Fourteenth Amendment

  • November 9, 2015

    by Jim Thompson

    At Reuters, Lawrence Hurley reports that the Supreme Court has declined an appeal to determine whether or not police need to obtain search warrants before accessing cellphone location information maintained by wireless carriers.

    In The New York Times, Michael D. Shear writes about a growing group of voting rights activists called iVote who are working to make voter registration “automatic whenever someone gets a driver’s license.”

    At Moyers & Company, John Light discusses the troubling influence of dark money in Pennsylvania’s recent judicial elections and cites ACS’s “Skewed Justice” report to highlight the long-term impact such funds can have on criminal cases.

    Tom Jawetz and Sanam Malik at the Center for American Progress explain why attacks against birthright citizenship undermine the Fourteenth Amendment and contradict the core principles of our democracy. 

  • September 18, 2015
    Guest Post

    by Anthony Johnstone, Associate Professor, Alexander Blewett III School of Law at the University of Montana

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    According Article IV, section 4 of the Constitution, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Note the use of the indefinite article: a Republican Form of Government. In James Madison’s words this originally meant “a Government in which the scheme of representation takes place,” and the people rule instead of a monarch or aristocracy. As the rest of the section’s discussion of “Invasion” and “domestic Violence” suggests, the point of the guarantee was to protect the Union and sister states against the danger posed by a state controlled by the few rather than the many. Beyond this principle of self-preservation, and subject to Congress’s power to regulate federal elections under the Elections Clause, the original Constitution left democracy in the states alone.

    Over the past 228 years since the original Constitution was first proposed, the people mobilized the states to bolster the guarantee through constitutional amendments. The First Amendment confirmed “the principle that debate on public issues should be uninhibited, robust, and wide-open.” The Fourteenth Amendment established equal citizenship for all, eventually realized in the ideal of “one person, one vote.” The Seventeenth Amendment gave the people of the states a direct voice in the Senate, while the Twenty-Third Amendment gave the people of the District of Columbia a voice in the election of the President. The historic Voting Rights Amendments prohibited the denial or abridgment of the right to vote on account of racesexwealth or age.

  • April 24, 2015

    by Caroline Cox

    The Editorial Board of The Washington Post remarks on the confirmation of Loretta Lynch as the next attorney general, calling the vote “embarrassing not to Ms. Lynch, who clearly deserved confirmation, but to the Republicans who voted against a nominee who should have breezed through.”

    Tom Donnelly explains at Slate how the history behind the drafting of the Fourteenth Amendment created the conditions necessary for modern marriage equality.

    At The New Republic, Brianne J. Gorod uses previous decisions of the Supreme Court to show that state bans on same-sex marriage cannot trump the protections found in the U.S. Constitution.

    Lawrence Hurley discusses at Reuters how the United States’ biggest financial firms have clearly sided with marriage equality “by urging the court to strike down state laws banning same-sex unions.”

    In The New York Times, Jonathan Sherman urges the Court to end its ban on cameras during oral arguments.  

  • January 28, 2015

    by Caroline Cox

    In The New York Times, Alan Blinder reports that Georgia completed the execution of Warren Hill, a man with a lifelong intellectual disability. The Supreme Court denied a request to stay Hill’s execution earlier this week.

    Richard Kreitner argues at The Nation that courts should begin to enforce Section 2 of the Fourteenth Amendment in order to save the right to vote.

    Sahil Kapur discusses in Talking Points Memo how the Obama administration is using a 2012 dissent by Justice Scalia in the new Affordable Care Act case.

    At Lyle Denniston Law News, Lyle Denniston writes that an Alabama state judge has vowed resistance to the “tyranny” of same-sex marriage rulings.

  • September 17, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.

    Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

    In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

    Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

    For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

    Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth.