WE THE CORPORATIONS
How American Businesses Won Their Civil Rights
Adam Winkler
Forthcoming, February 2018
Liveright/W.W. Norton & Company
Excerpt for the UNLV School of Law
Faculty Enrichment Talk
January 2018
2
Introduction
Are Corporations People?
In December 1882, Roscoe Conkling, a former senator and close confidant of President Chester
Arthur, appeared before the justices of the Supreme Court of the United States to argue that
corporations like his client, the Southern Pacific Railroad Company, were entitled to equal rights
under the Fourteenth Amendment. Although that provision of the Constitution said that no state
shall “deprive any person of life, liberty, or property, without due process of law” or “deny to any
person within its jurisdiction the equal protection of the laws,” Conkling insisted the amendment’s
drafters intended to cover business corporations too. Laws that referred to “persons” have “by long
and constant acceptance . . . been held to embrace artificial persons as well as natural persons,”
Conkling explained. This long-standing practice was well known to “the men who framed, the
Congress which proposed, and the people who through their Legislatures ratified the Fourteenth
Amendment.”
Conkling’s claim was remarkable. The Fourteenth Amendment had been adopted after the
Civil War to guarantee the rights of the freed slaves, not to protect corporations. Conkling,
however, had unusual credibility with the justices. For two decades, he had been a leader of the
Republican Party in Congress and was often said to be the most powerful man in Washington. He
had twice been nominated to the Supreme Court himself, most recently in the spring of the same
year he appeared on behalf of the Southern Pacific Railroad. The Senate voted to confirm him but
he declined the position, citing poverty from his career in public service—becoming the last person
to turn down a seat on the Supreme Court after having been confirmed. More than most lawyers
then, Conkling was considered by the justices to be their peer. And when it came to the history
surrounding the drafting of the Fourteenth Amendment, Conkling’s expertise was unparalleled. As
a member of Congress during Reconstruction, Conkling had been on the very committee that wrote
the amendment. If anyone could testify to the intent of the Fourteenth Amendment’s drafters, it
was Conkling, who was one himself.
To back up his improbable story, Conkling produced a musty, never-before-published
journal that
