Roscoe Conkling and the Fourteenth Amendment

William F. Swindler


Had Senator Leland Stanford, Sr. of California not retained his colleague, Senator Roscoe Conkling of New York, to argue two cases for the Southern Pacific Railroad in the Supreme Court in 1882, the constitutional history of the United States for the ensuing half-century might have been substantially different. What made this case —and Conkling's argument—even more paradoxical was the fact that the key argument was never addressed by the Court, since the case was dismissed as moot, and in subsequent cases was accepted as "settled principle" without further discussion. Yet Conkling's contention, that the word "person" in the Fourteenth Amendment was intended by the draftsmen to include "legal persons" (i.e., corporations), helped to move the Court away from the original purpose of the Amendment—to guarantee the rights of the new freedmen—in favor of a new interstate economic structure, upon which judicial construction focused until the middle of the 1930s and beyond. Indeed, the "original meaning" of the Amendment did not resume its primary position in constitutional law until after the desegregation cases in the 1960s.

There had been a growing interest within the Court, since the Slaughterhouse Cases in 1873 (just five years after the Amendment had been adopted), in developing the due process clause in the Amendment into something of broad substantive usefulness in the nationwide corporate enterprises that had burgeoned after the Civil War. In that case, a 5-4 majority upheld a Louisiana grant of monopoly licenses for slaughterhouses by narrowly defining the rights of individuals to be protected by the Amendment; the dissenters, led by Justice Stephen F Field, contended that the Amendment's due process clause should prevent the states from depriving any person of his property rights without strict compliance with tested legal procedures. Ten years later, in the Civil Rights Cases, the Court greatly restricted the subject to which the "original meaning" of the Amendment was intended to apply, by holding that only "state action" denying a freedman his rights would be subject to judicial review,

The Court was thus ideologically prepared to accept the argument which Conkling advanced; the first "Southern Pacific" case, in fact, had been argued before the decision in the Civil Rights Cases, although it was not disposed of by the Court until three years later. Conkling, who by then had been in Congress for almost a quarter of a century (he served in the House of Representatives from 1859 to 1867, and in the Senate from 1867 to 1881), might have been on the bench himself, rather than appearing before it. In the course of a bitter party struggle in the Senate, his nomination as a justice had been confirmed (39-21) in March 1882, but he had declined the position.

The force of Conkling's argument on the broad meaning of the Fourteenth Amendment came from his membership on the Joint Committee of Fifteen which had drafted the Amendment in Congress in 1867-68. Citing the then unpublished report of the committee in his appellate brief, the ex-Senator from New York categorically declared that the legislative purpose of selecting the language which appeared in the Amendment was to accomplish this very object. Subsequent publication of the committee records suggested upon a careful reading that Conkling may have overstated the facts; but the controlling fact was that he said what the Court, at this time in national history, wanted to hear. The Court's opinion dismissing the case of San Mateo County v. Southern Pacific Railroad was handed down on December 21, 1885. The following spring, on May 10, 1886, in a companion case (Santa Clara County v. Southern Pacific Railroad), Chief Justice Waite laconically stated: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution . . . applies to these corporations. We are all of opinion that it does."

Thus Conkling's argument in the earlier case was accepted sub silentio, and one of the pivotal constitutional concepts in modern American history made its appearance with virtually no fanfare. For half a century thereafter, critics of the Court insisted upon a "conspiracy theory" of construction of the opening clause of the Fourteenth Amendment, to convert it to the best interests of the new interstate economy which was to develop virtually without legal guidelines between the 1870s and the 1920s. It was not the "Southern Pacific" cases alone, of course, that developed this "substantive due process" doctrine of the Fourteenth Amendment into a convenient tool of rampant free enterprise; but the temper of the age, the personalities involved both in the Senate and in California politics, and the legislative history of the Amendment itself, combined to establish the new constitutional regime.

Roscoe Conkling has all but dropped from familiar American history, but in his day he was the embodiment of the nineteenth century individualist. Beginning law practice in Utica, N.Y in 1850, his mastery of the popular "spread eagle" stump oratory of the time won him election to the House of Representatives in less than a decade. Although critics like James G. Blame referred to his "turkey gobbler strut" through the halls of Congress, he was a force to be reckoned with in the cataclysmic years of the Civil War and Reconstruction. He became Republican boss of New York State in 1867 when he was elected to the Senate and thus dominated the control of Federal patronage in his state. The following year his political ideal, Ulysses S. Grant, was elected President. It was a sign of Conkling's own standing with Grant that the President should offer him, five years later, the Chief Justiceship as successor to Salmon P. Chase, who died in May 1873.
Grant showed himself to be something of a student of political history when he wrote to Conkling on November 8 that his "own preference went to you at once," but that he had wanted to wait until Congress was in session because "a Chief Justice should never be subjected to the mortification of a rejection"--a remote possibility, considering the administration dominance of the Senate. But there had been the record of rejection of the second Chief Justice, John Rutledge, in 1795, and the more recent frustration of John Tyler's efforts at Supreme Court appointments twenty years before (see "Robin Hood, Congress and the Court," YEARBOOK 1977), while his own nominations had not had smooth sailing. In 1870 the Senate had disregarded. its tradition of collegial courtesy by rejecting the nomination of Senator Ebenezer Hoar of Massachusetts, an advocate of reconciliation with the South, while virtually compelling the nomination of the former Cabinet nemesis of President Andrew Johnson, Edwin M. Stanton. (Only Stanton's fortuitous death, four days after his nomination, prevented this unequivocable Reconstructionist from ascending to the bench,)

