(January 8, 2017) In this lecture, Dr. Eric Foner applauds Ohio Congressman John Bingham for authoring the 14th Amendment with language that did not merely provide a list of civil rights, but affirmed the general principle that all “persons” are entitled to the same rights. His wording enabled future generations to provide for equality in ways often not anticipated in 1867 when the Amendment was written. Foner cites public school integration and gay rights as two examples.
Even though New York Senator Roscoe Conkling was also an architect of the Amendment, Foner instead singles him out with praise for officially presenting newly elected black Mississippi Senator Blanch Bruce to the Senate in 1875. By custom, the professor explains, Mississippi’s white senior Senator James Alcorn should have presented Bruce but declined. (Foner does not mention that Alcorn funded a black university presently known as Alcorn State. Instead the audience is left to assume that Alcorn was a garden variety Southern racist whereas he was actually the state’s first Republican Reconstruction governor and had endorsed the 14th Amendment.)
Although a strong supporter of the 14th Amendment, the professor laments that the Supreme Court issued rulings in the 1880s enabling the Amendment to be used as a tool to protect corporations from regulation instead of blacks from civil rights violations. The rulings basically defined corporations as “persons” thereby entitling them to the same rights as any “person” under the Amendment. Foner’s remarks are excerpted below:
Egregiously, the 14th Amendment has been used to create out of whole cloth a constitutional right to corporate personhood…There is no evidence that in 1866 [sic] that anybody thought [the Amendment] had anything to do with corporate personhood. That was a concept created in the 1880s by the Supreme Court and was long used to protect corporations from regulations by state governments.
Apparently, Dr. Foner does not realize that both Bingham and Conkling later said they had always intended for the 14th Amendment to protect corporations, as well as people, from “the encroachment of sate legislatures.” Bingham admitted a few years after authoring the document that he wrote the “due process” clause “word for word” to protect property rights as well as civil rights. When former senator Roscoe Conkling represented the Southern Pacific Railroad in 1882 before the Supreme Court with objections to California taxes, he argued that as an architect of the Amendment he labored to word it in a way to protect both private property rights and black civil rights.*
Although some historians conclude that the ex post facto statements of both Bingham and Conkling were lies, the fact that they spoke them should compel the professor to convert the men from heroes into villains in Foner-land since they “egregiously” corrupted the 14th Amendment.
* Kenneth Stampp The Era of Reconstruction, 137; Louis Hacker & Benjamin Kendrick, The United States Since 1865: 4th Edition, 167