We the Corporations Read online

  Although Justice Miller’s opinion in the Slaughter-House Cases had nothing directly to do with corporate personhood, the question raised by the case was related: Did the Fourteenth Amendment create a barrier to laws regulating economic activity? Miller answered in the negative, insisting that the Fourteenth Amendment was designed with “one pervading purpose”: “the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Quoting the legendary early nineteenth-century jurist James Kent of New York, Miller reminded Campbell that, when it came to economic matters, “private interests must be made subservient to the general interests of the community.” The Fourteenth Amendment was not intended to protect white butchers unhappy with economic regulation. It was designed to protect African Americans.

  “We doubt very much,” Miller predicted with startling inaccuracy, “whether any action of a State not directed by way of discrimination against the negroes as a class, on account of their race, will ever be held to come within the purview of this provision.”19

  * * *

  IF ANYONE COULD PERSUADE Justice Miller and the other members of the court to read the Fourteenth Amendment more broadly, it was Roscoe Conkling. He spoke from his own experience about what was on the mind of the drafters—what was on his mind—when the amendment was written.

  By the time San Mateo County v. Southern Pacific Railroad came before the justices in 1882, the law was changing in ways that would help Conkling’s argument for expansive corporate rights. Reconstruction had ended, and Congress’s decision to turn a blind eye to southern racial discrimination after the disputed election of 1876 was matched by crimped readings of the Fourteenth Amendment by the Supreme Court. Although Samuel Miller’s court was not willing in the 1870s to broadly read the amendment to give rights to businessmen like the New Orleans butchers, it also refused to read it broadly to protect the rights of racial minorities in cases like 1876’s United States v. Cruikshank and United States v. Reese. The same year Conkling appeared before the justices, the court struck down the Civil Rights Act of 1875, which like the Civil Rights Act of 1965 outlawed racial discrimination in theaters, restaurants, and other places of public accommodation. With race minimized in the emerging jurisprudence of the Fourteenth Amendment, the time was ripe for another effort to establish protections for economic rights.20

  The stakes in the Southern Pacific case were high for Conkling personally, despite his renown. The year before his Supreme Court argument, Conkling suffered an embarrassing public humiliation when he resigned from the Senate to protest President James Garfield’s appointment of one of Conkling’s rivals to run the New York Custom House, a spoils appointment that Conkling thought he should control. Garfield and Conkling, however, were in a titanic power struggle over control of the Republican Party, and the president made the appointment over Conkling’s objections in order to make a statement. Conkling promptly resigned, although he intended it only as a symbolic gesture. At the time, before the adoption of the Seventeenth Amendment, senators were chosen by the state legislatures. Conkling, for decades the most powerful politician in New York, expected state lawmakers to quickly return him to the Senate. Yet Conkling’s political influence was already on the wane, and the New York legislature selected someone else. Garfield heard the news on his deathbed, the victim of an assassin’s bullet, but was nonetheless able to summon the strength to whisper, “Thank God.”21

  Conkling’s appearance before the Supreme Court was his return to the halls of power, a chance to show that he was still a man of influence. He still garnered ample respect in many circles; President Chester Arthur, one of Conkling’s protégés, had offered him a seat on the Supreme Court earlier that year. He had been forced by his finances to turn down the Supreme Court appointment but he could nevertheless still exert his power over the law. According to one of Conkling’s biographers, the Southern Pacific case would be “the most important case he ever argued.”22

  Judicial review, Conkling once remarked, made “the Constitution, the institutions of the country, nothing but wax in the hands of judges; it amounts to a running power of amendment.” Conkling’s concerns about judicial activism were widely shared among Republicans of the time, for whom the Supreme Court was associated with Dred Scott v. Sandford and the series of postwar decisions that minimized the Fourteenth Amendment’s protections for racial minorities. Yet now Conkling, sloughing off his hesitancy about activist judges, sought to persuade the Supreme Court to mold the wax again, in the shape of a corporate person.23

  “May it please your Honors,” Conkling began. “I come now to say that the Southern Pacific Railroad Company and its creditors and stockholders are among the ‘persons’ protected by the Fourteenth Amendment of the Constitution of the United States.” In the law, the word person, Conkling told the justices, “has by long and constant acceptance, and by multiplied judicial construction, been held to embrace artificial persons as well as natural persons.”24

  The drafting history of the amendment offered proof. The Joint Committee’s first version was changed on what Conkling implied was his own recommendation. He had suggested the committee strike “the words ‘citizens of the United States’ ” and replace them with “ ‘persons in each State’ ” in order to provide broader protections, whose reach would extend to artificial persons like corporations.

  A skilled lawyer, however, recognizes the weakness of his own argument, and Conkling’s had a few. The Fourteenth Amendment used the word person or persons five times, and most of those references were unambiguously to human beings. The first sentence guaranteed citizenship to “all persons born or naturalized in the United States”; corporations were neither born nor naturalized. Section two of the amendment, which established how representatives would be apportioned among the states, required a “counting” of “the whole number of persons in each State, excluding Indians not taxed.” No one, either then or since, has claimed that business corporations should be counted in determining the number of seats a state has in Congress. Section three of the Fourteenth Amendment prohibited any “person” from serving in federal office who had previously violated an oath to support the Constitution by joining the Confederacy. Conkling was asking the justices to read the same word person, used in multiple provisions added to the Constitution at the same time, to mean different things.

