2018 marks the 150th Anniversary of the Fourteenth Amendment and this is the second installment in which Sisyphus examines its import. The influence of the Amendment on the controversies and interpretations of the Constitution, the Bill of Rights, and the Supreme Court is an important and complex study. In this issue, we examine how the Fourteenth Amendment has been interpreted, how precedent is established, and the implications of its interpretation for future Supreme Court decisions.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. — CITIZENSHIP CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION
The Reconstruction Amendments–the thirteenth (banning slavery), the fourteenth (establishing due process), and the fifteenth (granting the right to vote to emancipated slaves)—were originally written by the legislature to address the challenges the post-Civil War government would face at the end of the war and presents national (rather than state) legislative solutions to the reintegration of four million native-born, former slaves into the body politic of the reformed nation. From the perspective of hindsight, the intention of the Reconstruction Amendments protects the most vulnerable in the society. In the subsequent one hundred and fifty years, however, the chips have not fallen that way.
HOW CORPORATIONS BECAME PERSONS
“…in cases like the notorious Plessy v. Ferguson (1896), [Supreme Court] justices refused to read the Constitution as protecting the rights of African-Americans, the real intended beneficiaries of the Fourteenth Amendment. Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African-Americans and an astonishing 312 cases on the rights of corporations,” says Adam Winkler. In fact, Winkler’s latest book We the Corporations: How American Businesses Won their Civil Rights chronicles one of the “most successful yet least known ‘civil rights’ movements in American history.”
By the time of the framing of the Constitution, there were 300 corporations in the thirteen colonies. Indeed, corporations are, in large part, an interwoven thread in the tapestry of American society, growth, and development. A series of lawsuits beginning in the nineteenth century and continuing unabated over the subsequent 130 years has produced a controversial legal precedent, granting corporations personhood and many of the same rights as human beings.
In Corporations Are Not People, Bill Moyers writes, “…in its founding era, Alexander Hamilton created a financial system for our infant republic that mixed subsidies, tariffs, and a central bank to establish a viable economy and sound public credit. James Madison and Thomas Jefferson warned Americans to beware of the political ambitions of that system’s managerial class. Madison feared that the ‘spirit of speculation’ would lead to ‘a government operating by corrupt influence, substituting the motive of private interest in the place of public duty.’ Jefferson hoped that ‘we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and [to] bid defiance to the laws of our country.’
“Andrew Jackson…vetoed the re-chartering of the Second Bank of the United States in the summer of 1832. …In his veto message, he said: ‘[This act] seems to be predicated on the erroneous idea that the present stockholders have a prescriptive right not only to the favor but to the bounty of the Government…It is to be regretted that the rich and powerful too often bend the acts of government to their own selfish purposes.’”
And Amazon, Facebook, Google, Apple, AT&T, and Comcast are not the first corporations with antitrust issues, just the most recent.
In 1881 California imposed a special tax on Leland Stanford’s Southern Pacific Railroad. Southern Pacific pushed back, “making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment… Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity,” states Winkler. The case made it to the Supreme Court. The head lawyer on Southern Pacific’s legal team was Roscoe Conklin. Conklin had the unique distinction of being the last living survivor of the Congressional drafting committee framing the Fourteenth Amendment. As such, Conklin claimed to have in his possession a journal containing the notes from the framing and claimed that the framers had changed the term “citizens” to “persons” in order to include corporations. It is important to note that Conklin had turned down appointments to the Supreme Court on two occasions, citing “poverty due to civil service,” so he was a well-known peer to the Court. But that did not stop him from lying. There was no such mention in the journal, the Court did not rule on the case, and it was dropped three years later.
However, Southern Pacific brought a new suit, without Conklin and his journal, but addressing the same legal arguments. The Court ruled on the second case, but the justices expressly declined to decide if corporations were people, resolving the case on other grounds. “The Supreme Court’s opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court’s opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J.C. Bancroft Davis, whose wildly inaccurate summary of the [second] Southern Pacific case said that the Court had ruled that ‘corporations are persons within … the Fourteenth Amendment.’ Whether his summary was an error or something more nefarious—Davis had once been the president of the Newburgh and New York Railway Company—will likely never be known.”
Enter Justice Stephen J. Field. Justice Field has the dubious infamy of being the only sitting justice ever arrested and the charge was murder, even though he was found innocent. But he was guilty of serious ethics violations. He was a friend of Leland Stanford and shared confidential SCOTUS briefs with the Southern Pacific legal team and saw an opportunity in Davis’s inaccurate summary. “A few years later, in an opinion in an unrelated case, Field wrote that ‘corporations are persons within the meaning’ of the Fourteenth Amendment. ‘It was so held in Santa Clara County v. Southern Pacific Railroad,’ explained Field, who knew very well that the Court had done no such thing.”
