[Photo of Chief Justice Waite]
Okay, I just finished reading Mr. Conkling's argument before the Supreme Court in the railroad tax case of San Mateo County v. Southern Pacific Railroad (1885) [Conkling arguing for it in 1882] , and I must say, reading this original document, that Conkling makes quite a convincing argument against states impinging on the rights of corporations, because corporations were regarded as "persons" under the 14th Amendment. The taxes that California was attempting to impose on the Southern Pacific Railroad were unconstitutional, and thus invalid, because corporations were persons and thus protected under the "due process" clause of the 14th Amendment. Well, I thought, Conkling ought to know, because after all, he was on the congressional committee of 15, which drafted the 14th Amendment. In fact, reading contemporary reporting on his oral argument, Conkling almost incessantly waived a document in front of the justices that alluded to private notes of the original debates and discussion of the intentions of drafters of the Amendment, and that intention was to include corporations as persons protected by the due process provision. Interestingly, the alleged document was not reported as ever being read by anyone.

Leland Stanford, yes the endower of Stanford University, whose first student was Herbert Hoover (which I only mention here as historical interest), was not only a U.S. Senator at the time of the case, but was also president of the railroad. Stanford hired Conkling, a recently resigned U.S. Senator to argue the constitutional portion of the case. One could only imagine the oratorical panache of Conkling, bellowing, gesticulating and waving this document of the original proceedings, all the while insisting that he knew the intention of the Amendment ─ after all, he was there. He was Roscoe Conkling, nominated to be a Supreme Court justice himself (but declined, because of lack of patronage), thus the presiding justices must view his argument as fact. Therefore, a corporation was entitled to the same due process of persons under the 14th Amendment. Indeed, the concept of "corporate personhood" was born.

It should be mentioned that the San Mateo case, where Conkling made his argument, became moot after the railroad agreed to acquiesce to some county taxes and the matter was withdrawn. The Court, although heard, never considered Conkling's constitutional argument for the rights of corporate personhood, but Chief Justice Waite was evidently so impressed with Conkling's argument that it was in a later case, Santa Clara County v. Southern Pacific Railroad (1886), that Waite was recorded as saying that he agreed that corporations were persons and hence, protected under the 14th Amendment. However, this alleged statement of agreement on this constitutional issue was only entered as a head note to the actual opinion, and therefore, had no real constitutional precedential value. Incidentally, as will be discussed later, the court reporter, a man named Davis (himself a former railroad president) may have had an ulterior purpose in the reporting. Moreover, as an interesting and incidental fact, the Supreme Court reporter was paid more than a Supreme Court justice, $11,000 v. $10,000, so the reporter position was one of high prestige and importance. Chief Justice Waite was reported as saying by Davis before his announcement of the Santa Clara decision that: "The Court does not wish to hear argument on the question whether…the Fourteenth amendment…applies to these corporations. We are all of the opinion that it does." This, we will see, was perceived as a fateful precedent that would not be overturned until the 1930s. But this is a discussion for later.

According to reports of the time, Conkling was an insufferable "egotist," (well, I mean "egoist," because Freud had not yet coined the term). Conkling was haughty and unbearably pompous. You know, after a few drinks I'm sure I can handle him. He was described as "the great egoist, hater, and cynic of a mediocre Senate." As previously mentioned, he was noted for his "turkey gobbler strut." As mentioned by Dr. T, Conkling may have been the epitome of the "Gilded Age politician." And gosh, pompous enough to turn down two Supreme Court nominations. But enough personality. I think we all get the gist of the man by now. Just one other note that might be significant in the Court's Santa Clara decision ─ Chief Justice Waite may have owed Conkling for his Supreme Court position, because Conkling was assured the position when it offered to him by President Grant. This history is just fascinating, and reading these political and judicial proceedings just epitomizes the entire gist of the Gilded Age. This simple blog to my readers really does not do the era justice, and perhaps a future book may be in order. As a reporter, I am pressed for time and I have to meet with Conkling in the saloon, and boy do I need a drink. I wonder what they serve for Stoli?

"Mr. Conkling, so nice of you to wait for me. I must, however, since we are pressed for time, get right into your famous argument in the San Mateo case."

"Not an issue. I always have a few libations before a Supreme Court hearing. I could be running that Court, you know? I need to keep busy, since I just resigned from the Senate over Chester's [President Arthur] treachery. How dare he deny me my patronage. That spoiled Brooks Brother's dandy deceived us all. Moreover, that incompetent New York legislature ─ how dare they refuse to reappoint me! Bartender, bring this man a drink!"