  Conkling’s was an argument that had been made—and rejected—once before. In 1871, the Continental Insurance Company of New York sued to invalidate a New Orleans ordinance that required out-of-state insurers to pay license fees double that of in-state insurers. It was one of the many nineteenth-century cases in which corporations challenged state laws burdening foreign companies, similar to Daniel Webster’s case on behalf of the Second Bank of the United States in Bank of Augusta v. Earle. Two decades after the Taney court rejected Webster’s challenge, which had been based on the Constitution’s comity clause, the Continental Insurance Company based its claim on the brand new Fourteenth Amendment and its guarantee of equal protection of the laws. New Orleans was not treating the out-of-state insurance company equally to in-state insurance companies, the corporation argued. Federal judge William Burnham Woods, a veteran of the Civil War with a populist view of corporations, disagreed. Noting that the Fourteenth Amendment’s use of the word person clearly meant human beings in several of its clauses, Woods, who would join the Supreme Court in 1880, found it hard to believe, as the insurance company suggested, “that the word ‘person’ . . . has a wider and more comprehensive meaning” in the equal protection clause. “This would be a construction for which we find no warrant in the rules of interpretation.”25

  THE FOURTEENTH AMENDMENT WAS DRAFTED BY THE JOINT COMMITTEE ON RECONSTRUCTION, WHICH INCLUDED AMONG ITS MEMBERS ROSCOE CONKLING.

  In the Supreme Court, Conkling had to have a response to Woods’s point, not least because Woods was among the justices on the bench before him. Conkling’s answer was one only a
drafter of the amendment could plausibly offer. He told the justices the various provisions of the Fourteenth Amendment did not have “a single inspiration or design.” Rather, “the different parts of what now stands as a whole” were, he said, “separately and independently conceived” by the committee over the course of months. The meaning of the word person in one sentence was not necessarily the same as the meaning of the word in another. The several provisions “came to be collected in one proposal of the amendment—put together in sections for the convenience and simplicity of submission to the States.”

  What about the Slaughter-House Cases, which had suggested that the Fourteenth Amendment was about equal rights for the former slaves? “It may be true, as Mr. Justice Miller has observed, that but for these considerations this amendment never would have been suggested,” Conkling acknowledged. Yet while the “rights and wrongs of the freedmen were the chief spur and incentive” of the amendment, Conkling’s committee had intended to do far more, he said. Invoking the American Revolution, Conkling, a well-versed student of American history, reminded the justices that “a tax by way of a paltry stamp on paper sundered the relations of the colonies and Great Britain. But what then?” The Revolution did not confine itself to overturning the Stamp Act, it was not limited “to the little cause, the particular instance” that gave rise to the conflict. “A particular grievance, some startling illustration of a grievance, is commonly the spur of agitation, and of popular or legislative action—sometimes of revolution.”

  Of course there was still the most glaring problem with Conkling’s corporationalist argument: no one in the public debate over the ratification of the Fourteenth Amendment had ever mentioned business corporations. Conkling’s response was to point to the text. It referred to persons, not African Americans. “The American people,” he said, “in giving it their imprimatur understood what they were doing, and meant to decree what has, in fact, been decreed.” In other words, it did not matter that no one talked about protecting corporations. All that mattered were the words that the sovereign people added to the text, which should be read expansively to protect everyone, including corporations, from discriminatory laws. Paraphrasing a Ralph Waldo Emerson poem well known at the time, Conkling shrugged off the people’s ignorance of their deed by suggesting they “may have builded better than they knew.”

  For additional support for what might have been seen as a scurrilous argument, Conkling also had his musty old journal. It had been compiled contemporaneously “by an experienced recorder” to capture the Joint Committee’s deliberations over the Fourteenth Amendment. Conkling’s surprising revelation must have stirred the fine ladies watching from the court’s red velvet benches. It may have had an even more profound effect on his intended audience, the justices. After Conkling sat down, his cocounsel S. W. Sanderson rose to the lectern to add to the Southern Pacific’s argument, only to be quickly interrupted by Justice Miller. The author of the Slaughter-House Cases unexpectedly offered a more nuanced view of the Fourteenth Amendment: “I have never heard it said in this Court, or by any judge of it, that these articles were supposed to be limited to the negro race.”

