14th Amendment

  • September 17, 2012
    Guest Post

    By Adam Winkler, a professor at the UCLA School of Law, and author of Gunfight: The Battle over the Right to Bear Arms in America. This post is part of an ACSblog Constitution Day Symposium.


    Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.

    There’s just one problem with this story. It’s not true.

    The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals. 

    Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.

  • July 12, 2012

    by Jeremy Leaming

    New York City’s leaders, most notably its billionaire mayor, are bent on supporting a stop-and-frisk policy that according to the police department’s own numbers overwhelmingly target minorities.

    Mayor Michael Bloomberg continues to defend the policy, which allows police officers to stop-and-frisk people in the city on suspicion of criminal activity.

    Recently Bloomberg took to a church in Brooklyn to trumpet the policy, saying, “We are not going to going to walk away from a strategy that we know saves lives.” And although he went on to claim city officials would strive to carry out stop-and-frisk “properly,” he has also denigrated Philadelphia’s efforts to reform its frisking policies. “Why would anyone want to trade what we have here for the situation in Philadelphia – more murders, higher crime?” he said in May.

    But numbers regarding stops and frisks show that the policy hardly deters crime, let alone saves lives. According to statistics from the New York Police Department more than 680,000 people were stopped in 2011 and in 88 percent of the stops no arrests were made.

    The numbers do, however, show that racial profiling is taking place. Of the nearly 686,000 people stopped last year 84 percent of them were black or Latino, The Times reports. Pace University law professor Randolph M. McLaughlin told the newspaper, “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?”

    Noting that courts are increasingly assessing stop-and-frisk tactics, McLaughlin added, “And judges read newspapers too.”

    In May, U.S. District Court Judge Shira A. Scheindlin permitted a class-action lawsuit against the New York Police Department’s policy, saying she was seriously concerned about officials’ “troubling apathy towards New Yorkers’ most fundamental constitutional rights.”

  • June 14, 2011
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center


    In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:

    This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.

    Is it remarkable that Pawlenty (pictured) supports appointing conservative justices to the Supreme Court?  Of course not.  But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution.  After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.”  That’s pretty hard to do if you don’t know what the Constitution says. 

    The Constitution’s 14th Amendmentprovides that “[a]ll 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.”  This language plainly lays out a constitutional rule of citizenship at birth.  No question. 

    Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right.  But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens.  Such a claim would be flat wrong as well.

    In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil.  (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue.  Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)  

  • November 18, 2010
    A few incoming Republican senators have urged Senate Majority Leader Harry Reid to freeze any action on treaties, such as the arms treaty with Russia, during the lame duck session.

    At The Washington Note, Steve Clemons writes that these senators-elect, some of whom campaigned on the claim that lawmakers in Washington are running roughshod over the Constitution, should read the 20th Amendment. "According to the 20th Amendment to the Constitution," Clemons writes, "the respective terms of US Senators and US Representatives ends at noon on January 3rd."

    But in their letter to Reid, senators-elect Roy Blunt, Ron Johnson, Rob Portman, Rand Paul and Marco Rubio conclude, "On Election Day we were elected to represent the constituents of our respective states in the Senate. Out of respect for our states' voters, we believe it would be improper for the Senate to consider the New START Treaty or any other treaty in a lame duck session prior to January 3, 2011."

    Clemons blasts the politicians, who will not hold office until Jan. 3 for their efforts, saying they are "extralegal, irresponsible, and unconstitutional."

    "Rand Paul," Clemons states, "you owe many of your supporters a note of regret for having agreed to sign on to this letter giving your strict Constitutionalist views."

    As has been noted by some groups, such as the Constitutional Accountability Center (CAC), some Tea-Party-backed candidates, such as Paul, have, however, shown a tendency to decide what parts of the Constitution are worthy of fidelity and those that are not so worthy. For example, some Tea Party groups and candidates have revealed that they have little use for the 17th Amendment, which allows people, not state legislatures, to elect senators, and the birthright citizenship clause of the 14th Amendment.

  • August 20, 2010
    Alberto Gonzales is not making news when he calls the nation's immigration system broken. The current administration and other individuals and entities say the same thing about the nation's system of handling undocumented workers and families.

    But, the former Attorney General, who left his post during the George W. Bush administration because of increasing tensions with Congress and some outrageously poor legal advice, such as maintaining that the Geneva Conventions' restrictions on interrogating military detainees do not apply to America's war efforts in Iraq and Afghanistan, has offered more opposition to talk of undoing the Constitution's 14th Amendment.

    In a column for The Washington Post, Gonzales adds his voice to other conservatives who have come out against Sen. Lindsey Graham's argument that the 14th Amendment's citizenship clause should be repealed. That clause guarantees citizenship to anyone born in the country regardless of race, color or status of one's parents or ancestors. As noted by Professor Garrett Epps in a piece for The Atlantic, Graham's call for trashing the 14th Amendment, which was joined by a gaggle of other conservative senators, is all about riling voters during the midterm elections, noting that talk of constitutional amendments often crops up during election time (think Bush I's promotion of an amendment to ban flag burning, and Bush II's use of the federal marriage amendment).

    Gonzales says he opposes amending the constitution because such action "should be reserved for extraordinary circumstances that we cannot address effectively through legislation or regulation. Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis."

    He continues that an immigration policy, among other things, should "promote commerce and strengthen our economy."

    For more discussion on immigration reform watch video of a discussion between Labor Secretary Hilda L. Solis and the AFL-CIO's Richard Trumka here. Video of a plenary panel discussion at the 2010 ACS National Convention, "Immigration Reform: Congress and the States," is here.