by Evelyn Atkinson
Abstract
For over a hundred years, the “conspiracy theory” of the Fourteenth Amendment has haunted legal scholarship. First articulated in a seminal case involving corporate constitutional personhood, the conspiracy theory posits that the drafters of the Fourteenth Amendment were motivated by economic interests in addition to, or even more than, the rights of Black Americans. In recent decades scholars have dismissed the conspiracy theory as “fanciful.” Yet as this article reveals, the conspiracy theory had a basis in fact: the primary drafter of the Fourteenth Amendment, John A. Bingham, undeniably had corporations in mind as well as Black Americans when he included the protection of the “privileges and immunities” of citizenship in the Amendment. Reading the history of antislavery activism together with the history of corporate personhood, this article interrogates the legal and philosophical landscape of the moment in order to uncover why, for Bingham and other advocates of corporate citizenship, the rights of corporations were as deserving of protection as the rights of Black Americans. It reveals that for decades prior to the drafting of the Fourteenth Amendment, questions involving the ability of both Black persons and corporations to claim the privileges and immunities of citizenship in the context of interstate mobility had dominated legal and public debate, compelling courts, individuals, and communities to confront the nature of American citizenship, federalism, and fundamental rights.