Donald Trump (Reuters/Brendan McDermid)

The GOP's glaring "birthright" hypocrisy: How the 14th amendment also gave birth to corporate personhood

Republicans have begun calls for shredding the Constitution—but only the parts that don't benefit their rich donors


Marcy Wheeler
August 20, 2015 3:59PM (UTC)

At first it seemed Donald Trump's plan to fiddle with the Fourteenth Amendment of the Constitution was a brilliant effort to disqualify at least two of his opponents in the Republican primary for President. But perhaps he has a far more radical agenda in mind. Trump's call to change the Constitution might be just the opening reformers need to rein in corporate power.

In his first policy release, Trump called for an end to birthright citizenship, a right enshrined in the Fourteenth Amendment. "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," states the Amendment's first clause. It was ratified in 1868 as a way to ensure that freed slaves would enjoy full citizenship. Republicans now claim that right encourages foreigners to come to the U.S. solely to give birth to a child that will therefore have U.S. citizenship, what they crassly call "anchor babies."

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Ending birthright citizenship would require either a Supreme Court reversal of earlier decisions or altering the Constitution. But if Trump managed to pull that off, two of his primary opponents, Bobby Jindal and Marco Rubio, might become ineligible to be President. Jindal's parents came to Louisiana to pursue graduate education just months before his birth (accounts differ whether his parents were on student visas or work visas at the time of his birth, but neither was a citizen). And while Marco Rubio's parents had been permanent residents of the U.S. for years before his birth, they were not naturalized as citizens until four years after he was born. Both men were born to legal immigrants, but without birthright citizenship they would not have been eligible to run for President. These classic examples of immigrant success stories, then, in which the children of immigrants can rise to become Senator or Governor, would lose their right to run for President under Trump's plan. (Ted Cruz was born in Canada to a Cuban father, but his mother is American, so his natural born citizenship derives from her.) Setting aside what a racist move it would be to end birthright citizenship, from Trump's standpoint, it would make his job of winning the nomination easier. He'd have fewer successful children of immigrants to beat out!

But there's another way to think of such proposals, one that might have radical positive effects (even while leaving many Americans in a legally precarious position). In addition to granting all people born in the United States citizenship, the Fourteenth Amendment mandates that all persons be treated equally before the law. The same first clause that provides for birthright citizen continues, enumerating that states may not 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." That part of the Fourteenth Amendment has helped African Americans -- and Americans of all races -- obtain justice, most recently in the ruling that guaranteed same sex couples the right to marry.

But, in practice, the Fourteenth Amendment has been at least as useful in guaranteeing equal protection for a different kind of person: corporate persons.

As Thom Hartmann has explained at length, the meaning of the Fourteenth Amendment got radically expanded almost 20 years after it was ratified. In the written decision for an 1886 Supreme Court case reviewing how railroads could be taxed, Santa Clara County v. Southern Pacific Railroad, the headnotes recorded that Chief Justice Morrison Waite asserted during arguments that "we are all of the opinion" that the Fourteenth Amendment "applies to these corporations." That language, which wasn't even part of the decision's central holding, has in turn been used as precedent and to force legislatures to treat corporations the same as human people.

Corporations, it turns out, are the original "anchor babies," exploiting the Fourteenth Amendment to gain the same rights as American people born to citizens. And that's well before you consider how corporations -- including Donald Trump's -- selectively choose the site of their legal birth, usually opting for Delaware (as Trump has) or Nevada to obtain advantages every bit as real as any child gets from being born north of the Texas border.

Over the years, court decision after court decision expanded the rights to which corporations may demand equal access, including First Amendment political speech rights and, most recently, religious freedom. Indeed, the expanded rights enjoyed by corporations under the Fourteenth Amendment and related court decisions are an issue in this election -- for Democrats. Hillary Clinton, Bernie Sanders, and Martin O'Malley have all said they would pick Supreme Court justices who would reverse Citizen United's broad permissions for corporations to weigh in on equal footing with less powerful human persons in campaign spending.

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As for Trump's efforts to tinker with the Amendment that corporations point to to claim their right to equal protection? He's not the only GOP candidate calling for such changes. Most of the GOP field has called for an end to birthright citizenship. While Rubio has spoken against making himself unqualified to be President, even Jindal has called for an end to birthright citizens, though just for some immigrants, not immigrants like his own parents.

I'm sure most of these men have no intention of making legal changes that would restrict the rights of corporations. Which means they think that artificial people should be treated more leniently under the law than flesh and blood people.

With Trump, though, who knows? Surely he would never do anything that would damage the standing of the very considerable artificial persons he birthed. But he at least claims to be concerned about the impact of big donations on politics, even while he admits to have participated in it.

Maybe, at the very least, we can deport artificial people like News Corporation, owner of Fox News and Wall Street Journal, because of the dubious facts surrounding the way its immigrant father gave it U.S. personhood. Maybe we can stop giving welfare payments to corporations that have birthed corporate persons in the U.S.?

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Most of the Republicans in the race enthusiastically call for changes to the first clause of the Fourteenth Amendment. Perhaps we should start with the corporate persons that have benefitted the most from its broad interpretation?


Marcy Wheeler

Marcy Wheeler writes at EmptyWheel.net and is the author of "Anatomy of Deceit."

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