Weaponizing Originalism Against Corporate Personhood
The 14th Amendment's protection of corporations rests on documented fraud, not legitimate constitutional interpretation. Originalist methodology, properly applied, would exclude corporations from "personhood" protections—exposing over 140 years of corporate constitutional rights as a judicial fabrication contradicting the Framers' explicit intent to protect formerly enslaved people. This report documents the drafting history, the evidence of fraud, and the legal scholarship demonstrating that corporate personhood violates original understanding and must be reversed.
The drafters intended "person" to mean freed slaves, never corporations
The historical record is unambiguous. Every statement in the 1866 Congressional debates refers to freedmen, "Black men," or "persons of color"—not a single reference to corporations appears anywhere in the drafting history. Representative John Bingham, whom Justice Hugo Black called "the Madison of the Fourteenth Amendment," explained that 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." Senator Thaddeus Stevens, the House floor manager, was explicit: the Amendment would ensure "whatever law protects the white man shall afford 'equal' protection to the black man" and prevent states from continuing to "crush to death the hated freedmen."
Senator Jacob Howard, who delivered the primary Senate speech on May 23, 1866 (published on the front pages of the New York Times and New York Herald), declared 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, described by Bingham's biographer Gerard Magliocca as a "Second Constitutional Convention," focused entirely on post-Civil War racial justice. Its response to the Black Codes of 1865-66—which prohibited African Americans from serving on juries, testifying in court, and voting—drove every deliberation. Corporations were never discussed, contemplated, or even mentioned.
The Amendment's distinction between "citizen" (in the Privileges or Immunities Clause) and "person" (in the Due Process and Equal Protection Clauses) was intentional but served to protect non-citizen human beings such as immigrants—not artificial legal entities. John Bingham's natural rights philosophy, rooted in the Declaration of Independence's promise of equality, extended protection to all natural persons within American jurisdiction regardless of citizenship status.
Roscoe Conkling's "deliberate, brazen forgery"
The first claim that corporations were intended beneficiaries came 16 years after ratification when former Senator Roscoe Conkling argued before the Supreme Court in San Mateo County v. Southern Pacific Railroad (1882). Conkling, the last surviving member of the drafting committee, produced what he called a "musty old journal" purporting to show the Committee had deliberately changed "citizen" to "person" to include corporations. He testified: "At the time the Fourteenth Amendment was ratified, individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes."
This was a lie. Howard Jay Graham, described as "the pre-eminent scholar on the Fourteenth Amendment" and later recruited by the NAACP to write a brief for Brown v. Board of Education, examined Conkling's claims and found them to be "a deliberate, brazen forgery." Graham's groundbreaking research, published in the Yale Law Journal in 1938 ("The 'Conspiracy Theory' of the Fourteenth Amendment") and later compiled in his book Everyman's Constitution (1968), demonstrated that:
- The language was never changed from "citizen" to "person"—the drafting committee consistently used "person" throughout
- The journal offered no evidence of any intent to protect corporations
- Not a single drafter other than Conkling ever said or implied corporations were meant to be protected
- Corporate rights were not raised in any public ratification debates or state ratifying conventions
As UCLA Law Professor Adam Winkler documented in We the Corporations (2018), a National Book Award finalist: "History shows that not a single framer of the 14th Amendment other than Roscoe Conkling ever said or implied that business corporations were protected, too." Conkling exploited his unique position as the sole surviving drafter to fabricate a history that served his railroad clients' interests.
J.C. Bancroft Davis manufactured precedent from a headnote
Four years later, Santa Clara County v. Southern Pacific Railroad (1886) became the foundation of corporate personhood—through another act of deception. The actual Court opinion, written by Justice John Marshall Harlan, ruled only on a narrow tax technicality about fence assessments. Justice Harlan explicitly stated: "These questions belong to a class which this court should not decide unless their determination is essential to the disposal of the case. As the judgment can be sustained upon this ground, it is not necessary to consider any other questions raised by the pleadings." The opinion made no mention of whether corporations were "persons" under the 14th Amendment.
Yet Court Reporter J.C. Bancroft Davis—a former president of the Newburgh and New York Railway Company—inserted the following in his headnote: "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."
The correspondence between Davis and Chief Justice Waite, discovered by biographer C. Peter Magrath in the Library of Congress, is damning. On May 26, 1886, Davis wrote asking whether he "correctly caught" Waite's pre-argument remarks about corporate personhood. Waite responded: "I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. 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."
Despite Waite's explicit acknowledgment that the Court "avoided" the constitutional question, Davis began his headnote with precisely that constitutional claim. As the Supreme Court later ruled in United States v. Detroit Timber & Lumber Co. (1906), headnotes are "not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision" and have no legal standing. There never was a decision on corporate personhood—yet Davis's fabrication has been cited as precedent for 140 years.
The Amendment was captured while its intended beneficiaries were abandoned
The statistical disparity reveals the scope of this constitutional hijacking. Charles Wallace Collins documented in his 1912 study The Fourteenth Amendment and the States that of over 600 14th Amendment cases heard by the Supreme Court between 1868 and 1912, 312 involved corporations as complaining parties while only 28 concerned African Americans—though African Americans were "the prime and paramount consideration for the adoption of the Fourteenth Amendment."
Justice Hugo Black cited these statistics in his famous dissent in Connecticut General Life Insurance Co. v. Johnson (1938): "I do not believe the word 'person' in the Fourteenth Amendment includes corporations." Black explained that in the first fifty years after adoption, "less than one-half of 1 percent" of cases protected the Amendment's intended beneficiaries while "more than 50 percent" extended benefits to corporations. Justice William O. Douglas joined Black in Wheeling Steel Corp. v. Glander (1949), writing: "There was no history, logic, or reason given to support that view... The purpose of the Amendment was to protect human rights—primarily the rights of a race which had just won its freedom."
This capture occurred precisely as Reconstruction protections for Black Americans were being dismantled. The chronology is devastating:
- 1876: The Compromise ends Reconstruction
- 1877: Federal troops withdraw from the South
- 1879-1883: The Readjuster Movement rises and falls in Virginia
- 1883: The Civil Rights Cases gut federal civil rights enforcement
- 1886: Santa Clara establishes corporate "personhood"
- 1896: Plessy v. Ferguson enshrines "separate but equal"
The Lochner era (1897-1937) saw courts broadly reading the Constitution to protect business interests while refusing to protect African Americans—upholding Jim Crow while simultaneously invalidating minimum wage laws, collective bargaining, and manufacturing restrictions.
The Readjuster defeat and Du Bois's analysis illuminate the mechanism
The Virginia Readjuster Party (1879-1883) was, according to historian Jane Dailey, "the most successful interracial political alliance in the postemancipation South." Led by former Confederate general and railroad entrepreneur William Mahone, this coalition of approximately 110,000 Black and 65,000 white voters won majorities in both legislative houses, the governorship, and both U.S. Senate seats. They abolished the poll tax and whipping post, dramatically expanded public education (Black teachers increased from 415 to 1,588; Black enrollment grew from 36,000 to 91,000), and established Virginia Normal and Collegiate Institute.
Critically, the Readjusters directly challenged railroad and corporate interests by ending railroads' practice of self-assessment for taxes, collecting delinquent taxes, and reducing state debt contracted largely for railroad infrastructure. The movement was destroyed through deliberate racial violence. On November 3, 1883—three days before elections—armed white men fired into a crowd in Danville, killing at least four Black men. Armed white men then patrolled streets for days, deterring Black voters. Democrats swept to large majorities. No Republican won statewide office in Virginia between 1881 and 1969.
W.E.B. Du Bois's Black Reconstruction in America (1935) provides the theoretical framework for understanding this history. Du Bois argued that white workers received "a sort of public and psychological wage" in exchange for abandoning class solidarity with Black workers—access to public facilities, better schools, deference, favorable treatment by courts and police. This "wage" was deliberately cultivated by elites who "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."
Du Bois characterized the end of Reconstruction as "a revolution inspired by property, and not a race war": "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." Northern capitalists abandoned Reconstruction because they needed Southern labor to return to work cheaply and feared that successful land redistribution might inspire Northern workers to make similar demands. The Compromise of 1876, Du Bois wrote, left capital "with a control of labor greater than in any modern industrial state in civilized lands."
The corporate capture of the 14th Amendment represented the legal consolidation of this counter-revolution. Constitutional protections designed for the formerly enslaved were redirected to shield corporations from democratic regulation while the Court simultaneously upheld Jim Crow.
Legal scholarship demonstrates originalism supports exclusion
A substantial body of legal scholarship argues that consistent application of originalist methodology would exclude corporations from 14th Amendment protections. Justice John Paul Stevens' 90-page dissent in Citizens United v. FEC (2010) is the most thorough originalist argument against corporate constitutional rights in judicial history:
"The Court enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings."
"In light of these background practices and understandings, it seems to me implausible that the Framers believed 'the freedom of speech' would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections."
Ian Speir's article "Corporations, the Original Understanding, and the Problem of Power" (Georgetown Journal of Law & Public Policy, 2012) argues that for founding-era Americans, "the corporation presented what might be called a problem of power"—there was "a recognized need both to delimit legislative authority over the creation and subsequent regulation of corporations and to limit corporate influence in private and public life."
Thom Hartmann's Unequal Protection (2002, revised 2010) documents the Founders' hostility to corporations, noting that the Boston Tea Party was actually a protest against the British East India Company. Corporate personhood "was never formally enacted by any branch of the US government"—it arose from a court reporter's unofficial headnote which has "no legal validity." "Nowhere in the Constitution is there any mention of the words 'corporation' or 'company.' The word 'person' meant to the Framers in those early days a human being."
Even when asked directly, self-proclaimed originalists have failed to defend corporate personhood on originalist grounds. When Ralph Nader challenged Justice Antonin Scalia on how corporate constitutional rights could be squared with originalism, Scalia admitted he "hadn't researched it" and acknowledged that, like Social Security (which Scalia believed unconstitutional), corporate personhood was "so deeply embedded... that it is unlikely the status quo could be reversed." This admission reveals the fundamental tension: originalists have never actually defended corporate personhood on originalist grounds because the evidence is against them.
The originalist argument can be constructed from six foundations
Based on this research, a comprehensive originalist case against corporate personhood proceeds as follows:
Textual argument: The 14th Amendment protects "persons"—in 1868, this meant natural human beings, not artificial legal entities. The distinction between "natural persons" and "artificial persons" was well-established in 18th and 19th century law.
Original intent: The drafters intended to protect freed slaves. There is no evidence any drafter—except Conkling's fraudulent claim—intended to include corporations. Every statement in the Congressional debates references freedmen, Black Americans, or human beings.
Original understanding: The public meaning of "person" in 1868 did not include corporations. In Insurance Co. v. City of New Orleans (1870), a federal court rejected corporate personhood claims "in light of the history of the submission by Congress, and the adoption by the states... so fresh in all minds as to need no rehearsal."
Structural argument: Corporations are creatures of state law. The 14th Amendment's purpose was to limit state power over individuals—not to limit states' power over their own legal creations. The notion that corporations had constitutional rights against the states that created them would have been "implausible" to the Framers.
Historical practice: For the first century of the Republic, corporations were extensively regulated without constitutional concern. The explosion of corporate rights came only after Santa Clara's fraudulent headnote.
The Conkling fraud as dispositive: The entire foundation of corporate 14th Amendment rights rests on what Howard Jay Graham definitively proved was "a deliberate, brazen forgery." This should be dispositive for any honest originalist analysis.
Overturning Santa Clara's legacy requires a constitutional amendment
The current Supreme Court has been expanding rather than limiting corporate rights. Citizens United v. FEC (2010) extended First Amendment political speech rights; Burwell v. Hobby Lobby (2014) extended religious expression rights to closely held corporations; 303 Creative v. Elenis (2023) granted businesses constitutional rights to refuse service based on expressive speech. The 6-3 conservative majority shows no appetite for reconsidering 140 years of precedent.
Legal scholars and advocacy organizations agree that a constitutional amendment is the only reliable path to permanently overturn corporate personhood. The We the People Amendment (HJR 54), sponsored by Representative Pramila Jayapal and reintroduced in February 2025, states: "The rights and privileges protected and extended by the Constitution of the United States are the rights and privileges of natural persons only. An artificial entity, such as a corporation... shall have no rights under the Constitution."
Currently, 22 states have passed resolutions calling for such an amendment, and over 700 cities and towns have passed local resolutions. Move to Amend, founded the day Citizens United was decided, has built a coalition of 500,000+ supporters. Amendment ratification requires two-thirds approval from both houses of Congress and ratification by three-fourths of states (38)—a high bar, but achievable given that 75%+ of Americans support campaign spending limits in polling.
Conclusion: Originalism demands the reversal of a fabrication
The historical evidence is incontrovertible. The 14th Amendment's drafters—Bingham, Stevens, Howard, and their colleagues—intended "person" to mean natural human beings, specifically freed slaves suffering under discriminatory Black Codes. Corporations were never discussed, never contemplated, never mentioned in any debate. The doctrine of corporate personhood rests on Roscoe Conkling's documented fraud in 1882 and J.C. Bancroft Davis's deceptive headnote in 1886—not on any legitimate constitutional interpretation or judicial decision.
The same period that saw corporate capture of constitutional protections saw the violent suppression of interracial democratic coalitions like the Readjusters and the systematic abandonment of the Amendment's intended beneficiaries. As Du Bois recognized, this was not coincidence but consequence—a counter-revolution of property and privilege that redirected constitutional guarantees meant for the formerly enslaved toward the protection of concentrated capital.
Originalism, honestly applied, cannot sustain this inversion. The original meaning of "person" excluded corporations. The original intent was to protect freedmen. The original understanding, as courts recognized immediately after ratification, did not encompass artificial legal entities. The historical practice involved extensive regulation of corporations without constitutional concern. The doctrine was established through fraud, not law.
For originalists who claim fidelity to the Constitution's original meaning, corporate personhood presents an unavoidable contradiction. Either they must acknowledge that corporations were never intended to be constitutional "persons" and advocate for reversing 140 years of fabricated precedent—or they must admit their originalism is selective, applied only when it produces ideologically preferred outcomes. There is no intellectually honest middle ground.
