The "Conspiracy Theory" of the Fourteenth Amendment

Abstract

Committeewhich drafted the Fourteenth Amendment.In 1882, during the course of an argument before the Supreme Court of the United States, Conkling 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.A lively controversy has since been waged over the historical foundation for Conkling's statement.Social historians have contended that the equal protection and due process clauses were designed to take in "the whole range of national economy;" that John A. Bingham, the member of the Joint Committee chiefly responsible for the phraseology of Section One, "smuggled" these "cabalistic" clauses into a measure ostensibly drafted to protect the Negro race.Others have been skeptical of this view, and have pointed out that it is pyramided on three propositions: (1) that the framers had a sub- stantive conception of due process, (2) that as early as 1866 there existed a number of constitutional cases in which due process had been invoked in a substantive sense.bycorporations, (3) that the framers knew of these early cases and realized the corporate potentialities of their draft, which were not suspected by the ratifiers.In an earlier article,' the writer demonstrated the essentially false and misleading character of Conkling's argument insofar as it was based on the Journal of the Joint Committee.And although it was shown that