  * * *

  CHARLES A. BEARD, A PROFESSOR at Columbia University in the early decades of the twentieth century, was among the first to suggest that Conkling’s argument revealed a profoundly troubling conspiracy behind the adoption of the Fourteenth Amendment. Beard, perhaps the most influential historian of the Progressive era, was best known for his 1913 book, An Economic Interpretation of the Constitution of the United States, which argued that the Founding Fathers were men of wealth who crafted the Constitution largely to protect their own economic interests. His blasphemous accusation sparked tremendous controversy. Some, like Harvard historian Alfred Bushnell Hart, called the claim “little short of indecent,” while populist reformers praised it as proof that our constitutional system was rigged to favor the rich—that ours was a government “of the capitalists, by the capitalists, and for the capitalists.”26

  In Beard’s view, political actors were almost always motivated not by high principle but by economic and class concerns. This applied both to the Founding Fathers who wrote the Constitution and to the Roscoe Conklings who so attempted to radically revise the document after the Civil War. Beard’s 1927 book, The Rise of American Civilization, coauthored with his wife Mary Beard, argued that there were two factions in the Reconstruction Congress, “one bent on establishing the rights of the Negroes; the other determined to take in the whole range of the national economy.” Conkling and Representative John A. Bingham, a leading drafter of the Fourteenth Amendment, belonged to the latter faction. Bingham, the Beards noted, was a lawyer for the railroads, and they accused him of manipulating the wording of the amendment “by including among the safeguards devised for Negroes a broad provision for the rights of all ‘persons,’ natural and artificial, individual and corporate.” Conkling’s argument to the Supreme Court in the San Mateo case was the culmination of the plot, the fruit of the seeds planted by the drafters years earlier. Yale law professor Walton H. Hamilton labeled the Beards’ story the “conspiracy theory” of the Fourteenth Amendment.27

  In later years, however, other historians reexamined the evidence and found much to disagree with in the Beards’ analysis. No one looked more closely than Howard Jay Graham, a deaf librarian who became the nation’s leading expert on the Fourteenth Amendment. In the 1950s, Graham played an influential role as an advisor to the NAACP in the drafting of its briefs in Brown v. Board of Education, the school desegregation case. Back in 1938, however, Graham published a two-part series of articles in the Yale Law Journal refuting the Beards’ charges. The Beards, Graham argued, badly misconstrued Bingham’s speeches and were too easily swayed by Conkling’s misleading argument in San Mateo. Graham’s reconstruction of the history of the Fourteenth Amendment’s drafting led him to conclude that the Joint Committee had not engaged in a secret, purposeful effort to mislead the public and protect corporations.28

  Conkling was another story altogether. It was true, as Conkling said, that business corporations were petitioning Congress for protection against oppressive state laws during the drafting of the Fourteenth Amendment. Graham studied the Congressional Globe, however, and found that the petitions were seeking protective legislation, not a constitutional amendment. Their efforts failed to produce even the legislation, much less the harder-to-enact amendment. Indeed, when the amendment was submitted to the states for ratification, business newspapers and journals ignored it, suggesting that business interests did not expect it to have any relevance to them. And none of the men who drafted the Fourteenth Amendment, many of whom were practicing lawyers representing businesses, invoked their handiwork when opportunities arose in challenges to regulation the years immediately after the amendment was ratified. Graham noted “astute draftsmen and smooth operators do not choose to wait a decade and a half to divulge intentions and reap contemplated gains.”29

  Conkling’s journal, Graham discovered, was legitimate; it was in fact a previously unpublished record of the deliberations of the Joint Committee that drafted the Fourteenth Amendment. Yet, when Graham looked at the journal closely, he quickly realized that it did not support Conkling’s arguments at all. In particular, the journal refuted Conkling’s claim that the committee had changed the wording of the amendment from citizen to person. Examining all the proposed drafts and Conkling’s journal, Graham concluded that “neither the sub-committee, nor anyone, at any time or under any circumstances, so far as the historical record indicates, ever used the word ‘citizen’ in any draft of the equal protection or due process clauses.” Contrary to Conkling’s suggestion, the language of the amendment was never revised to cover business corporations.30

  Conkling, Graham concluded, “suppressed pertinent facts and misrepresented others,” “resorted to misquotation and unfair arrangements of the facts,” “made free use of inference and conjecture, and above all he imposed upon the good faith o
f listeners who undoubtedly had a high regard for his veracity.” “Whether, and to what extent, his gains were the result of deliberate plan and artifice can never be known with certainty,” Graham admitted. Yet “it is almost impossible to believe that he did not do this intentionally.” In the end, the only reasonable conclusion was that Conkling’s argument was “a deliberate, brazen forgery.”31

  There was no conspiracy by the drafters of the Fourteenth Amendment to sneak protections for business corporations into the Constitution. Graham’s analysis, however, suggested that there was a secret, purposeful effort to mislead the justices in the San Mateo case.

  * * *

  WITH A BALD CROWN offset by a thick tangle of curly hair in the back and a beard so long it concealed his bow ties, Stephen J. Field was among the justices presiding the day Conkling made his argument to the Supreme Court. Although Field was not convinced by Conkling’s claims about the drafting of the Fourteenth Amendment, he was a corporationalist who, like Conkling, was determined to see business gain the protections of the Fourteenth Amendment.

  Field had a forceful personality that provoked strong feelings—including, in some, a desire to kill. Field came close to being murdered twice. The first time, in 1853, when Field was still a lawyer in California, a man he had defeated in a case snuck up behind him and put a gun to his head. The man demanded Field, who was known to carry a gun, draw his own weapon to defend himself. When Field refused, the man walked away, following a code of honor not always adhered to in the Wild West.32