Court Sold Out Our Democracy -- How to Fight the Corporate Takeover of Our Elections
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JH: And you found that what the real deal was. Tell me about that, and also tell me who JC Bancroft Davis is.
TH: Yes. Jack Chandler Bancroft Davis is his name. I started out writing a book about Thomas Jefferson's view of America and how we went off track. How we got off the rails. And I wanted to primary source everything in the book, like a good historian would do. And when I came to the 1800s -- when corporations became a major force in America, and led right to the massive accumulations of wealth that were marked the ‘Robber Baron Era’ -- there was a lot of material about how this case had been decided in 1886. And so I thought I ought to read the case so I could quote the exact language. Because nobody was quoting the exact language. Everybody was saying it was decided, but even Renquist in his Belotti dissent didn't quote the exact language. So I went into Montpelier, Vermont’s, old law library and spoke to Paul Donovan, the librarian there. And I said I'm looking for that 1886 case of Santa Clara County v. Southern District Railroad. And he said, ‘Oh, the one where corporations became people?’ And I said ‘Yeah, that one.’ And so he finds the book of Supreme Court proceedings from the term of 1886. He pulls it out, blows the dust off the top, and opens it on the table. This was before they started putting acid in paper in the 1930s, so the pages were still in pretty good shape. And he flipped through it, and he found the case, and he said, ‘Here's the head note. You can ignore that-- that has no legal status.’
And so I sat down and I just read it, all the way through, looking for those magic words that I could put in my book. And they weren't there. In fact, what the case was about was Santa Clara County was charging property tax to the Southern Pacific Railroad. And the way that they calculated property taxes for right of way was by fence posts along the railway. So X number of dollars for every 100 fence posts. And because Santa Ana County was charging a lower rate than Santa Clara County, the railroad was screaming foul, and in fact refused to pay the tax. And this ended up before the Supreme Court. And the railroad made a whole bunch of different arguments. And one of those was that this was illegal discrimination under the 14th Amendment, that they weren't being treated equally under the law by two different counties in the same state.
But the argument that I just described to you was not even referenced in the decision. Because there was a clear and explicit part of California law that gave each county the right to determine their own property taxes. The California law and the California Constitution backed it up.
And at the very end of the case, it basically said that the Court did not feel the need to address those federal Constitutional claims because they were able to find remedies within the California law and in the state Constitution.
JH: So they didn't even consider those arguments, they didn't need to, because they were able to decide the case based on other issues.
TH: Right. One of the core concepts of jurisprudence is minimalism. You always try to-- it's called "judicial restraint" -- you always try to decide a case as narrowly as possible, and if within that narrow band, you can find the remedy, then you don't go beyond that.