It becomes increasingly apparent that the conspiracy theory can hardly attain satisfactory status until precise knowledge is had of what the framers themselves conceived to be the meaning of the language they employed. Conkling’s argument and the circumstantial record of the Journal prove inconclusive and therefore inadequate on this point. It remains to assay the evidence which is found in the congressional debates of 1866.
The impressive thing here, of course, is the utter lack of contemporaneous discussion of these clauses which are today considered all-important. Hundreds of pages of speeches in the Congressional Globe contain only the scantiest reference to due process and equal protection.49 Two opposing explanations will perhaps be offered in this connection. Critics of the conspiracy theory will doubtless hold that dearth of discussion indicates a universal understanding that these clauses were to protect the freemen in their civil rights. Sponsors, on the other hand, may argue that silence indicates a universal misunderstanding of what were in fact the “real” purposes of the framers.
It is desirable because of this double-edged character of the argument from silence, and because of the peculiar dangers inherent in its use as a proof of “conspiracy,” that we digress a moment at this point in order to avoid later confusion.
So long as intent or design is one major element in any conspiracy, and so long as silence or secrecy is the other, it readily follows that if the framers of the Fourteenth Amendment intended to benefit corporations, and yet failed to make known their intentions—which otherwise were not suspected—then the framers were guilty of conspiracy. In short, intent plus silence in a situation of this kind equals conspiracy. When this formula is applied to the present case, it follows further, since the fact of silence is not questioned,50 that the actual intent of the drafters to afford corporations relief is the only point at issue. To prove intent is to prove the conspiracy theory. But it is precisely at this point that confusion arises. Since silence, along with intent, is one of the major elements of conspiracy, there is a natural tendency to use it not only to prove. The theory, but also, by a confusion of purposes and ideas, to prove intent. This is done generally in the roundabout fashion of assuming that silence is evidence of secrecy, and that secrecy in turn is evidence of intent. It is hardly necessary to point out that this is a chronic form of circular reasoning which amounts practically to using the argument from silence as a screen to mask the assumption of what one is really trying to prove. Logically, it is a pitfall which one must take particular care to avoid. Intent to aid corporations must be proved by satisfactory evidence and not derived or assumed from the mere fact of silence.
Turning now to an examination of the evidence in the Globe, it can be said that the speeches of Bingham51 alone are really suggestive and worthy of analysis, although even they are found deficient in essential particulars. Stripping Bingham’s arguments down to their vital points, one may list the following, particularly in their cumulative effect, as more or less favorable to the conspiracy theory:
1. Bingham deemed it to be a grave weakness that the entire Bill of Rights of the Federal Constitution and more particularly the due process clause of the Fifth Amendment applied only as a restraint upon Congress. Holding citizenship to be national and denying, therefore, that the States had ever rightfully been able to interfere with the privileges of national citizenship—among which were fundamental rights of life, liberty and property52—Bingham’s first consideration was to devise an amendment which would remedy this defect.53 It can be said with assurance that to do this was the general purpose of all various drafts, including the early forms which provided “Congress shall have power to... secure to all persons in every State equal protection in the rights of life, liberty and property.” A desire to curb the States, to nationalize fundamental rights, and to do this using the phraseology of the Fifth Amendment, were the hubs around which Bingham’s thinking revolved.54
2. Bingham was emphatic at times in pointing out that the Fourteenth Amendment did not apply merely to the Southern States and to the Negroes. “It is due to the Committee,” he declared on one occasion55 when asked whether his draft “aimed simply and purely toward the protection of American citizens of African descent,” “that I say it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them by confiscation, and to protect them also against banishment... it is to apply to other States also that have in their constitutions and laws today provisions in direct violation of every principle of our Constitution.” Asked at this point whether he referred to “the State of Indiana,”56 Bingham replied,57 “I do not know; it may be so. It applies unquestionably to the State of Oregon.” These allusions are obviously in harmony with some explicit and definite purpose.
