A warrant with a maker. The Fourteenth Amendment was drafted for the freedmen, claimed for corporations by a forgery in 1882 and a court reporter's headnote in 1886, and made true afterward by being relied on.
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The doctrine has a paper trail, and the paper trail runs the wrong way.
An amendment written to protect people who had just been property became, within twenty years, the principal constitutional shield of concentrated capital. That is not a drift in interpretation. Two documented acts stand at the hinge, both dated, both attributed, and neither of them a judicial decision.
And the record was not falsified afterward. It was manufactured at the moment of entry and then left alone, which is the harder operation and the one that holds.
A forged warrant does not have to survive scrutiny. It has to be relied on before anyone scrutinizes it, because reliance is what converts a document into a rule.
[See THE FORGED WARRANT · THE OFFICIAL RECORD]
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WHAT THE DRAFTERS SAID
The 1866 congressional record is not ambiguous and it is not sparse. Every statement in the debates refers to freedmen, to Black men, to persons of color. No reference to corporations appears anywhere in the drafting history.
John Bingham, whom Hugo Black later called the Madison of the Fourteenth Amendment, said Section 1 would protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction. Thaddeus Stevens, floor manager in the House, said the amendment would ensure that whatever law protects the white man shall afford equal protection to the black man, and would stop the states from continuing to crush to death the hated freedmen.
Jacob Howard delivered the primary Senate speech on 23 May 1866, carried on the front pages of the New York Times and the New York Herald: the amendment would give to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.
The Joint Committee on Reconstruction worked against the Black Codes of 1865 and 1866, which barred African Americans from juries, from testifying, from voting. That was the material in front of them.
The distinction between citizen in the Privileges or Immunities Clause and person in the Due Process and Equal Protection Clauses was deliberate, and what it was for was non-citizen human beings. Corporations were not discussed, not contemplated, and not mentioned.
[See DRED SCOTT · THE SLAUGHTER-HOUSE CASES]
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CONKLING'S MUSTY OLD JOURNAL
The first claim that corporations were intended beneficiaries came sixteen years after ratification.
Roscoe Conkling, arguing San Mateo County v. Southern Pacific Railroad before the Supreme Court in 1882, was the last surviving member of the drafting committee. He produced what he called a musty old journal, said to show that the committee had deliberately changed citizen to person in order to reach corporations, and told the Court that at the time of ratification, individuals and joint stock companies were appealing for protection against discriminating state and local taxes.
Howard Jay Graham examined the claim and published the result in the Yale Law Journal in 1938, and later in Everyman's Constitution. He called it a deliberate, brazen forgery. The language was never changed from citizen to person, the committee having used person throughout. The journal offered no evidence of any intent regarding corporations. No drafter other than Conkling ever said or implied it. Corporate rights were raised in no ratification debate and no state convention.
Adam Winkler, in We the Corporations, put the finding in one line: not a single framer of the Fourteenth Amendment other than Roscoe Conkling ever said or implied that business corporations were protected too.
Conkling was not mistaken about the record. He was the only living man positioned to testify about it, and he testified for his railroad clients.
[See DISQUALIFIED TESTIMONY · THE CAPTURED WORD]
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THE HEADNOTE
Santa Clara County v. Southern Pacific Railroad came four years later, in 1886, and is cited as the foundation. The opinion is not the foundation. The opinion, by Justice Harlan, decided a narrow tax question about fence assessments, and said so: these questions belong to a class which this court should not decide unless their determination is essential to the disposal of the case. It made no ruling on whether corporations are persons.
The court reporter was J. C. Bancroft Davis, formerly president of the Newburgh and New York Railway Company. His headnote reads: the defendant corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment.
The correspondence survives, found by C. Peter Magrath in the Library of Congress. On 26 May 1886 Davis wrote to Chief Justice Waite asking whether he had correctly caught the Chief Justice's pre-argument remarks. Waite answered that the memorandum expressed with sufficient accuracy what was said before the argument began, and left it to Davis to decide whether anything need be said about it in the report, inasmuch as we avoided meeting the constitutional question in the decision.
The Court itself later held, in United States v. Detroit Timber & Lumber Co. in 1906, that headnotes are not the work of the Court but simply the work of the Reporter, and carry no legal standing.
Waite wrote down that the Court had avoided the question. Davis opened his headnote with the answer to it.
[See THE RECEIPT · THE GRAMMAR OF ADMISSIBILITY]
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THE OBJECTION THAT HAS TO BE MET
The strongest objection to everything above is that it proves less than it appears to, and the objection is correct as far as it goes.
Corporate constitutional personhood does not rest on a headnote today and has not for a long time. Within three years of Santa Clara the Court reached the question in reasoned opinions, in Pembina Consolidated Silver Mining in 1888 and in Minneapolis and St. Louis Railway v. Beckwith in 1889, and held corporations to be persons for due process purposes with argument attached. Anyone who says the whole edifice is a court reporter's clerical fraud can be answered with two citations.
So the claim has to be stated at the strength it will bear, and at that strength it is worse rather than better.
