14th Amendment

  • September 24, 2014
    Guest Post

    by Carlos Sandoval, Esq. and Catherine Tambini. Their award-winning film, The State of Arizona, will be screened by the ACS’ New York Chapter on Tuesday, October 7 at the offices of Baker Hostetler.

    Who has a right to be an American citizen? Most agree the 14th Amendment's "birthright citizenship" clause, as interpreted by the Supreme Court, settles one aspect of the matter. If you’re born on US soil, you’re a citizen, with minor exceptions.

    In 2011, a group of state legislators concerned about the flow of unauthorized migrants sought to redefine the exceptions. Undocumented parents, they argued, were not subject to the jurisdiction of the United States and therefore their children could not be US citizens “simply by virtue of their GPS location.”

    As we transition from Constitution Week to Hispanic Heritage Month, we’d like to invite you to watch an emotionally packed scene that reveals the potency of the Constitution as a living document. It’s also a scene that reverberates with the centuries old question of identity among Latinos in America.

    For reasons of storytelling and time, we had to drop the footage from the final cut of our film, The State of Arizona. The scene takes place on the grounds of the Arizona State Legislature and inside its Senate Chamber.  Though we filmed in 2011, the arguments haunt us today in the absence of national immigration reform.

     

    A Birthright Citizenship Battle from caminobluff on Vimeo.

  • May 23, 2014
    Guest Post

    by Victor Williams, an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Williams founded the American Institute for Disruptive Innovation in Law and Politics -- DistruptiveJustice.org.

    Partisans have purposely pushed our nation to the brink of fiscal default three times since 2011.  Each time, the Treasury Secretary warned Congress, bondholders, and the public that a “catastrophic” default was imminent. Credit markets shudder, financial houses take multi-million dollar risk precautions, and rating agencies balk. At the twelfth hour, partisans have granted a stay, but only temporary one. The current suspension expires on March 15, 2015 – thus the next battle is strategically scheduled  after expected GOP midterm victories. Beware the Ides of March. But how is Brown v. Board relevant to a debt limit disaster? 

    Facial Violations of the Fourteenth Amendment

    In Brown v. Board of Education, the Supreme Court struck-down segregation legislation as facially violating the Fourteenth Amendment’s Equal Protection Clause. In May 1954, Chief Justice Earl Warren wrote for the unanimous Court that separate educational facilities were “inherently unequal.” The violation was so patent that “any discussion whether such segregation” was a factual violation of due process was “unnecessary.” As Harvard Law’s Richard Fallon notes in Fact and Fiction About Facial Challenges, Brown is a classic example of the judiciary’s assessing the constitutionality of legislation on its face, “not as-applied.”  

    Similarly, the debt limit statute facially and inherently contravenes a fundamental provision of the very same Fourteenth Amendment. Section Four guarantees not only that public debt will always remain valid, but also that the “validity” of such obligations will never be “questioned.”  A centerpiece of the three Civil War Amendments, the absolutist prohibition against debt questioning joins other post- bellum proscriptions against slavery, unequal protection of the law, due process violations, and racial voting barriers.  

  • 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.)