3. Likewise suggestive of catholic motive, and of one somewhat in line with Conkling’s claims, is the fact that Bingham on one occasion58 sounded out congressional sentiment in favor of an “added... provision that no State in this union shall ever lay one cent of tax upon the property or head of any loyal man for the purpose of paying tribute and pensions to those who rendered service in the... atrocious rebellion... I ask the gentlemen to consider that, as your Constitution stands today, there is no power, express or implied, in this Government to limit or restrain the general power of taxation in the States.”
4. At one point in his argument Bingham referred,59 though very casually, to the decision of the United States Supreme Court in “the great Mississippi case of Slaughter and another.” Unquestionably this reference was to the slavery case of Groves v. Slaughter,60 decided by the Court in 1841. As such, it is a reference of great potential importance for the reason that Justice Baldwin, an ardent defender of slavery, anxious to place that institution beyond the control of both the States and the Federal Government, had here, for the first time, used the due process clause of the Fifth Amendment as a means of restraining Congress’ power over slaves in interstate commerce.61 Baldwin’s opinion thus applied due process in a definitely substantive sense, and it anticipated by fifteen years Chief Justice Taney’s similar application in the case of Dred Scott.
A fact which seems to heighten the importance of Bingham’s mention of Groves v. Slaughter is that in a later part of his dictum Justice Baldwin had used the comity clause (Article IV, Section 2) as the means of withdrawing the slave traffic from State control.62 In short, Baldwin used both of the identical clauses which Bingham and the Joint Committee eventually included in Section One. The question necessarily arises, therefore, whether Bingham may not have taken his cue from Baldwin—whether, as a means of protecting all property, including of course the property of (former) slaves, he did not deliberately build upon and strengthen the No Man’s Land which Baldwin originally had created for the protection of property in slaves. For a Radical Republican to have done this would have constituted a great tactical triumph, in any event, and one can readily see how, if Bingham actually sought to protect foreign corporations in the manner Conkling intimated, the stroke would have amounted to positive genius. For, clearly, in addition to strengthening the barriers of that No Man’s Land—according to Justice Baldwin at least—existed in the original Constitution with regard to property per se. Bingham created still another No Man’s Land which surrounded and protected the “persons” who owned property. He did this simply by making the due process clause—one half of Baldwin’s original system of protection—itself a restraint upon both the Federal Government and the States. “Persons” in consequence were thus secured in their rights of property, against both Congress and local legislatures.
What is one to conclude from the discovery that John A. Bingham, author and sponsor of the equal protection—due process phraseology, (1) aimed to secure greater protection in the fundamental rights of property; (2) intended to curb all states, including Oregon; (3) desired an “added provision” limiting the taxing power; (4) cited a case wherein substantive use had been made of due process to protect property rights; (5) even used the identical clauses in Section One which Justice Baldwin had used in this early substantive opinion?
The first point to note in answering this question is that only when one places the most favorable interpretation upon each individual part of the evidence does the whole, taken collectively, suggest that Bingham may have had the purpose which Conkling intimated in his argument. A moment’s examination, however, reveals numerous points at which the evidence is inadequate to support these separate conclusions. Three in particular may be cited:
1. Bingham simply declared himself in favor of an additional provision limiting the taxing power. One cannot determine from his speeches whether he regarded his own draft as having the effect of limitation or whether he simply meant to sound out sentiment in favor of a draft which would have this effect.63 Obviously one must not infer the former motive from silence alone, without other evidence.
2. Bingham mentioned no particular opinion when referring to Groves v. Slaughter; he simply inferred that the case had decided that “under the Constitution the personal property of a citizen follows its owner, and is entitled to be protected in the State into which he goes.” While these words might be construed as a reference t the comity clause portion of the Baldwin dictum,64 the conservative course is to draw no conclusion from such meager circumstances.
3. It will be noted that Bingham justified his draft on the grounds that it protected “loyal white citizens” and “any loyal man” as well as Negroes. In short, his references are all to natural “persons,” never to artificial ones.65 Granted that a hidden motive would undoubtedly have impelled secrecy with reference to corporations, it is still true, as we have already pointed out, that secrecy is not here admissible as a proof of intent.