Oh, and by the way my dear readers, remember that prior to the enactment of the 17th Amendment in 1913, Senators were picked by state legislatures, not popular vote.

"So, Mr. Conkling, you were part of the dream team, along with former Chief Justice of the California Supreme Court, which represented the Southern Pacific Railroad. Was it your sole job to argue the Congressional intent of the Fourteenth Amendment, and convince the Court that corporations were protected as persons?"

"Yes, indeed; however, I always had the upper hand, because that Waite was afraid that I might become an Associate Justice. Presidents are always wanting to appoint me. The justices knew that I could be a real thorn in their rears. However, I do think that Stanford wanted me, because he knew that I was part of the committee that wrote the 14th Amendment. It was called the Joint Committee of Fifteen on Reconstruction, if you know your history."
Conkling went on, "You should have seen those justices when I was reading from my "secret journal" of the deliberations of the committee, and kept waving it around like the gospel. Between you and me, it was just my nephew's private diary. Intent, intent, intent ─ I just hammered it in! Essentially though, it was just one smoke-filled room [The Committee of Fifteen] talking to another smoke-filled room [The Supreme Court]. I think history will show this period, and what did you call it? The Gilded Age, or some gibberish ─ well, there was no such thing as ethics. Just forget about integrity Did you know that I purposely omitted the word 'citizen,' in favor of 'person' just so I could protect my patronage interests in the railroads?"

Conkling was getting a bit stoned and admitted that Stanford was paying him $10,000, but didn't want to put too much work into a "revelation" of an argument. Conkling, instead, merely re-wrote and twisted an old transcript to fit a grandiloquent Supreme Court oral argument. After all, it was only $10,000. A law librarian at Stanford will later uncover Conkling's notebook and prove that Conkling lied to the Court.

"Mr. Conkling, I have the proceedings from your oral argument in San Mateo. Do you mind if I get a bit of clarification?"

"Not at all," and we both toast with this 100-year-old brandy. "Start your questions, because we have to leave shortly."

"Now you said on page 11 of your argument that the 'Southern Pacific Railroad company and its …stockholders, are among the 'persons' protected by the Fourteenth Amendment of the Constitution of the United States.' Further, you stated that the amendment requires application of the 'due process of law' under the Fifth Amendment, and you cite two legal precedents. So, you are holding that the States are required to provide due process to corporations, because the Fifth Amendment incorporates through historic precedent 'artificial' persons, as well as 'natural' persons. And of course, you rationalize the fundamental rights in the Fifth preserved with the wording in the Fourteenth, "nor deny to any person within its jurisdiction the equal protection of the laws. However, you had to make your argument make sense that it was the intent of the fourteenth to protect artificial persons, as well as natural persons, i.e., the freedmen, and you did this by revealing that you had a transcript of the 'secret' proceedings, and then you proceeded to quote extracts from it. You told the Court that after disposing of the preliminary 'subject of suffrage, the ballot, and representation in congress,' you [the committee] concentrated on the issue of what constituted a person under the Amendment for protective purposes. Do I have this right so far?"

"I stand by it today, and the Court will affirm it today."
"Now what I find interesting is that Mr. Stevens wanted to insert the word 'citizens' as used in the Constitution to mean 'all persons born in the United States or naturalized, except Indians.' However, you changed the word 'citizen' to 'person.' Is that true.

"So…we were merely decreeing what had been decreed in the Fifth Amendment, that the Amendment was meant to protect all persons artificial and natural. All the committee members understood that, and that was an intent in the Fourteenth to preserve such rights. In fact, at the time of ratification, individuals and joint stock companies were appealing for congressional and administrative protection, and that was our purpose. And yes, give me that document so I may read it aloud: '…the Fourteenth Amendment operates upon associations of individuals, that is to say corporations, as well as upon individuals singly. The word used to denote those embraced in the amendment, is 'persons.' This word…has been held to embrace artificial persons as well as natural persons. Law-givers…of the highest authority, have so fixed immemorially the scope of this term.'

Conkling haughtily commented: "Now, who can argue with that!? Come now, it is time to hear the official affirmation of my argument in this Santa Clara matter."

"But Mr. Conkling, you go on for 50 more pages in your oral argument?"

"Well, after all, I am Roscoe Conkling!"