“No state shall... deprive any person of life, liberty, or property without due process of law, nor deny to any person... the equal protection of the laws.”
SECTION 1, FOURTEENTH AMENDMENT
In an argument before the Supreme Court of the United States in 18821 Roscoe Conkling, a former member of the Joint Congressional Committee which in 1866 drafted the Fourteenth Amendment, produced for the first time the manuscript journal of the Committee, and by means of extensive quotations and pointed comment conveyed the impression that he and his colleagues in drafting the due process and equal protection clauses intentionally used the word “person” in order to include corporations “at the time the Fourteenth Amendment was ratified,” he declared, “individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes. One instance was that of an express company, whose stock was owned largely by citizens of the State of New York...” The unmistakable inference was that the Joint Committee had taken cognizance of these appeals and had drafted its text with particular regard for corporations.
Coming from a man who had twice declined a seat on the Supreme Bench,2 who spoke from first hand knowledge, and who submitted a manuscript record in support of his stand, so dramatic an argument could not fail to make a profound impression. Within the next few years the Supreme Court began broadening its interpretation of the Fourteenth Amendment, and early in 1886 it unanimously affirmed Conkling’s proposition, namely that corporations were “persons” within the meaning of the equal protection clause.3 It is literally true therefore that Roscoe Conkling’s argument sounded the death knell of the narrow “Negro-race theory” of the Fourteenth Amendment expounded by Justice Miller in the Slaughter House cases. By doing this it cleared the way for the modern development of due process of law and the corresponding expansion of the Court’s discretionary powers over social and economic legislation. Viewed in perspective, the argument is one of the landmarks in American constitutional history, an important turning point in our social and economic development.
Conkling’s argument has figured prominently in historical writing since 1914 when B.B. Kendrick unearthed and edited the manuscript copy of the Journal which Conkling used in court.4 Checking the record in the light of his major propositions, historians became convinced of the fundamental truth of Conkling’s story. Repeatedly, it appeared from the Journal, the Joint Committee had distinguished in its drafts in the use of the words “person” and “citizen.”5 Under no circumstances could the terms have been confused. Moreover, as the Committee had persistently used the term “person” in those clauses which applied to political rights, the force of this distinction seemed plain: corporations as artificial persons, had indeed been among the intended beneficiaries of the Fourteenth Amendment. Convinced on this point, historians developed an interesting theory: the drafting of the Fourteenth Amendment had assumed something of the character of a conspiracy, with the due process and equal protection clauses inserted as double entendres. Laboring ostensibly in the interests of the freedmen and of the “loyal white citizens of the South,” the astute Republican lawyers who made up the majority of the Committee had intentionally used language which gave corporations and business interests generally increased judicial protection as against State legislatures.
What appeared to be corroboration for this viewpoint was presently found in the speeches6 of Representative John A. Bingham, the Ohio Congressman and railroad lawyer who almost alone of the members of the Joint Committee had been responsible for the phraseology of Section One. Bingham, it appeared both from the Journal and the debates on the floor of the House, had at all times shown a zealous determination to secure to “all persons” everywhere “equal protection in the rights of property.”7 Moreover, he had evinced an extraordinary preference for the due process clause and had developed and defended it phraseology in most vigorous fashion. As no other member of the Joint Committee, or of Congress, gave evidence of a similar desire to protect property rights, and none manifested his partiality for the due process clause, it seemed logical to conclude that Bingham’s purposes had in fact been far more subtle and comprehensive than was ever appreciated at the time. Bingham had been the master—mind who “put over” this draft upon an unsuspecting country. The fact that he had tried and failed to secure the inclusion of a “just compensation” clause in Section One as still another restraint upon the States’ powers over property,8 and the fact that in 1871,9 five years after the event, he declared he had framed the section “letter for letter and syllable for syllable” merely served to strengthen these suspicions.
Impressed by this cumulative evidence, and alive to its historical implications, Charles A. and Mary R. Beard, in 1927, developed in their Rise of American Civilization what is still, a decade later, the most precise statement of the conspiracy theory. Undocumented, and with conclusions implicit rather than explicit, the Beards’ thesis was this: Bingham, “a shrewd... and successful railroad lawyer,… familiar with the possibilities of jurisprudence,” had had much broader purposes than his colleagues. Whereas they were “bent on establishing the rights of Negroes,” he was “determined to take in the whole range of national economy.” Toward this end he had drafted the due process and equal protection clauses and forced them upon the Committee by persistent efforts. Quoting Bingham’s speeches and Conkling’s argument in support of the view that corporations had been among the intended beneficiaries of the draft, the authors concluded:10
“In this spirit, Republican lawmakers restored to the Constitution the protection for property which Jacksonian judges had whittled away and made it more sweeping in its scope by forbidding states, in blanket terms, to deprive any person of life, liberty, or property without due process of law. By a few words skillfully chosen every act of every state and local government which touched adversely the rights of persons and property was made subject to review and liable to annulment by the Supreme Court at Washington.”
Thus, while the Beards nowhere expressly state that Bingham was guilty of a form of conspiracy, this is none the less a fair inference from their account, and it is one which has repeatedly been drawn. Numerous writers,11 accepting the Beards’ account and popularizing it, have supplied more explicit interpretations. Thus, E.S. Bates, in his Story of Congress, declares that Bingham and Conkling in inserting the due process phraseology, “smuggled” into the Fourteenth Amendment “a capitalist joker.”12
Despite widespread acceptance and a prestige which derives from the Beards’ sponsorship, the conspiracy theory has not gone unchallenged. Numerous writers have expressed varying degrees of disapproval and skepticism.13 Constitutional historians in particular are reluctant to accept its implications, although they, no more than the sponsoring school of social historians, have as yet presented their case in documented detail. One thus observes the curious paradox of a theory which cuts across the whole realm of American constitutional and economic history and which is itself a subject for increasing speculation and controversy, yet which has developed piecemeal, without systematic formulation or criticism.
How extraordinary certain aspects of this situation are may be judged from the fact that one is now left wholly in the dark as to the nature and degree of conspiratorial intent imputed to Bingham and his colleagues. Is one to believe, for example, that these men determined from the first to devise phraseology which included corporations? Or simply that they later perceived it possible, or advantageous, to do so? Again, what type of protection did the framers contemplate within the meanings of the due process phrase? Protection in the modern substantive sense? Or simply protection against arbitrary procedure? If simply the latter was intended, the “conspiracy” was scarcely worthy of the name, for to have used “person” and “due process” in this manner would have been natural for any well informed lawyer of 1866, whatever may be said of the understanding of the layman. On the other hand, to have applied due process substantively with regard to corporations in 1866 would have been a thoroughly revolutionary step, even for a lawyer. For this reason it is a substantive usage that is most consistent with the theory. In both of these issues the implied difference in motive is great; and likewise the implied ambiguity in the theory. The matter of motive and intent would seem to be too fundamental an element of conspiracy to leave in so unsatisfactory a state.
It is the purpose of this article to re-examine the conspiracy theory and to determine, insofar as possible, the extent to which it meets certain essential conditions.