The chain of circumstances from which intent might be deduced thus being broken at several points, it is plain that the evidence in Bingham’s speeches is not adequate proof of the conspiracy theory. It remains to linger a moment at this point, however, in order to note several features of his argument.
First of these features is a very important implication of his statement that his phraseology was designed to protect, not merely Negroes, but “thousands... of loyal white citizens of the United States whose property, by State legislation, has been wrested from them by confiscation, and to protect them also against banishment. It is to apply to other States also that have in their constitutions and laws today provisions in direct violation of every principle of our Constitution.”66
The fact that intrinsically this statement suggests that natural persons were the only objects of Bingham’s solicitude must not be permitted to obscure the significance of the type of legislation which had offended him. Laws enacted during and after the Rebellion by the eleven “rebel” and apparently by a few “other States,” laws which inflicted “banishment” and “confiscation” upon “loyal white citizens” were the particular objects of his ire. Such laws, in his judgment, violated “every principle of our Constitution” and in giving Congress power to “secure to all persons equal protection in the rights of life, liberty and property,” he doubtless meant to extirpate these abuses.
The point which we here wish to stress is that this motivation practically assures—so long as Bingham appears to have associated “equal protection” with “due process of law”—that he had a substantive conception of due process. It is hardly conceivable, at any rate, that a Radical Republican, outraged by acts of rebel confiscation—which he regarded simultaneously as denials of equal protection and due process of law—objected to this confiscatory legislation simply because it denied such traditional requirements of due process as fair notice and hearing. Inherently the circumstances suggest that it was the substance of such legislation, not merely its effects upon the procedural rights of the accused, that one invoking the clause would have attacked. Stated otherwise, circumstances point to a “natural rights” usage, and a natural rights usage is here obviously a substantive one.67
By a somewhat indirect and unexpected turn, one thus discovers evidence which indicates that Bingham in 1866 probably did have a substantive conception of due process of law, and did, therefore, regard the guarantee in a manner which was potentially of benefit to corporations. Paradoxically, however, the importance of this discovery is minimized, so far as its bearing on the conspiracy theory is concerned, by its own implications. Bingham used due process in a natural rights sense. He read into the clause his personal conceptions of right and justice. But the very circumstances under which he did this point to the existence of an infense and specific motivation which may very well have so absorbed his energies and interests that he gave little or no thought to the anxiliary uses of his phraseology. If one adopts this view, Bingham was a Radical Republican consumed by a determination to thwart those “rebels” and Democrats who were inclined to vent their animosity by discriminating against Negroes, loyalists, “carpetbaggers,” etc. He was a crusading idealist, and it is an open question whether he was not, for this reason alone, one of the persons least likely to ponder the needs and constitutional status of corporations. A zealot is rarely so ambidextrous.
It is a merit of this simple discovery relating to Bingham’s purposes that it leads to an hypothesis which can be readily and profitably checked. If Bingham regarded due process of law in a natural rights—substantive sense; if he conceived certain laws enacted by rebel and “other States” as violating “every principle of our Constitution,” then conceivably, he may have outlined his views in earlier speeches in Congress. Particularly so long as the problems dealt with in these Reconstruction debates are known to have extended far back in the pre-war controversies over slavery, it is logical to expect that Bingham, a highly articulate leader who served in Congress almost continuously beginning in 1854, expressed himself freely on these matters, and that his speeches thus record the evolution and content of his thinking. Obviously it is an easy matter to inspect his speeches with an eye for clues to the origin, development, and significance of his concepts of due process and equal protection.
Bearing in mind the mystery of the declaration that his draft applied “unquestionably to the State of Oregon,” and bearing in mind also the ambiguity of his allusions to the “great Mississippi case of Slaughter and another,” and to the need for curbing the taxing power of the States, we can now make an investigation of this kind.