Corporations Today: Roscoe, Where Are You!?

So, why should we care about an 1886 Supreme Court decision today? Well, of course, we know now that there was no actual constitutional decision, but nevertheless, a decision was presumed from the headnotes, and barring any statute, the common law rule of stare decisis (let the decision stand) provided precedent for later decisions. [The photo is Justice Rufus Peckham from Lochner...]

This corporate personhood concept is a Gilded Age fiction, a term of art, if you will. This fiction was necessary for the continuation and triumph of capitalism as a logical development of the post Civil War/Reconstruction period. Extending rights of natural persons to artificial persons (corporations) encapsulates the opinion of Schneirov in the article that we read where he defines the Gilded Age as an era of social and economic instability.

This whole idea of the rights of corporations and those rights as protected under the Fourteenth Amendment is an abomination and bastardization of an amendment that had the obvious intention of protecting the rights of freed slaves. This is not my opinion, but the opinion of the Supreme Court in the Slaughterhouse Cases. True, this was a 5-4 opinion, but Justice Miller narrowly defined the Fourteenth Amendment to apply mainly to the protection of former slaves and could not be more broadly applied as Justice Field had intended (and would later succeed).

Eloquent jurists over the years have debased and twisted the Amendment for the causes of their times. It appears to me that the Fourteenth Amendment is a natural development of remedying the wrongs of slavery. The Thirteenth Amendment abrogated slavery, and the Fifteenth Amendment gave former slaves the right to vote. What other meaning could the Fourteenth Amendment have other than to secure the rights of constitutional protections to former slaves?

Okay, we learned in Lochner v. New York (1905) that a company's right to contract was protected under the Fourteenth Amendment, because a company (in this case, a bakery) was entitled to "due process" as guaranteed by the Amendment to "any person." It was determined from Santa Clara that a business enterprise is a person where the Fourteenth Amendment provides: "...nor shall any State deprive any person of life, liberty, or property, without due process of law." Lochner had the "right to free contract," and this right was implied by the "due process" clause. Well, I have to agree with Schneirov on this that this would be an example of social and economic instability. Interestingly, in his dissent opinion, Oliver Wendell Holmes said that the decision was "decided upon an economic theory which a large part of the country does not entertain." I wonder if Holmes is referring to a "regionalism" here, which is how some scholars define the Gilded Age - as opposed to Schierov's categorization of the Gilded Age as a phenomenon of capitalism. I do not know, but I think I prefer the latter. Attached is a photo of Justice Peckham, who delivered the 5-4 opinion of the Court.

In the decades after Santa Clara and Lochner, there were numerous cases where businesses succeeded in striking down laws that regulated the marketplace, and this includes anti-discrimination laws. All this was done under the "privileges and immunities" that were protected by "due process" under the Fourteenth Amendment. In later years, the Court invalidated many of FDR's new deal laws and regulations as violations of the Amendment. When FDR threatened the sanctum of the Supreme Court with "court packing," it was only then that the Court held back in its abrogation of "economic laws."

Modernly, there appears to be a shift in judicial philosophy regarding the 14th Amendment as it had developed from Santa Clara as a basis to apply protections to corporations and other nonpersons. I think the first legal formalization of the Santa Clara corporate personhood concept was in Lochner. Were those Gilded Age developments caused by the mechanics and oratory of Roscoe Conkling? I do not know.

Coming full circle from Santa Clara in a modern corporate tax case, Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77 (1938), Justice Hugo Black in his dissenting opinion said it best: "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection … No word in all this amendment gave any hint that its adoption would deprive the states of their long-recognized power to regulate corporations."

Today, the significance of Santa Clara, et al, is only historical. Modernly, the courts generally presume that laws are in compliance with the Fourteenth Amendment. Moreover, the Gilded Age sentiment of interpreting corporate hegenomy, Social Darwinism, and capitalism as protected rights under the Fourteenth Amendment are out of fashion. You certainly do not hear today of a corporation seeking protection under the "due process" clause; bankruptcy, maybe, but not "due process." Where is Roscoe Conkling today when corporations really need him?

The Santa Clara (1886) Case - A False Precedent

The Santa Clara decision, Santa Clara County v. Southern Pacific Railroad Company (1886)

We had the discussion in prior blogs that the Santa Clara case provided absolutely no legal basis for defining the corporation as a person. It was a biased court reporter for the Supreme Court, John Davis (former president of the Newburgh & New York Railroad) who inserted into the case introduction (headnotes) his own recollection of what Chief Justice Waite had said regarding the constitutional basis for protecting the rights of corporations as natural persons. Davis quotes Waite in the case headnotes:

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 opinion that it does.

And further, in the summary:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

There is a collection of Davis' personal papers in the National Archives that indicate Davis, after recording the proceedings, asked the Chief Justice if he had quoted him accurately: "...please let me know whether I correctly caught your comments and oblige [reply]."

Chief Justice Waite replied: "I think your mem. [memorandum] in the California Rail Road tax cases expresses with sufficient accuracy what was said before the arguments began [emphasis added]. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the Constitutional question in the decision" [emphasis added].

The Santa Clara case turned on the question of an allegedly unfair county tax imposed on the Southern Pacific Railroad that was not applied equally to all persons. Hence, the call for protection on the basis of equal protection under the Fourteenth Amendment, since corporations were, after all, "juristic persons." The case was settled and the constitutional issue of corporate personhood was never argued, considered, or given mention in the opinion of the case, YET the case has often been cited as the basis for the protection of the rights of corporations using the Fourteenth Amendment. Santa Clara has been referred to as a "landmark" case and a "turning point" for the extension of the equal protection clause to "abstract" persons, i.e., corporations. The lawyers for Southern Pacific used Conkling's argument for corporate personhood in their briefs, but the issue was not raised in argument and never considered by the court. Interestingly, the attorney for Santa Clara, Delphin Delmas, was quoted in Santa Clara as saying: "human rights for humans only." [This quotation is not found in the opinion, and I have not corroborated it by finding it in any extant brief].

Before I get into the question of why we should care about this case, I would like to briefly discuss just two (and there are more) issues that were pertinent in the Gilded Age debate over the Fourteenth Amendment. These issues were important, because the direction that the Amendment would take, as it pertains to human and corporate constitutional rights, hinges on strengths of the arguments. This is entirely a Supreme Court exercise, and merely reflects a changing balance of majority-minority opinion.

The "Race Theory" of the Fourteenth Amendment

Slaughterhouse Cases (1873): Fourteenth Amendment interpreted NARROWLY and in a procedural, rather than substantive, light where the Amendment was primarily created to protect freed slaves, NOT the white butchers of New Orleans seeking protection from State police powers (in this case, New Orleans created a corporation centralizing slaughtering operations to one area of the city, thereby restricting the businesses of independent butchers). Essentially, the Supreme Court held that the Fourteenth Amendment protected the rights of United States citizenship, not State citizenship, therefore police powers of the State are not restricted, therefore the State of Louisiana had not violated the citizenship rights of the New Orleans Butchers to "sustain their lives through labor," and the State had not violated the Fourteenth Amendment. The attorney representing the butchers, former Supreme Court Justice John Campbell (who resigned when the War broke out), attempted and failed to extend the protection of the Fourteenth Amendment beyond freed slaves to the "common law presumption" of the rights of the individual to pursue a lawful occupation.

For your viewing pleasure, please see the photo of Mr. Campbell (the gentleman in the suit; Davis is the court reporter to the left). Well, he looks like a slavocrat to me.

The "Corporate Personhood" Theory of the Fourteenth Amendment

Should the equal protection clause of the Fourteenth Amendment extend beyond the matter of protecting the rights of freed slaves, i.e., beyond race, to other non-race related matters, viz. the railroads, and the Southern Pacific Railroad in the matter before the 9th Circuit, Santa Clara County v. Southern Pacific Railroad (1882) [The case would reach the Supreme Court in 1885, and would be decided insignificantly in 1886]? Justice Stephen Field was on the Circuit at that time and wanted a mechanism to broaden the meaning of the Fourteenth Amendment to non-race related matters. Unfortunately, there was that precedent Slaughterhouse decision that kept the meaning narrow on the basis of keeping a centralized government reigned-in.

Justice Field wanted to expand the Slaughterhouse decision to include corporations. The question was how he would construe the Fourteenth Amendment to embrace the concept of protecting non-persons when the language of the Amendment is specific in the protection of "persons?"

Justice Field relied on the opinion of the eloquent attorney for San Mateo, John Pomeroy, who asserted that the Fourteenth Amendment protected the property rights not of "abstract" corporations, but the rights of the individual shareholders. Statutes that infringe upon the rights of corporations, infringe upon the rights of "natural persons." I think Pomeroy had an ingenious logic when he said: "Corporations cannot be separated from the natural persons who compose them." You know, this really sounds like Conkling; however, it was rumored that Conkling plagiarized his material, and Pomeroy may have been the principal. Indeed, Pomeroy goes on in his brief, "the truth cannot be evaded that for the purpose of protecting rights, the property of all businesses and trading corporations is the property of the individual corporators" [Emphasis added].

I could see Conkling taking Pomeroy's arguments and fabricating them into his own argument and arguing the same before the Supreme Court. After all, Conkling was the great orator, and he had the clout because he drafted the Amendment, so he must know its cryptic meaning. Conkling's argument won. This spectacle was aptly summarized in prior blogs.

Evidently, Fields found the impetus that he was looking for to expand the meaning of the Fourteenth Amendment:

"[W]e think that it is well established … that whenever a provision of the constitution, or of a law, guarantees to persons the enjoyment of property, or affords to them means for its protection, or prohibits legislation injuriously affecting it, the benefits of the provision extend to corporations, and that the courts will always look beyond the name of the artificial being to the individuals whom it represents."

[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!"

That Gilded Rascal

Wow, what an opportunity to have been transported in time, yet still be connected to the internet. I can do double-duty by researching the past, as well as living it. What an opportunity for corroboration. So, here’s a bit of history of the man, Roscoe Conkling, one of the draftees of the 14th Amendment, and champion of corporate (railroad) rights, and of course, the rights of former slaves. A befitting figure of the Gilded Age, and from whom one may get a consummate and accurate portrait of the era.
If any one individual personified the well-rounded gentleman of the Gilded Age, it must be that rascal Roscoe Conkling. A man once described in the papers as the most “handsome” man in New York who had the “finest torso in public life.” Big in size and ego, arrogant, aristocratic, intellectual and articulate, born in privilege, but with Radical Republican ideas. Conkling was referred to as the “Curled Darling of Utica,” with a large boxer physique (of the time, of course). A contemporary political adversary, James Blaine, matched wits with Conkling, referring to Conkling’s “haughty disdain, his grandiloquent swell, his majestic, supereminent, overpowering, turkey-gobbler strut.”
Conkling was a contemporary of Lincoln, known for his gift of oratory in his public offices, but more for his erudite, yet perfidious arguments before the Supreme Court – a true lawyer’s lawyer. Indeed, non-charismatic lawyers often hired Conkling to plead their main arguments before the most obstinate of courts. Indeed, Mr. Conkling, the son of a Judge whose family home was regularly visited by the who’s who of polite political society, including but not limited to ex-presidents such as John Quincy Adams and Martin Van Buren. Indeed, Conkling had the connections to be appointed district attorney of Albany at the age of only 20.
Conkling advanced his political career, elected to Mayor of Utica, twice elected to Congress, and finally to the Senate, where he once physically defended the leading Radical Republican Thaddeus Stevens – that sarcastic and outrageous congressman who chaired the powerful House Ways and Means Committee (the guys who create our tax codes, among other things). Conkling was a hard-line Reconstruction “Radical” Republican before and after the War, and was a leading Stalwart Republican (pro-patronage republican rather than the “half-breed” republicans in favor of civil service reform). Conkling was a member of the famous “committee of 15” who drafted the Fourteenth Amendment, of which he will later say to have kept that private journal. This mysterious journal would be used in court to clarify the alleged intention of the 14th Amendment.
Conkling was the dominant force in New York politics and controlled absolutely the patronage system, where he embodied the “spoils system.” To get a prominent position in New York, you needed Roscoe Conkling. A personal friend of Ulysses Grant, he turned down a Chief Justice of the Supreme Court position, and will later turn down another confirmed justice nomination, stating that there was just no “patronage” in those positions. When Garfield became president as a half-breed republican determined to reform the spoils system, Conkling so incensed, he resigned his senate seat along with another Stalwart, Thomas Platt. Conkling to his chagrin was not re-nominated by the New York legislature. In an odd irony, Garfield was assassinated by that crazy Stalwart, Guiteau, two weeks later
For all of Conkling’s flaws, one can say that he always unabashedly spoke his mind. He was not a hypocrite, and stayed true to his Radical and Stalwart principles regardless of loss of political position or prestigious and powerful titles. He supported Lincoln, and supported the good ol’ boys spoils system. He spoke his principles without hedging or fear of political reprisal. A politician with these qualities was rare then, as it is now. Conkling would die at age 59 in 1888. This writer has read different versions of his death: He either died from complications from a brain tumor, or from a cold he caught in a Manhattan blizzard while walking to his law office at 10 Wall Street. I remember seeing a statue of him in Madison Square Park in Manhattan. I was reading about the statue’s inception in 1893. There was to be a statue of a “great” American at each corner of Union Square Park in Manhattan; however, the statue committee decided that Conkling was just not important enough, so he was relegated to the less prestigious Madison Square. If any life deserves a screenplay, that would confidently Roscoe Conkling. Now, on to one of his main “contributions” to American jurisprudence – his arguments for corporate personhood, and we can now get it from the proverbial horse’s mouth.

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!