Drinking with Roscoe Conkling

“Meet me down at the bar,” Conkling insisted, “I’ll give you some background for your readers. What paper were you with?”
Thinking on my feet, I told him, “Oh, the San Francisco Bulletin. I’m here to cover the Santa Clara case.”
“Yes, of course,” he bellowed. “I do believe I’m still listed as counsel for them. Those gentlemen defending the railroad paid me a pretty sum to argue for them.”
Conking was trying to get a look at the books on my bed, but I certainly did not want him to see a 21st century date. I feigned (well, actually I wasn’t feigning) that I had to use the pot, and if he would excuse me. Conkling left me to my business, which I shall not describe (boy, am I glad to have been born in the reader’s century). Anyway, I walked down three flights of stairs and found my way to the bar. A bar that looked like what I thought a bar should look like in the gilded age – heavy woods, lots of brass, and a bartender with a handle-bar mustache wearing a white apron. Conkling was sipping some sort of whiskey at the bar, and I approached.
“Mr. Conkling, how do you do?”
“Sit down; let me get you a whiskey.”
Conkling wasted no time in getting right to his famous argument in San Mateo. “You know,” he said, “everyone thinks they were so smart in ratifying that 14th Amendment. They all thought it was about granting rights to the Negro; however, not only was I a United States Senator, but I was also a railroad attorney. In fact, the Supreme Court and the last few cabinets were flush with railroad men. Why, even Lincoln was a railroad attorney in the 1850s. He even sued the Illinois Central for a $2000 fee. I must say though, Lincoln only represented the railroad after the county refused to hire him. The railroads paid very well, indeed.”
Conking goes on, “You know this has been a long journey for me, but I still feel the energy as when I was admitted to the bar at age 21. I think that that was in 1850. Lincoln and I were contemporaries you know, except that I was immediately appointed district attorney in Albany. Please excuse me for my verbiage, but I’m known for my oratory.
Conkling took a swig of whiskey, and said emphatically, “Before I go on, you do know that I’m a Free-Soil Republican. I despise slavery, and I abhor the South and their hypocritical institutions. I was elected to the U.S. Congress and served three terms. After the war, I relished the opportunity to serve on the Committee of Reconstruction. Yes, like I said, I was a member of the Committee of Fifteen, and we hammered-out the Fourteenth Amendment. Yes, I wanted to assure the safety and rights of the freedmen – that was the major concern. Of equal importance to me was to represent the interests of my law clients, namely the railroads! Protecting the rights of big business was equally as important – and that paid!”
Conkling’s getting s bit liberal with his words, “Persons and citizens, there is a difference you know. If I had allowed the Committee to use that word “citizen,” well, where would that leave my clients and their rights? ‘…nor shall any State deprive any person of life, liberty, or property, without due process of law…’ that was my insistence. Person is ambiguous you know, it could mean natural person, as in citizen, or artificial person, as in corporation. Leaving it ambiguous, left the sentence interpretable that, well, corporations are persons with the same protected rights, privileges, and immunities!
Conkling rested his arm on the bar, “My Supreme Court arguments were easy. My friends are on the court, even that Justice Fields – he’s a racist, you know – but he’s still a railroad man. Good God, even the court reporter was a former railroad president. This will all make sense and coalesce, as you shall see. I must warn you, though, that much of what I tell you is off the record!”

Corporate Personhood

Reading, reading, reading…no one told this reporter that law school would encumber so much reading, but reading I shall go. This Constitutional Law casebook must weigh 20 pounds and weighs even heavier upon my eyes. One more chapter for the night… let’s see, what’s this? HELD in Santa Clara County v. Southern Pacific Railroad (1886) that a corporation is a person! Wow, a corporation is a person with all the inherent rights of a United States citizen protected under the revered 14th Amendment to the Constitution. Well, I never knew. Who would have thought that this obscure decision over a hundred years ago, and comprises only two sentences in a 2000-page casebook, would change the course of national commerce for generations. So that explains some recent controversies such as national and international corporations claiming that their speech (advertising) is protected under the First Amendment via the “due process” clause of the Fourteenth Amendment. Moreover, corporations have the right against discriminatory taxation and burdensome laws that would be unconstitutional for the natural “person” as set forth in the Fourteenth Amendment, because corporations are PERSONS.

