“Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.”

Nothing in the jurisprudence of original understanding limits words to the particular evil that the enacting authority sought to address. The Reconstruction Congress was, of course, primarily concerned with the freedmen, and for good reason. However, Congress used the inclusive word “persons,” and to say this excluded everyone else is preposterous. The amendment was only eighteen years old when the Supreme Court applied it to the Chinese without a single dissenting vote. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). From the summary of argument in the L.Ed., it does not appear that the respondent even bothered to argue the amendment did not apply.