When the Beards' book was widely read in the early 1930s, it gave names and faces to the villains who had turned control of America over to what were then called the "Robber Barons" of industry.
Conkling, Bingham, and Justice Waite were all dead by the time of the Great Depression, and all judged guilty by the American public of pulling off the biggest con in the history of the new republic.
The firestorm of indignation that swept the country helped set the stage for Franklin D. Roosevelt's New Deal, using legislative means and packing the Supreme Court to turn back the corporate takeover - at least in part - and returning to average working citizens some of the rights and benefits they felt had been stolen from them in 1886.
It was widely accepted that Conkling and Bingham had pulled off this trick successfully, purposefully saying "person" instead of "natural person" or "citizen" when they helped write the Fourteenth Amendment, and corporate personhood was a fait accompli. It was done, and couldn't be undone. The Supreme Court, confronted with the reality of the language of the Fourteenth Amendment, had been forced to recognize that corporations were persons under the US Constitution because of the precedent of the 1886 Santa Clara case.
Senator Henry Cabot Lodge apparently ratified the coup on January 8, 1915, when he unwittingly promulgated Conkling's myth in a speech to the Senate about the 1882 San Mateo case cited above.
"In the case of San Mateo County against Southern Pacific Railroad," Lodge said, "Mr. Conkling introduced in his arguments excerpts from the Journal [of the Senate committee writing the Fourteenth Amendment], then unprinted, to show that the fourteenth amendment did not apply solely to Negroes, but applied to persons, real and artificial of any kind. It was owing to this, undoubtedly, that the [Supreme] Court extended it to corporations."
The journal Lodge referenced is the secret journal that never existed.
Nonetheless, it was a done deal, conventional wisdom suggested, and the Supreme Court had been forced to acknowledge the reality of corporate personhood - or, some suggested, had gone along with it because Waite and the other justices were corrupt stooges of the railroads but wielded the majority vote. In either case, it had been the intent of at least some of the legislators (Conkling and Bingham) who drafted the Fourteenth Amendment that corporations should have the constitutional rights of natural persons.
Or maybe not?
The Republican conspiracy theory collapses
In the 1960s, author, attorney, and legal historian Howard Jay Graham came across a previously unexamined treasure in the personal papers of Chief Justice Waite, which had been gathering dust among the J. C. Bancroft Davis Papers on file with the Library of Congress.
In Waite's private correspondences with Davis (his former Recorder of the Court's Decisions), Graham made a startling discovery: the entire thing had been a mistake.
What had vexed legal authorities for nearly eighty years was why Waite would say "The Court does not wish to hear argument"-" when the arguments were already finished. Further, why wasn't there any discussion of this explosive new doctrine of corporate personhood in the Court's ruling or in dissents? It was as if they said it, and then forgot they'd mentioned it. And complicating the situation further, if the Court had arrived at a huge Constitutional decision with sweeping implications, why did the decision say it was based on a technicality about fences?
It just didn't seem to add up.
Looking over Waite's personal papers, Graham found a note from J. C. Bancroft Davis, the Supreme Court's Reporter, to Waite. At one point in the arguments, Waite had apparently told Sanderson to get beyond his arguments that corporations are persons and get to the point of the Santa Clara County tax case. Court reporter Davis, apparently seeking to clarify that, wrote to Waite:
In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of opinion that it does.