This hotel bed is just too comfortable, and the view of the flowing Potomac River in May is hypnotic, but I must go on in order to not make a fool of myself on the law exam I have to take in the morning. My Ambien is having its affect and my eyes grow heavy. I’ll try to read some more, but I’m beginning to catch myself drifting away…sleepy…gone.

It’s morning. I fell asleep with 20 pounds of a book on my chest. Water, I need water. Where are my glasses? Of course they fell off my face and on the floor as usual. Let me see. Ummm…you know, I really didn’t get a good look at this room before I started studying, but I did not know it was decorated in a historic theme like something from the gilded age, but then, after all it is a 200-year-old Washington hotel. I looked out the window and the Potomac is still there. Now, where is the bathroom? Don’t see it, but there’s a ceramic pitcher of water on an antique table. What fancy etched glasses with gold lips - unusual I thought for a hotel room, no matter how fancy.. I have to use the bathroom. What, no bathroom! There’s a bathtub in the room, but no toilet! Let me see if there’s a maid in the hallway, and find out what’s going on. I burst into the hallway and bumped into this distinguished looking boxer of a man who looked like he was just about to board the Titanic.

“Excuse me sir, but could you tell me where the bathroom is in this room?”
“Bathroom,” he haughtily exclaimed, perusing me like I’ve never been in a decent hotel, “You have a bathtub in your room – just call for the hot water”
“No,” I said, “Where’s the toilet?”
“What in God’s name is a toilet?
“I have to, well, you know, relieve myself.”
“Man, haven’t you ever stayed in a hotel before? Here, let me show you. Look, you see this chest?” He points to an antique commode-type thing and pulls out the bottom drawer. “Look, this is where you do it, in this pot. The maid will empty it later.”

“Oh," I said in astonishment. Where the hell am I? Am I dreaming? This is just too Kafkaesque for me. Then the lightbulb went off. I couldn’t have traveled back in time, could I? Maybe I did, so I’ll just go with the flow. What the hell, and what an opportunity for a reporter! I have my laptop; let me see if the internet works. It does! Wow, now I can report to my readers history as it’s happening and give them the real scoop, not to mention, this will make my law professors so very happy – now they can get a real historic perspective! Let me start with this distinguished gentlemen.

“Pardon me, sir, may I get your name and your business?”
“You don’t who I am, a bit flabbergasted? Why, I’m the honorable gentleman Roscoe Conkling, the defender of corporate rights and champion of laissez-faire. I’m in Washington today to hear the Supreme Court sustain and give me the accolades due me for my logical and articulate argument on my defense of Southern Pacific's rights on the basis of the due process clause of the14th Amendment. The railroad corporation is a person you know and as such has the same rights and privileges as any other citizen. I argued this in San Mateo County v. Southern Pacific , and the attorneys have used that argument in the Santa Clara County v. Southern Pacific, which the court will decide tomorrow.

I bet you didn't know that I purposely inserted the word “person” (instead of "citizen") when I drafted the 14th Amendment. I was, of course, on the committee of 15 in congress that drafted the amendment. Me and Bingham - we were quite the team. Everyone thinks I kept a private journal of the congressional proceedings that corroborates the intention of congress to include corporations within the protections of the 14th amendment. Now I argue on behalf of railroads that corporations are persons under the amendment. The corporation is a citizen, and I wanted that to be emphatic!

Well, you know I’m a railroad lawyer and I and my cohort in congress, Bingham, devised the plan. Let’s have dinner tonight and I’ll give you the whole scenario with some additional background. I think you'll find it intriguing. To think that I economically saved this country with corporate personhood - well, what thanks do I get? Well, I was offered the Chief Justice position by my friend Ulysses Grant, but there was just no patronage with it. Not worth it to me. Oh, and that dandy Chester Arthur, he offered me an associate justice post, but I declined.

Conkling went on, "Since, you're so interested, come with me to the Supreme Court. Afterwards we'll have dinner and more discussion. I'll even give you a copy of my San Mateo argument. You will see the logic. Since you told me you're a reporter interested in law, you can relate the intimate details to your readers straight from the source. Maybe you can redeem my reputation over the indignities I suffered when I was forced-out of the port of New York. I've had such rotten luck lately. Garfield gets elected and I resign my U. S. Senate seat in protest. Then he gets killed!
"
So, Comes Now: Reporting live from 1886, this reporter gives you the real events as they happen. I do have a bathroom issue though...Hey, it's an historic adventure!