Subsequent SCOTUS decisions and the entire basis of the corporate rights movement are based on Field’s intentional lie intended to establish a faux precedent. Since the earliest days of the Republic, even though they have not been subject to systematic oppression, corporations have asked the Supreme Court to recognize their Constitutional rights. “Today,” writes Winkler, “corporations have nearly all the same rights as individuals: freedom of speech, freedom of the press, religious liberty, due process, equal protection, freedom from unreasonable searches and seizures, the right to counsel, the right against double jeopardy, and the right to trial by jury, among others.” The problem is that—in addition to decisions being based on faux precedent—affording “artificial persons” (corporations) the same rights as “natural persons” (human beings) creates an imbalance. Corporations (which do not have the ability to vote) can fund and unfairly influence elections. Corporations can commit crimes and not be sentenced to jail, only restitution. In effect, corporations become “super citizens” whose influence is greater than yours or mine, limited only by fiscal contingencies.
Clearly, this is an issue that did not start with Citizens United v. Federal Election Commission (2010) but has been around since almost the beginning of the nation. And the federal courts frequently side with the interests which can afford to continue to sue for more and greater legislative rights.
“… in 2006,” writes Kaitlin Sopoci-Belknap for Occupy.org and Move to Amend, “my community in northern California passed a ballot initiative to outlaw political contributions by outside corporations because of our experience with a giant timber company based in Texas that tried to recall our elected representatives for enforcing the law against them; and of Wal-Mart corporation trying to change our local zoning laws through purchasing a ballot initiative.
“Our community tried to protect ourselves, but two short years later in 2008 our ‘Humboldt County Ordinance to Protect Fair Elections and Local Democracy’ was overturned in federal court because it violated the so-called rights of corporations to influence our local elections.”
“…corporations need some constitutional protections,” opines Winkler. “As you know, there’s a constitutional movement to amend the Constitution, to add a 28th Amendment that would outlaw corporate rights, that would say corporations are not people, supported by a lot of big organizations–Move to Amend, Public Citizen, and others. I think that constitutional amendment would be a mistake, although I understand its motivations and desire to scale back corporate power. Corporations need basic protections for their property rights, otherwise the government could come and seize a corporation’s assets without paying just compensation. We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says, We want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And, of course, we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights; otherwise they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.”
“Wealth acquired under capitalism is in and of itself no enemy to democracy,” says Moyers in Corporations Are Not People, “but wealth armed with political power—power to choke off opportunities for others to rise, power to subvert public purposes and deny public needs—is a proven danger to the ‘general welfare’ proclaimed in the Preamble to the Constitution as one of the justifications of America’s existence.”
When the Supreme Court ruled that the free speech rights of the conservative non-profit Citizens United v. FEC were violated by the prohibition of airing Hilary: The Movie in response to Fahrenheit 9/11, the ruling included language that fundamentally altered campaign finance rules. By allowing corporations and billionaires to covertly fund political advertisements, it “elevated money itself above votes.” The public outcry over Citizens United is that it overturned established rules of campaign finance and allowed corporate front groups to covertly fund political ads, Senate and House campaigns. “The more you spend on politics,” says editor Jim Hightower, “the bigger your voice is in government, making the vast vaults of billionaires and corporations far superior to the voices of mere voters.”
“It is not a partisan issue; it is more than a political issue; it is a great moral issue,” said President Theodore Roosevelt (1901-09). “If we condone political theft, if we do not resent the kinds of wrong and injustice that injuriously affect the whole nation, not merely our democratic form of government but our civilization itself cannot endure.”
The corporate plutocracy has quietly encroached on the rights of the ordinary citizen throughout the nation’s history, but the Supreme Court decisions have typically been in the corridors of power. Although cases are public record, a majority of cases slip quietly through the legislative cracks. With the advent of televised high-profile Court cases, typically the more modern—Brown v. Board of Education, Roe v. Wade, Citizens United v. FEC, Bush v. Gore—the average person is able to more closely follow the decisions that impact their everyday lives. Finally, the populace is able to monitor the Supreme Court’s zeal to protect its corporate “super citizens,” to see in real-time decisions that affect their liberty.
Nowhere is this more glaring than Burwell v. Hobby Lobby (2014). In the passage of the Affordable Care Act, the department of Health and Human Services required employers to provide insurance to their employees (free of charge) that offered a full range of contraceptives. Failure to do so was intended to be met with fines. The Green family corporation (owners of Hobby Lobby) and the Hahn family corporation (owners of Conestoga) claimed that the law violated the religious freedom of the aforementioned corporations and the fines were burdensome. The corporations won by a narrow margin, SCOTUS determining that the right to contraceptive and reproductive health of the corporations’ employees infringed on the evangelical owners’ religious rights. In effect, the corporations in the case had a greater right than their employees and the intention of the ACA.
