Three answers to the question of who the Fourteenth Amendment protects, handed down by one bench inside thirty-eight pages: a person the law forbade to become a citizen, a nation held too weak to have rights, and a fiction with no body.
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On 10 May 1886 the Supreme Court handed down thirty-three opinions. It was an opinion day, and anyone who opens volume 118 can say so in a sentence.
So the date is not the argument. The date is evidence of common source: one Court, one term, one volume, and three holdings about who the Fourteenth Amendment reaches, which were separated into different literatures afterwards and by other people. The separation is not in them. It was done to them.
[See CONSTITUTIONAL CAPTURE · THE ESTABLISHMENT]
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THE THREE, IN THE ORDER THE REPORTER PRINTS THEM
Yick Wo v. Hopkins, 118 U.S. 356, unanimous, Matthews, J. A San Francisco ordinance neutral on its face, administered so that none of some two hundred Chinese applicants received a permit and all but one non-Chinese applicant did. The Court held that the equal protection of the Fourteenth Amendment applies to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and that resident aliens whom federal law barred from ever becoming citizens are within it.
United States v. Kagama, 118 U.S. 375, nineteen pages later, unanimous, Miller, J. Federal criminal jurisdiction over offenses between Indians on a reservation, upheld on the ground that the tribes are wards of the nation, communities dependent on the United States, and that from their very weakness and helplessness the duty of protection and the power arise.
Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, nineteen pages after that. The corporation's claim to equal protection never reached the merits. What entered the law entered through the reporter's headnote, recording that the Court did not wish to hear argument on whether the Amendment applies to corporations, because it is of opinion that it does.
Thirty-eight pages, one bench, one afternoon, and the three answers do not agree with each other.
[See CORPORATE PERSONHOOD · PLENARY POWER · DRED SCOTT]
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WHAT YICK WO FORECLOSES
The standard defense of the other two is temporal. The Court could not have seen it that way then. The categories were not available. The century was what it was.
Yick Wo is on the same afternoon, in the same volume, decided unanimously, and it sees it exactly that way. It holds that a facially neutral rule administered to produce one result is the rule that was actually applied, and that the Amendment reaches persons the law refuses to naturalize.
The Court did know better. It knew better nineteen pages earlier, and the knowing did not travel the nineteen pages.
[See COLOR-BLIND EQUALITY · THE ADMISSIBILITY COEFFICIENT]
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THREE GOT IN QUIETLY AND ONE GOT IN LOUDLY
The corporate person entered through a headnote, on a question the Court declined to hear argued. Discovery entered as an assumption Marshall was willing to call extravagant. The doctrine that some nations hold their standing at another nation's pleasure entered through a footnote and a concurrence.
Kagama is the counter-case, and it matters because it is not quiet. It is signed, unanimous, on the merits, and it says out loud what the others leave implicit: that the power rests on a dependency the United States itself produced, and that weakness is the source of the duty and of the authority together.
So the objection that the argument is about procedure fails on its own evidence. One of the four was argued, decided and published in the open, and it is still law.
[See CAPACITY DETERMINATION · ANGLO-SAXON CAPACITY · TERRA NULLIUS]
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WHAT THE AMENDMENT WAS ASKED, THREE TIMES
The question in all three is one question: who is a person for this purpose.
The answers, in the order printed: a laundryman the law would not naturalize, yes. A people with territory, a government and a treaty history, no, and because they are weak. An entity with no body, no conscience and no death, yes, without argument.
A category that admits the fiction while excluding the nation is not a category about persons. It is a category about what the order requires, stated in the vocabulary of persons.
[See THE DOCTRINE OF DISCOVERY · THE GRAMMAR OF ADMISSIBILITY]
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The three cases are taught in three different courses, by three different faculties, out of three different casebooks. Corporate law takes 394. Federal Indian law takes 375. Constitutional law takes 356 and teaches it as a triumph.
The sorting is real and it is later. On the afternoon itself there was one bench, one docket and one volume, and the bench did not experience itself as three jurisdictions.
What it experienced was an ordinary day of work.
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