All or Nothing

   Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), extends First Amendment protections to independent political expenditures by corporations, see Citizens, 130 S. Ct. 913, and naturally, the dissent (and the public) are worried about corporate election influence and whether the reasoning in Citizens will soon give corporations the right to vote. See generally id. (Stevens, J., dissenting). However, Citizens raises another constitutional question: if corporations are citizens and “persons,” at least in some contexts, they why do they not enjoy all of the Constitutional protections afforded to natural citizens and persons?

   Most generally, Citizens reaffirms the time-honored proposition that “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Id. at 898. Citizens emphasizes an equally important yet less-accepted notion, as well: corporations are citizens. See generally Citizens, 130 S. Ct. 876. As citizens, corporations have a First Amendment right to free speech. Id. at 899. Moreover, the Court is clear: this right is not new or novel. Id. (citations omitted). However, what is new and novel is the Court’s holding: “[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the corporate identity of the speaker and the content of the political speech. Id. at 913. The Court thus overruled Austin v. Michigan Chamber of Commerce, 110 S. Ct. 1391 (1990). In doing so, the Court also held that 2 U.S.C. § 441(b) and its restrictions on corporate campaign expenditures was invalid. Id.

   While corporations won an important freedom of speech and expression victory in Citizens, one cannot help but wonder why so little has been said about the disparity of treatment for corporations and the constitutional implications of such disparity. The Fourteenth Amendment should seemingly make this clear: “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.” U.S. CONST. amend. XIV (emphasis added). This is an affirmative declaration of citizenship, and admittedly, it is not written as a bi-conditional, such that the converse – that anyone not born or naturalized in the United States is not a citizen – is not necessarily true. Nonetheless, citizenship in America has thus far only occurred through naturalization or birth. Or has it? Corporations problematize our understanding of citizenship, for they are neither born nor naturalized. Corporate citizenship exists by virtue of corporate charters, which can be issued and revoked subject to state laws. Yet, corporation would be the only type of “person” who is a citizen of a state but not the nation. More likely, corporations are also “national” citizens, as evidenced by the common distinction of “foreign corporations.” See Citizens, 130 S. Ct. at 947 (Stevens, J., dissenting). An easy solution to the problem to the rights afforded corporate citizens would be to read the first clause of the Fourteenth Amendment, id., as merely a conditional statement: if born or naturalized, then a citizen. Thus, corporations could receive special treatment.

   If only the problem were so simple. The second clause of the Fourteenth Amendment further states:

   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.

   Id. While “citizen,” as used in the first statement could refer back to the conditional definition defined above, “person” is not limited to those naturalized or born in the United States, or otherwise “citizen” would suffice. Instead, it seems to mean all persons, which would include corporations after Citizens, which acknowledged and relied on corporate personhood in its decision. See Citizens, 130 S. Ct. at 900 (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’” (citation omitted)). Consequently, at least in light of their personhood status, corporations are, rightfully have been, and should be afforded many constitutional rights. See generally Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 41 Hastings L.J. 577 (1990).

    Regardless of the individual justifications in particular constitutional amendments, a fundamental belief by most persons in this country is that, by dint of American citizenship, one is protected by the Constitution. If corporations are entitled to some constitutional protections, as the Supreme Court clearly indicated they were in Citizens, then they logically are entitled to all. The thirteenth, fifteenth, and eighteenth amendments were passed to eliminate second classes of citizenship in America: it is illogical that in this advanced age Americans should tolerate the resurgence of second class citizenship, even if the “citizens” are corporations. Citizenship and rights are precious and if corporations are citizens, they should be afforded all rights. Otherwise, it is time to rethink corporate citizenship.