The forgery and the headnote did not have to survive scrutiny. They had to be there first. A manufactured entry in the record was relied on, and the reliance was then reasoned about, and the reasoning cited the reliance, and within a few years there was a doctrine standing on its own opinions with the manufacture underneath and no longer load-bearing. Nothing needed to be hidden. Nothing needed to be destroyed.
This is the retcon at the register of precedent: the later reading does not falsify the earlier record, it absorbs the record's past into the present meaning, so that the moment of taking has no date and no hand and there is nothing left on the page to lift out.
[See THE RETCON · SUPERSESSION]
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THE COUNT
Charles Wallace Collins counted the cases in 1912. Of the Fourteenth Amendment cases the Supreme Court heard between 1868 and 1912, three hundred and twelve were brought by corporations and twenty-eight concerned African Americans, who were, in his words, the prime and paramount consideration for the adoption of the amendment.
Hugo Black cited those figures dissenting in Connecticut General Life Insurance Co. v. Johnson in 1938: I do not believe the word person in the Fourteenth Amendment includes corporations. In the first fifty years after adoption, he wrote, less than one half of one percent of the cases protected the amendment's intended beneficiaries and more than fifty percent extended its benefits to corporations. William O. Douglas joined him in Wheeling Steel Corp. v. Glander in 1949: there was no history, logic, or reason given to support that view, and the purpose of the amendment was to protect human rights, primarily the rights of a race which had just won its freedom.
The dates sit in one column and read as a single motion. 1876, the compromise ends Reconstruction. 1877, the troops withdraw. 1883, the Civil Rights Cases gut federal enforcement. 1886, Santa Clara. 1896, Plessy.
The amendment was not neglected while its beneficiaries were abandoned. It was in continuous heavy use, for someone else, in the same years and often in the same courtrooms.
[See MERIT · THE LEDGER]
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THE READJUSTERS
Virginia between 1879 and 1883 held what the historian Jane Dailey calls the most successful interracial political alliance in the postemancipation South.
The Readjuster coalition, roughly a hundred and ten thousand Black voters and sixty-five thousand white ones, led by the former Confederate general and railroad man William Mahone, won both legislative houses, the governorship and both Senate seats. They abolished the poll tax and the whipping post. Black teachers went from four hundred and fifteen to fifteen hundred and eighty-eight, Black enrollment from thirty-six thousand to ninety-one thousand, and Virginia Normal and Collegiate Institute was founded.
They also ended the railroads' practice of assessing their own property for tax, collected the delinquent taxes, and cut a state debt contracted largely for railroad building. That is the part of the record that is usually told separately from the rest of it.
On 3 November 1883, three days before the election, armed white men fired into a crowd in Danville and killed at least four Black men, then patrolled the streets for days. The Democrats swept the state. No Republican won statewide office in Virginia between 1881 and 1969.
The coalition that taxed the railroads and the coalition that was destroyed by racial violence were the same coalition, and the two facts about it are one fact.
[See THE PLANTATION · PRECARITY]
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THE WAGE
Du Bois supplied the mechanism in Black Reconstruction in America in 1935. White workers received what he called a sort of public and psychological wage in exchange for abandoning solidarity with Black workers: access to public facilities, better schools, deference, favorable treatment by courts and police. The wage was cultivated by parties who, he wrote, drove such a wedge between the white and black workers that there probably are not today in the world two groups of workers with practically identical interests who hate and fear each other so deeply.
And he refused the racial reading of the ending. It was not, then, race and culture calling out of the South in 1876. It was property and privilege, shrieking to its kind, and privilege and property heard and recognized the voice of its own. A revolution inspired by property, and not a race war.
The constitutional capture and the psychological wage are one instrument at two registers: the amendment redirected upward, and the compensation for the redirection paid downward in standing rather than in money.
[See THE SELF-MADE MAN · THE TAXPAYER]
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WHAT ORIGINALISM CANNOT DO WITH THIS
The doctrine is defended by a method that cannot reach it, and the method's own practitioners have said so.
John Paul Stevens, dissenting at length in Citizens United in 2010, wrote that the Court enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, and that it seems implausible the Framers believed the freedom of speech would extend equally to all corporate speakers.
Asked directly by Ralph Nader how corporate constitutional rights squared with originalism, Antonin Scalia said he had not researched it, and that the doctrine was so deeply embedded that the status quo was unlikely to be reversed.
That is the admission, and it is not about corporations. A method that reaches back to 1868 for the meaning of every other word in the amendment, and declines to reach back for this one because the result is settled, is not a method. It is a settlement wearing a method's name.
[See THE FORGED WARRANT OF THE BODY CORPORATE · CONQUEST THEOLOGY]
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This entry makes no proposal. What follows from a forgery is not a program, and a diagnosis converted into a campaign acquires a vendor.
What the record holds is this. The amendment was written for people who had been property. A man who was there testified falsely about what it meant, for clients. A reporter entered as holding what the Chief Justice had written down that the Court avoided deciding. Both entries were relied on rather than examined, the reliance was reasoned about, and the reasoning became the ground.
The freedmen it was written for got twenty-eight cases.
[See THE ESTABLISHMENT · THE TRESPASS]
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
