lems. The Fourteenth Amendment, uncertain in its scope from the day of its adoption, remains uncertain. Under the present rules of procedure there is no escape from the dilemma.

CHAPTER IX

THE CORPORATIONS AND THE TWILIGHT ZONE

THE great problems facing the nation when the Fourteenth Amendment was being adopted were social and political rather than economic in the narrower sense of the word. The debates in Congress, the discussions in the various State legislatures, and the political campaigns before the people in 1866 and 1868 clearly reveal the motives underlying the making of that provision. It was a part of the great problem of reconstruction and had for its immediate purpose social and political readjustment in the South according to the theories of the party in power. It was a war amendment in that it attempted to conserve the results of the victory.

In so far as the strictly economic element was present, it was a matter of individual property rights - the protection of the weak and the oppressed. The object of protection was primarily the negro race. It was also intended to give protection to such of those from the North who had moved into the South immediately after the War. There was never any fear in the minds of the people of the North that their own States could not or would not protect their citizens in the common

enjoyment of those rights and privileges which were the sacred heritages of all people of English stock. It never entered the public discussion, for instance, that the State of Massachusetts, or that the State of New York, would deprive persons within their bounds of life, liberty, or property without due process of law, or deny to them the equal protection of the laws.

There were no great corporation problems before the nation forty-five years ago. There were, of course, corporations and great activity in railroad building, but these economic movements were then in their infancy as compared with their modern status. The motive of the people for adopting the Fourteenth Amendment as a part of the Constitution of the United States was unrelated to the corporations.1

The actual operation of the Amendment reveals many interesting and some startling facts. The accompanying chart shows the distribution of litigation under the Amendment since its adoption to the beginning of the October Term, 1911. In 1886 the Supreme Court declared a corporation to be a person within the meaning of the equal protection clause of the Amendment. This was in the case of

1 "The Fourteenth Amendment was framed to protect the negroes from oppression by the whites, not to protect corporations from oppression by the legislature. It is doubtful whether a single one of the members of Congress who voted for it had any conception that it would touch the question of corporate regulation at all."—Arthur T. Hadley in the Independent, Vol. LXIV, pp. 836-837.

2 See Chart No. V, p. 138.

Santa Clara County v. The Southern Pacific Railroad Co. The question of the violation of the Fourteenth Amendment was presented to the Court, but the decision was made upon other grounds. However, the following preliminary announcement was made by Mr. Chief Justice Waite: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

In 1888, in Pembina Mining Co. v. Pennsylvania,2 this announcement was affirmed as a part of the decision. In 1889, in Minneapolis & St. L. R. R. Co. v. Beckwith, the Supreme Court of the United States for the first time squarely and positively decided that a corporation was a person within the meaning of both the "due process of law" and the "equal protection of the laws" clauses of the Fourteenth Amendment. These cases, considered together as one opinion, mark one of the most important developments in our constitutional history. In an address in 1908 before the University of Berlin, President Hadley of Yale University declared them to rank with the Dartmouth College Case in their restraining effect upon the States

1 118 U. S. 394. Three cases were argued as one. One other railroad was involved.

2 125 U. S. 181.

3 129 U. S. 26.

in relation to the corporations. They opened the door for organized capital to contest whatever laws of the State it considered disadvantageous.

It will be noticed that out of six hundred and four opinions handed down under the Amendment, three hundred and twelve have involved a corporation as the principal party. Since 1889 litigation has greatly increased under the Amendment, averaging more than thirty cases a year for the last thirteen years. Corporations as parties seeking relief have increased in number until now more than two-thirds of all litigation under the Amendment is instituted in their behalf. On the other hand, questions involving the negro race, although never large, have dwindled down to an average of about one case each year.

Nearly all the important cases under the Amendment are in some way concerned with the question of State regulation of the corporations. During the life of the Amendment there have been fifty-five cases decided adversely to the States. Thirty-nine of these instances of Federal intervention have been in favor of a corporation; that is to say, about seventy-eight per cent. These include attempted regulation, by the several States involved, of telephone and gas rates; certain phases of the insurance business; railroad improvements, railroad profits, and freight and passenger rates; taxation and charter fees for public service companies; anti-trust laws; and the conservation of natural resources. It will thus be seen that the Amendment