How Does The 14th Amendment Apply To The States?

Corporations, according to current Supreme Court doctrine, are persons.  But a crucial part of the 14th Amendment applies to citizens where there is a clear contrast drawn between persons and citizens.  And certainly a corporation is not a citizen.  Hence there may well be here a way around Citizen’s United without voiding it by constitutional amendment.

By Bob Gerecke

Dean Erwin Chemerinsky may be correct that a Constitutional amendment is not necessary to counter the undemocratic effects of the Supreme Court’s decision in Citizens United.  The provision of the First Amendment which prohibits the Congress from abridging free speech may not apply to the States.

The 14th Amendment is usually cited as requiring the States to observe all of the guarantees of the U.S. Constitution.  However, the section which is so interpreted doesn’t exactly say that.  Here’s the text:

 

Section 1. 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.

Notice that only citizens’ – not persons’ -- privileges and immunities are protected from abridgment by the States.  Persons’ life, liberty and property are protected.  The shift in wording from “citizens” to “person” cannot have been unintentional, and even if it was, it is a distinction in law.
An argument can be made that the States may limit free speech, a free press, and possession of firearms by non-citizens, and that corporations are surely non-citizens.  A State should pass a law to prohibit campaign contributions and expenditures by non-citizens, in order to put the Supreme Court into a box: either interpret the 14th Amendment to say what it says and not say what it doesn’t say, or violate the supposed conservatives’ principle of interpreting only the text as written.  If the Supreme Court protects the corporations, it will create a stir, confirm the impression that its majority is seeking a predetermined conclusion rather than an honest interpretation, and lend fuel to the movement for an amendment and for other legislation on the matter.

Conservatives will argue that denying some rights to non-citizens violates the final clause of the 14th Amendment, requiring “equal protection of the laws”.   However, that interpretation would throw other laws treating citizens and non-citizens differently into question, e.g., “illegal immigrant” laws and those requiring citizenship for an individual to vote in State elections and to make campaign contributions and political expenditures.  It will be interesting to see if the Supreme Court could wiggle through this maze to obtain all of the results that its most conservative members want.