This Saturday, June 13, 2020, marks the 154^th anniversary of the passage of the 14^th Amendment of the US Constitution. The amendment reads, in relevant part:

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.

As the Supreme Court noted just a few years after the Amendment was ratified, the “main purpose of [the 13^th, 14^th, and 15^th] amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.” Yet, recent events involving black Americans and their encounters with police, including the killing of Breonna Taylor, George Floyd and others, show that the amendment has not functioned effectively as a tool for ensuring that black Americans receive equal protection of the laws.

Racial bias crops up at almost every level of the criminal justice system. Black individuals are more likely to be stopped by police, are more likely to be killed by police, are more likely be incarcerated, and are more likely to be sentenced to death than their white counterparts.

Most people might presume that the Fourteenth Amendment’s equal protection clause would provide redress to victims of such racial discrimination by state and federal law enforcement entities. Nevertheless, the Supreme Court has repeatedly refused to recognize overwhelming statistical data as evidence of racial discrimination.

In McCleskey v. Kemp, a 1987 case involving a black defendant convicted of killing a white police officer, the defense mounted a strong case that McCleskey’s death sentence was infected with racial bias, in violation of the Fourteenth Amendment, by reference to a comprehensive statistical study. The study detailed tremendous racial bias in Georgia’s criminal justice system where McCleskey was sentenced. Black defendants charged with killing a white victim, for instance, were eleven times more likely to receive a death sentence than a white defendant charged with killing a black victim. Moreover, the study determined that while prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, they only sought the death penalty in 19 percent of cases involving white defendants and black victims.

Regardless, the Supreme Court held that McCleskey had not proven unequal treatment under the law because the evidence he relied on did not show that the prosecutors in his particular case pursued the death sentence on the basis of McCleskey’s race. Such evidence would be virtually impossible for an individual to uncover, however, due to procedural rules shielding prosecutors from public scrutiny.

McCleskey made clear that racial discrimination perpetuated by the state, evidenced by appalling statistical data, did not violate the Fourteenth Amendment’s equal protection clause. Legal scholars such as Michelle Alexander have asserted that the Court’s decision “was driven by a desire to immunize the entire criminal justice system from claims of racial bias.”

At the same time that the Court has repeatedly refused to recognize the Fourteenth Amendment as an avenue for addressing systemic racism in the criminal justice system, it has invited use of the Amendment by corporations claiming their own constitutional rights. As Justice Black noted in a dissenting opinion in 1938, “of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent. invoked it in protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations.”

As we pointed out in our joint report with Greenpeace Contaminating the Courts: The Corporate Campaign to Misuse the Constitution to Attack the Environment:

Over the last 15 years, corporations have begun invoking… the Equal Protection Clause in challenging … “discriminatory” legislation—arguing, for example, that treating a fracking company differently from sustainable producers is no different than discriminating based on race or sexual orientation. Though most judges have recognized the absurdity of this comparison, corporations have repeated the “equal protection” argument over and over, in hopes of triggering judicial amnesia as to the roots and purpose of the Fourteenth Amendment.

These attempts by corporations to shield themselves from regulation by invoking the Constitution are especially concerning in the aftermath of the Supreme Court’s 2010 Citizens United v. FEC decision in which the Court granted corporations even more tools with which to challenge laws designed to rein them in as violating their “constitutional rights.” There, the Court referred to corporations not as artificial legal entities with state-granted powers, but as “disfavored speakers.”

Meanwhile, the speakers actually disfavored by authorities—such as the Americans who are protesting in the streets against the policies, practices, and people that perpetuate racism and violence—are met with a harsh militaristic police response, and presidential incitement to murder.

One hundred and fifty four years later, it is clear that the guarantee of equal protection under the law for all remains unfulfilled and that the fight to ensure that this nation lives up to this promise must continue.

Read our statement on recent events.

Read our report on when racist abuse of office rises to the level of an impeachable offense.

This blog post was originally drafted by Sarah Fender, a 2020 summer legal intern at Free Speech For People.