8 Words That Could Save Our Country
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From the balcony, Supreme Court Justice Samuel Alito mouthed the words "not true."
Not true? That was the moment the President should have presented his case. And what better person to explain to people the bizarre history of corporate personhood than a brilliant, articulate African American who was also a Professor of Constitutional Law?
He would have taught his virtually all white Congressional audience that the end of the Civil War did not result in ex-slaves gaining either citizenship or the franchise. The 13th Amendment, ratified in 1865 abolished slavery but it did not grant either citizenship or the right to vote. Congress tried to achieve those goals by passing the Civil Rights Act of 1866, but Andrew Johnson, the man who succeeded to the Presidency after the assassination of Abraham Lincoln, vetoed the legislation, declaring it improper "to make our entire colored population…citizens of the United States."
Johnson’s veto led directly to the 14th Amendment, ratified in 1868. The Amendment’s first paragraph finally gave all blacks the Constitutional right of citizenship. "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."
President Obama would then have described how the Supreme Court quickly subverted and perverted the clear intention of the 14th Amendment. It did so in 1876 in a case involving a white militia that had attacked ex-slaves gathered at the Colfax, Louisiana courthouse, killing over 100, most of them after they had surrendered. Several members of the militia were indicted by the federal government under the Enforcement Act, a law passed to protect blacks against vigilante groups like the Ku Klux Klan. The Court ruled that the due process and equal protection clauses of the 14th Amendment applied only to state action, not to actions of individuals: "The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another." The Court’s decision paralyzed the federal government’s attempt to protect black citizens and spawned two generations of lawlessness and vigilantism. Indeed, Federal civil rights enforcement was blocked until 1966 when the Court finally overturned the 1876 case and sanctioned the Civil Rights Act of 1964.
After explaining how the Supreme Court made the 14th Amendment a weak and ineffective tool to defend the rights of natural persons, President Obama would have explained how the Court, in a feat of unprecedented judicial activism, converted the 14th Amendment into a strong and effective tool for defending artificial persons.
It is a fascinating and almost unbelievable tale for the simple fact that the Court never actually decided that a corporation is a person. Indeed, there has never been a Supreme Court decision that has explained how it arrived at this conclusion. In 1886, in a case that had nothing to do with corporate personhood, the court clerk wrote a headnote to the case that contained these fateful sentences, "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." Since the case itself never addressed the question these words did not comprise a legal precedent. Nevertheless, from then on the Supreme Court has considered the question settled.