Conkling declined Grant's offer of nomination on November 20. He knew his forte lay in the political rather than the judicial arena; but he also understood that the President, like other occupants of the White House before and since, was interested in finding sympathetic persons for the Court. In declining, Conkling urged that "your choice fall on another who, however else qualified, believes as man and lawyer, as I believe, in the measures you have upheld in war and in peace." Conkling obviously approved of Grant's "packing" of the Court, the previous year, to secure a majority for the reargued "legal tender" cases. This was 'made possible by Congress' cooperation in raising the Court membership back to nine, after it had been cut from ten to seven to deny Johnson the chance to fill any vacancies.

(Grant still had trouble with the vacant Chief Justiceship. Following Conkling's refusal of the offer of nomination, the President submitted the name of George Henry Williams, his attorney general and one-time chief justice of the Oregon Territory. The nomination provoked such a coast-to-coast protest against Williams' inept handling of government cases and his political spoilsmanship that the Senate Judiciary Committee, which had first compliantly reported favorably on the name, called back its report for reconsideration. Conkling himself was sufficiently disturbed by the choice to suggest a bill making the appointment of a Chief Justice the prerogative of the Senate—something that might have raised some very sticky constitutional issues in itself. But, in any event, the President got the message and withdrew Williams' name on January 8, 1874. He then nominated Caleb Cushing of Massachusetts, an able enough jurist; but the publication of an indiscrete wartime letter from Cushing to the President of the Confederacy, Jefferson Davis, compelled Grant to withdraw this nomination. He finally nominated, and won confirmation for, Morrison R. Waite--seven months after Chase's death.)

Political spoilsmanship in itself was not objectionable to Conkling—indeed, his control of the New York Republican machine rested upon it. But, he believed in choosing competent people for the available positions, and on that basis resisted the growing movement to establish and extend a national civil service law. When Rutherford B. Hayes became the front-runner for the next Presidential nomination, Conkling furiously opposed him because of his strong advocacy of civil service; and when Hayes encouraged his Secretary of the Treasury, John P. Sherman (later sponsor of the first federal anti-trust law) to investigate federal patronage in New York State, and eventually suspended Conkling's strong henchman, Chester A. Arthur, as collector of customs for New York City, the fight broke into the open. Although the White House rode out the storm, Conkling consolidated his position in New York by getting another of his henchmen, Alonzo B. Cornell, elected governor and yet another, Thomas C. Platt, elected to the other Senate seat. As for Arthur, that would be an even more dramatic story.

It was this political milieu in which Conkling, as a member of the special committee for the drafting of the Fourteenth Amendment, joined with other Reconstruction politicians to accomplish several purposes. The Amendment itself was to have an anomalous legislative and ratification record, presaging its complex and often furiously argued judicial construction in the ensuing century In June 1866, it passed both Houses of Congress and was formally submitted to the states on June 16. There were then thirty-seven states actually or nominally in the Union—depending on the status of several former members of the Confederacy so that twenty-eight states were necessary for ratification. Since the Reconstruction Congress made it a condition of readmission that the seceded states ratify the Amendment, there was strong legal question whether ratification could actually be coincident with readmission.

Strikingly enough, however, it was the resistance of two Northern states and one Western state which precipitated the final anomaly New Jersey had approved the Amendment on September 11, 1866, but the legislative session of February 20, 1868 "withdrew" the ratification; the governor vetoed the rescision, and the legislature thereupon overrode his veto. Ohio, which had ratified on January 14, 1867, rescinded this action the following year. Oregon, approving September 19, 1866, withdrew its approval on October 15, 1868, but by then Congress had already declared the Amendment validly ratified by the necessary majority On July 9, 1868, Secretary of State William H. Seward had certified the majority on condition that the actions of New Jersey and Ohio in rescinding ratification be declared invalid. The following day both houses of Congress so declared, by joint resolution, and on July 26 Seward certified the Amendment as a part of the Constitution.

This did not end the matter by any means. Conscious of the considerable cloud that rested on the ratification process, the Secretary of State continued to accept ratification from readmitted Southern states and add them to the totals, during and after July 1868. North Carolina's ratification had been received on July 2, Louisiana's on July 9 and Alabama's on July 13, while Georgia's came in the same week as Seward's formal certification, on July 21. The State Department subsequently added the ratifications of Virginia (October 8, 1869), Mississippi (January 17, 1870) and Texas (February 18, 1870). Thus, an aura of questionable legitimacy—which gave further credence to the "conspiracy theory" —settled upon this key Amendment and has added to its colorful history (In the high tide of the Progressive Movement, in the second decade of the twentieth century, five different proposals were introduced into Congress to repeal the Amendment.)

Although the Amendment as originally drafted was obviously intended to complement the Thirteenth, which had abolished slavery and would be further oriented in its fundamental purpose by the Fifteenth, which purported to insure manhood suffrage without regard to race, it was clear from the beginning that this was not the first concern of the committee which drafted it, or the Court which construed it in the ensuing years of the nineteenth century In terms of fundamental constitutional theory, as well as in economic effect, the generalized language of the opening section of the Amendment was what concerned such states as New Jersey, Ohio and Oregon: