dred scott

Give me your tired, your poor,
Your huddled masses yearning to breathe free. . . .
-- Emma Lazarus, Inscription for the Statue of Liberty

It is easy to make fun of Donald Trump just because we have never had a candidate for president with orange hair. But most commentators realize that when someone hopes to become the president of the United States we should ignore his appearance and focus on more substantive matters. We should be especially grateful when a suggestion a candidate makes gives us historical pause and cause to review U.S. Supreme Court decisions. Mr. Trump's suggestion about repealing the Fourteenth Amendment allows us to not only examine the case that gave rise to the Fourteenth Amendment but to compare that case with a more recent U.S. Supreme Court decision. Both decisions involve citizenship and the rights accompanying that status. One expands the notion of what rights certain citizens have whereas the other restricts the rights of individuals born in this country.

The Fourteenth Amendment was passed in response to the 1857 U.S. Supreme Court decision in the case of Dred Scott, a black slave. Like the U.S. Supreme Court in 2010, the 1857 Court comprised Justices with peculiar ideas of who citizens were and what rights were accorded them. In the case of Citizens United vs. Federal Election Commission, the question the Court considered was whether in the political speech context (which includes spending money to advance causes it supports) the government could impose restrictions on certain disfavored speakers such as corporations or whether that violated their First Amendment free speech rights. Five of the Justices concluded that the First Amendment to the United States Constitution invalidated laws that treated corporations as political citizens different from human beings as political citizens when considering limits on how much money the corporations could spend furthering their interests in elections. Justice Kennedy justified the decision: "Corporations and other associations, like individuals, contribute to the 'discussion, debate and the dissemination of information and ideas' that the First Amendment seeks to foster." As a result, he concludes, many thousands of words later, that limits on how much corporations can spend in elections are invalid. Justice Stevens observed in his dissent: "The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its "identity" as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. . . . The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case. . . .Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."