The Use and Abuse of the Fourteenth Amendment

Fourteenth Amendment, Citizenship, and Children of Unauthorized Immigrants

Section. 1. 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. 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.

Only the Second Amendment (pertaining to the right to keep and bear arms) rivals the Fourteenth as a source of political conflict, and the latter is the basis for a far wider range of constitutional disputes. We are now engaged in two such disputes: should children of unauthorized immigrants have citizenship? and, is the prohibition of gay marriage unconstitutional?

The history of the courts’ interpretation of the amendment’s first section (see above) is especially tortured, in spite of the fact that its manifest intent when adopted in 1868 (after the Civil War) was to enforce equal citizenship rights for freed slaves. The Republican Party abandoned Reconstruction in 1876, as part of a deal with the (mostly Southern) Democrats, a deal that gave the Republicans the presidency. Subsequently, the North (mostly Republican) showed little solicitude for the well-being of the former slaves. The courts acquiesced in a long series of tortured reinterpretations of the amendment that were designed by southern whites to limit the effectiveness of black citizenship and restore the subordination of blacks to whites in the South. This culminated in the affirmation by the Supreme Court of legal segregation and the effective disfranchisement of Southern blacks. By the first decade of the twentieth century, the Fourteenth Amendment had been essentially nullified in terms of its original intent.

Parallel to this process of evisceration of original intent, however, came a long and complex series of creative appropriations of the amendment to serve purposes quite distinct from those of the framers. The most spectacular hijacking of the amendment was the doctrine that corporations are persons under the law and therefore may not have their “privileges and immunities” violated by any state. The courts used this doctrine to block state attempts to regulate corporations, thus facilitating the monopolistic abuses of the Gilded Age. Ultimately the Supreme Court reinterpreted this doctrine to allow significant regulation, but the doctrine still lives on in cases such as the Exxon Valdez oil spill.

More consistent with the intent of the framers is a wide range of cases that have used the Amendment to protect the rights of various categories of citizens against violation by the states. This was the foundation of the series of decisions that culminated in Brown v. Board of Education (1954), and related decisions that dismantled the legal foundations of segregation (including laws against interracial marriage). It was also the basis for the extension to the states of constitutional protections against self-incrimination, and guaranteeing the right to counsel.

It is in this tradition that the current controversy over gay marriage was decided. United States District Judge Vaughn Walker, presiding in the challenge to California’s Proposition 8 which made gay marriage unconstitutional in California, declared, ”Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due-process and equal-protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.”

The current conservative majority of the Supreme Court may not want to go so far as to legalize gay marriage, but they will have to come to terms with the argument that prohibiting gay marriage was a violation of the due-process and equal-protection clauses of the Fourteenth Amendment. They tried may try to finesse it by holding that civil unions are a right that all states must respect, while marriage is a matter of religious freedom.

john-peeler.gifMany conservatives are now pushing to amend the Constitution to change the provision of the Fourteenth Amendment that allocates citizenship to all persons born or naturalized in the United States. Unlike many examples of creative interpretation, this proposal would formally amend the amendment. Liberals learned in the 1970s, with the proposed Equal Rights Amendment, how hard it is to amend the Constitution; here is our chance to teach the same lesson to conservatives.

John Peeler

Professor Emeritus of Political Science, Bucknell University

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Comments

  1. says

    No need for a change to the 14th Amendment. Recall the phrase “and subject to the jurisdiction thereor…” The illegal aliens want to be legalized. Give them what they want- return them to their home country, where they will be legal. Send their children back too, so they will no longer be ‘subject to the jurisdiction’ of the United States. They can then be full citizens of their home country. Problem solved.

  2. DavethNative says

    Oh yeah, I totally agree. But let’s not there. Let’s go back to 1492 for all those who came without permission of the Indigenous People of this continent. Go ahead amend it. But watch and see what happens. ext they will try to take away Native Americans dual citizenship because after all they are born to “sovereign nations” within the US. Don’t believe me read Russell Pearce’s website. He thinks Native Americans are not US citizens. But that’s okay just do it. Then go back to 1492 to the two parents from Europe or Spain or France and send all those anchor babies home.

