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Whereas Citizens United found that corporate citizens had rights that for many years had only been accorded human-type citizens, the 1857 case of Dred Scott v. Sandford went the other way, making clear "that Negroes were not citizens for any purpose."

The Citizen and the Court: From Dred Scott to Citizens United

Christopher Brauchli

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 before had a candidate for president who had orange hair. But most commentators realize that when someone is hoping 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 gives us the opportunity 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 who had 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. Justifying the decision Justice Kennedy explained: “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, limits on how much corporations can spend in elections are invalid. As 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 corpo¬ration. 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.”

Whereas Citizens United found that corporate citizens had rights that for many years had only been accorded human-type citizens, the 1857 case of Dred Scott v. Sandford went the other way. It made clear that Negroes were not citizens for any purpose. Dred Scott brought a lawsuit in federal court for damages as a result of physical abuse he had suffered when a slave. He alleged that he had the right to have his case considered by the Federal Court under the rule that says citizens of different states may sue one another in Federal Court. Chief Justice Roger B. Taney of the United States Supreme Court wrote the opinion in which he said that neither Mr. Scott nor any other Negro whose ancestors were imported into this country, and sold as slaves could ever become citizens. “We think they are not [citizens] and. . . were not intended to be included, under the word “citizens” in the Constitution. . . . It appears affirmatively on the record that he [Scott]is not a citizen, and consequently his suit against Sandford [the defendant]was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed.”

Following the end of the civil war the Fourteenth Amendment was enacted. It overturned the Dred Scott decision. That Amendment begins by stating that: “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.” It is that Amendment that Mr. Trump plans to repeal when elected. It is beyond the scope of this column to describe the procedure involved in amending the United States Constitution. It is not beyond the scope of this column, however, to hope that just as the Fourteenth Amendment to the Constitution was passed to overturn a patently absurd decision made in 1857, perhaps a similar amendment will be passed to overturn an equally absurd decision made in 2010 by a group of Justices every bit the intellectual equal of Chief Justice Taney and his colleagues.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. For political commentary see his web page at

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