In a 5-4 opinion written by Justice Samuel Alito, the court held that as applied to closely held corporations, the Health and Human Services [HHS] regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act [RFRA]. Alito was joined by Chief Justice John Roberts, Antonin Scalia and Clarence Thomas. Justice Anthony Kennedy filed a concurring opinion.”
“In her dissent [Justice Ruth Bader] Ginsburg [joined on the merits by Justice Elena Kagan, Sonia Sotomayor, and Stephen Breyer], … worried about what other challenges might come next: ‘Reading the Act expansively, as the court does, raises a host of “Me, too” questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices? The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.’”
“Solicitor General Donald B. Verrilli Jr. told the justices at oral arguments that the challengers to the law were asking for a radical departure from precedent. In briefs he said, ‘The Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees.’”
Neoliberal ideologies that have permeated the courts and culture since Eisenhower and the establishment of the CIA under the Dulles brothers facilitate and reinforce policies that are favorable to business but detrimental to the “general welfare” of “we the people.” (The Brothers: John Foster Dulles, Allen Dulles, and Their Secret World War).
[The Fourteenth Amendment] shapes almost every issue we debate today: immigration, racial and gender equality, voter suppression, free speech, corporations and federal power. Its history destroys the notion that freedom grew steadily over time — that the founders bestowed liberty on white men, which was gradually extended to others. Rather, the amendment reinvented freedom. It established birthright citizenship, required ‘due process’ and ‘equal protection’ of the law for everyone, and put the federal government in the business of policing liberty. It removed race and ethnicity from the legal definition of American identity…
The 14th Amendment is felt by all of us, every day. If it did not invent freedom, it transformed and strengthened it, codifying a universal definition of individual rights and national identity that has been an example to the world. But the failings of those who wrote it linger on. Many of us still have not internalized the idea that an American can look like anyone in the world. Whoever calls the police on a peaceful, unarmed black or brown person is acting in a long, grim tradition. Complaints about the immigration of Muslims, Latin Americans or people from ‘shithole countries’ restate the original arguments against the 14th as opening the doors to ‘heathens’ and ‘pagans.’ Even debates over the intrusiveness of the federal government and the rights of corporations are rooted in the amendment that forever altered Washington’s role in American life.
— Pulitzer Prizewinning Author T.J. Stiles in an OpEd for the New York Times.
BIRTHRIGHT CITIZENSHIP
Which brings the discussion to birthright citizenship, the appointment of Justice Brett Kavanaugh to SCOTUS, and the current philosophy and ideology of the Supreme Court. The United States determines citizenship by the precedent of jus soli (right of the soil). “In most developed countries and in all of Europe, it is jus sanguinis (right of the blood) that determines a child’s citizenship. That is, defined by parental citizenship, not place of birth,” claims Ronald L. Trowbridge, chief of staff for former Chief Justice Warren Burger, in a recent OpEd for the San Francisco Chronicle.
There are 34 countries that practice jus soli, an important part of the 14th Amendment. President D.T. has suggested that he intends to sign an Executive Order to amend the Constitution and its protections.
“Many legal scholars have raised doubts that an executive order can change the birthright clause. More than a dozen constitutional law professors from the country’s leading law schools released a public statement immediately following Trump’s claims,” FactCheck relates.
“’As constitutional scholars who have studied the 14th Amendment, we write to say in no uncertain terms that (President Trump) is wrong. … There is no serious scholarly debate about whether a president can, through executive action, contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment,’ the statement reads.”
No State shall make or enforce any law which shall abridge the privileges or immunities of citizen of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
–Citizenship clause of the Fourteenth Amendment
“Americans shouldn’t casually dismiss the threat of a president or Congress redefining the Citizenship Clause to exclude disfavored groups. When political imperatives and racial hostility mix together, the Supreme Court cannot always be relied on to defend the Constitution’s guarantee of birthright citizenship,” Sam Erman and Neil Weare argue in a recent article for Slate. “Many assume that the overwhelming bipartisan consensus condemning the constitutionality of Trump’s plan to restrict birthright citizenship by executive order or congressional statute makes such plans dead on arrival. Simply put, the original understanding of the Citizenship Clause requires recognizing all born on U.S. soil as citizens (the only narrow exceptions are for the children of foreign diplomats, enemy soldiers, or certain Indian tribes). An unbroken line of Supreme Court precedent agrees. But America’s unsavory history of denying birthright citizenship in overseas U.S. territories offers a cautionary tale.
“The problem began in 1899, when President William McKinley oversaw annexation of Puerto Rico, Guam, and the Philippines from Spain. In step with prevailing racial attitudes, he judged the native inhabitants unfit to be American citizens. So he acted unilaterally to deny them citizenship,” says Slate. “McKinley’s view—like Trump’s—was clearly contrary to well-settled understandings of the Citizenship Clause.”
“…[T]he 14th Amendment’s ratification, the Supreme Court explained ‘put at rest’ the [prior] proposition that ‘[t]hose who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.’ …[T]he chairman of the Senate Judiciary Committee explained during congressional debates over the Citizenship Clause that it ‘refers to persons everywhere, whether in the States or in the Territories.’ (All emphasis ours.)”
However, rulings of the Supreme Court are subject to the ideologies and philosophies of the sitting Justices, determined less by “right” or “wrong” but rather by interpretation of the Constitution.
“In a 1901 case involving tariffs on oranges from Puerto Rico that had nothing to do with citizenship, key Justices nonetheless opined on the racial fitness of residents of the territories to be citizens. Justice Henry Billings Brown—the author of Plessy v. Ferguson—rejected birthright citizenship for territorial inhabitants’ ‘children thereafter born, whether savages or civilized.’ Justice Edward Douglas White expressed concern about ‘bestowal of citizenship on those absolutely unfit to receive it.’”
This is still an open, unresolved issue with potentially far-reaching consequences. In all the U.S. territories, inhabitants are expressly labeled as second-class Americans—they can’t vote in federal elections and federal policy requires that U.S. passports include a disclaimer in all capital letters that “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN” in clear violation of the Citizenship Clause of the Constitution.
On November 14, 2018, the Federal District Court in Utah heard its most recent birthright citizenship case. Fitisemanu v. United States argues that Congress does not have the power to redefine the Constitution’s guarantee of birthright citizenship to treat those born in U.S. territories as second-class Americans. The Citizenship Clause of the Fourteenth Amendment unequivocally guarantees citizenship to persons born on U.S. soil, whether born in a state, territory, or the District of Columbia.
The United States is not unique in denying rights to some of its citizens over the centuries and having to explain its motivations. As example, the modern history of the Dominican Republic shines a light on the practice of changing “fundamental truths.”
“…the original 1865 jus soli, or ‘place-of-birth,’ birthright-citizenship provision in the Dominican Republic—enacted three years before the U.S. emerged from its Civil War with a Fourteenth Amendment and jus soli provision of its own—signaled a vision of the new Dominican state as a place open to just about everyone. As the historian Anne Eller has written, the provision came in a moment of heightened international cooperation when Haitians, who had thrown off French colonialism and slavery more than 60 years earlier, helped Dominicans win their final and lasting independence from Spain,” notes Jonathan Katz in the Atlantic.
What was accepted as a “fundamental truth” for a republic for two hundred years were only laws written on paper by men. Laws can be changed. In 2010, the Dominican Republic redrafted its Constitution to exclude Dominicans of Haitian descent, all those who could not prove that their parents were legal Dominican residents. The new law affected residents of Haitian descent only and its implementation required petitioners to reconcile their citizenship back to an exception in 1929. The subsequent racial unrest divided the island nation. “Facebook and Twitter were filled with an ultra-nationalist, anti-Haitian narrative of Dominican history, which erased historic alliances and played up real and imagined abuses. Many pushed their completely unfounded belief that the true intention of Haitian immigrants and their children was to conquer the Dominican Republic and raise Haiti’s flag over the entire island.” By 2015 the racial tensions were so great, Dominican nationalists lynched a Haitian man in a public square in Santiago.
“…as Dominicans have ably shown, the most extreme rhetoric has a way of becoming real,” Katz continues. “And the consequences of inciting millions of people against vulnerable groups of immigrants are impossible to control. Representative Steve King—a freshly reelected white-supremacist Republican from Iowa who favorably retweets neo-Nazis—regularly introduces bills that are eerily similar to the Dominican law: denying birthright citizenship to anyone without a parent who is a citizen or ‘lawful permanent resident’ of the United States. In late October, King crowed: ‘I am very happy that my legislation will soon be adopted by the White House as national policy.’ And supposedly sober-minded conservatives may be little help. Days after criticizing the president, [Congressmen Paul] Ryan tried to walk back his comments [against the policies of DJT], telling Fox News that he agreed the Fourteenth Amendment ‘should be reviewed.’”
CONCLUSION
What is clear is that the freedoms guaranteed by the Fourteenth Amendment are being challenged and that, we too, may have to face the dangerous discriminatory forces engendered by Trump’s policies in the United States. But we do have to fight for what we believe. While the Founding Fathers had presented a document far from perfect, they believed at the time that the document was better than any alternative. But they had not yet worked out fully the question that has plagued all nations aspiring to democratic government ever since: how to implement principles of popular majority rule while at the same time preserving stable governments that protect the rights and liberties of all citizens.
It might be worth retelling a well-known story from our country’s founders and their struggle for democratic rule: The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powell of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, madam, if you can keep it.”
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