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CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next

“Persons”.—In the case in which it was first called upon to interpret this clause, the Court doubted whether “any action of a[p.1803]State not directed by way of discrimination against the [N]egroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”91 Nonetheless, in deciding the Granger Cases shortly thereafter, the Justices seemingly entertained no doubt that the railroad corporations were entitled to invoke the protection of the clause.92 Nine years later, Chief Justice Waite announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations. “We are all of the opinion that it does.”93 The word has been given the broadest possible meaning. “These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . .”94 The only qualification is that a municipal corporation cannot invoke the clause against its State.95

“Within Its Jurisdiction”.—Persons “within its jurisdiction” are entitled to equal protection from a State. Largely because Article IV, Sec. 2, has from the beginning guaranteed the privileges and immunities of citizens in the several States, the Court has rarely construed the phrase in relation to natural persons.96 It was first held that a foreign corporation not doing business in a State under conditions that subjected it to process issuing from the courts of that State was not “within the jurisdiction” and could not complain of the preferences granted resident creditors in the distribution of assets of an insolvent corporation,97 but this holding was subsequently qualified, the Court holding that a foreign corporation which sued in a court of a State in which it was not licensed to[p.1804]do business to recover possession of property wrongfully taken from it in another State was “within the jurisdiction” and could not be subjected to unequal burdens in the maintenance of the suit.98 The test of amenability to service of process within the State was ignored in a later case dealing with discriminatory assessment of property belonging to a nonresident individual.99 When a State has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations.100


Footnotes

91 Slaughter–House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Cf. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist dissenting).
92 Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877) ; Peik v. Chicago & Nw. Ry., 94 U.S. 164 (1877) ; Chicago, M. & St. P. R.R. v. Ackley, 94 U.S. 179 (1877) ; Winona & St. Peter R.R. v. Blake, 94 U.S. 180 (1877) .
93 Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886) . The background and developments from this utterance are treated in H. Graham, Everyman’s Constitution—Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (1968), chs. 9, 10, and pp. 566–84. Justice Black, in Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938) , and Justice Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 (1949) , have disagreed that corporations are persons for equal protection purposes.
94 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) . For modern examples, see Levy v. Louisiana, 391 U.S. 68, 70 (1968) ; Graham v. Richardson, 403 U.S. 365, 371 (1971) .
95 City of Newark v. New Jersey, 262 U.S. 192 (1923) ; Williams v. Mayor of Baltimore, 289 U.S. 36 (1933) .
96 See Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (explicating meaning of the phrase in the context of holding that aliens illegally present in a State are “within its jurisdiction” and may thus raise equal protection claims).
97 Blake v. McClung, 172 U.S. 239, 261 (1898) ; Sully v. American Nat’l Bank, 178 U.S. 289 (1900) .
98 Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544 (1923) .
99 Hillsborough v. Cromwell, 326 U.S. 620 (1946) .
100 Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949) ; Hanover Ins. Co. v. Harding, 272 U.S. 494 (1926) . See also Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886) .
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