    • Marshall says

      Native Americans sold my family land in north west virginia. Does that cut any slack with you? You do know that they also came from another place, those nuts who track DNA and etc tell us this? Some one from NE Europe was here before 1492, do you do any research?

    • Jerry Lobdill says

      And this coup has spelled the end of the Founders’ dream. Now we have over 700 military bases all over the world to try keeping the lid on our Pax Americana, endless war because we can’t, economic meltdown because we do this, and single minded blind corporate dominance of not only politics but of our very lives as well. It’s called fascism. It has a stranglehold on us now, and we will soon see the the end of this nation…perhaps in my lifetime… and I’m 72.

      Oh…it’s much worse than the gay rights issue and the Exxon-Valdez.

      And Dave, how far back would you like us to go? The “natives” here were glorifying war and counting coup on each other before Europeans came with their domination game. In the Old World these games go back as far as we have records. It seems to be a flaw in the species.

      Jesus preached a different way–and he was crucified. So on we go…to oblivion.

  3. Jerry Lobdill says

    The application of the Fourteenth Amendment to corporations has far more ominous and destructive effects than this author acknowledges–and they are far worse than gay rights or the Exxon Valdez oil spill.

    This corporate personhood has distorted the First Amendment by claiming that political contributions are free speech and that corporations have the right of free speech. It is the reason why lobbyists control our government and elections are farcical.

    • John Peeler says

      You’re right about this. I thought I’d been emphatic enough by calling it a hijacking. This doctrine is the legal foundation for the corporate domination of American politics.

  4. Marshall says

    The members of a big group of people do abuses our 14th amendment, they are llegals. I have not heard of one Citizen having a problem.

    Someone is reading something into the 14th amendment I do not see. It was passed generations ago, in 1866, to settle once and for all that those of us located in America were citizens by birth. After six generations the often unintended consequences of laws can cause a mess and this is one of those times. That amendment also says those persons subject to American jurisdiction and born here or naturalized here are citizens. So how does that mean a person who sneaks into our country to be born can use this law to gain citizenship? What does subject to jurisdiction mean? Is every person within our borders subject? How about those people with diplomatic immunity, they are not subject to our laws for sure?

    Liberals always want to be like the socialist states in Europe so which major countries in Europe have a law that gives illegals citizenship(none)? If you are on a layover at the Paris airport on your way to America (where you wanted the child to be born) and you go into labor, what citizenship will the child have? You will report the birth to your local embassy in Paris and they will record the birth of their citizen as being born in Paris. The French or British are not going to give your child local citizenship if you are from Italy so why do we? I am not sure about Canada, but Mexico will not so we should treat their citizens as they treat ours?

    I am not sure about this part, but I am thinking some politicians are wanting to create new voters at the same time they create citizens. Tricky about that, only citizens vote or should vote, who knows what really happens as several states give illegal driver licenses and that may allow them to register to vote?

    Most people do not like folks who sneak into the ticket line at the movies, the bank, the market, or where ever. We like people who wait their turn so I use the same thought about folks who sneak into our country. I would not mind giving them a work permit, with their finger print on it. I would not mind taxing them. I do not mind giving them some medical care at the emergency room. But I do mind giving US citizenship and full US benefits to anyone who has not earned it.

    No one likes a cheat and giving a cheat a high value item like a US citizenship really burns me up a lot. A work permit, a green card, or even permanent residence maybe , but not citizenship. Not happy with giving that high value citizenship to children born here of parents here under non legal means. No other major country does this other than Canada. So, it would be cheaper on us to help them get to Canada, get your bus tickets here. Is anyone worried about Hezbollah sneaking in a bomb (big boom in little box) or maybe a germ in a bottle. We need to secure our borders tight.

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