Fourteenth Amendment

  • September 16, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde François, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.


    Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.  

    The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.

    In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional. 

  • September 15, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. By Doug Kendall, President, and Judith Schaeffer, Vice President, Constitutional Accountability Center  


    As ACS members know, our Constitution is under attack from tea partiers and other self-professed “constitutional conservatives” who have claimed the document as their own and distorted it to support their ideological agenda. Over the past two years, they have made increasingly extreme, and in some cases absurd, claims about our Nation’s charter. They started with calls to repeal a number of Amendments, including the part of the 14th Amendment that protects citizenship at birth. They progressed to claims that Social Security, Medicare, and portions of the Affordable Care Act are unconstitutional. It’s gotten to the point where it seems that many in the tea party believe the entire 20th Century was unconstitutional. Talk about a bridge to the 21st Century!  The tea party movement seems to want to build a bridge back to the colonial era and the Articles of Confederation.

    There is no greater threat to progressive values than this effort to make progress itself unconstitutional. This week, Constitutional Accountability Center and our partner organizations, including the Center for American Progress and People For the American Way Foundation, launched a coordinated effort  -- Constitutional Progressives -- to take our Constitution back and rebut the constitutional fairy tales being peddled by tea party leaders. Our greatest assets in doing so are the text and history of the Constitution itself.

    Constitutional Progressives celebratethe Framers for creating the best and most durable form of government in world history, but believe the Constitution today is better than the document ratified in 1789.  Generations of Americans have made our country and our Constitution “more perfect” by ratifying Amendments that have eliminated slavery, protected liberty and equality, expanded the powers of the federal government, and secured voting rights for every adult citizen in America.   

    This story of constitutional improvement should inspire all Americans, and we’re asking people across the political spectrum to join Constitutional Progressives by signing the “Whole Constitution Pledge” --  a pledge to support the entire Constitution, including the Amendments adopted over the last 220 years. The Pledge can be signed on line, here. More than 15,000 people across the country have already signed. We’ve made a similar call to all Members of Congress, urging them on Constitution Day to reaffirm their constitutional oath of office -- their pledge to support the whole Constitution, not just the parts they like or find ideologically convenient.

  • September 14, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow.


    Attempts to undo the constitutional guarantee that those born in the United States are citizens are “flatly and incontrovertibly unconstitutional and completely at odds with our constitutional history,” Georgia State University law professor Neil Kinkopf tells ACSblog during a video interview.

    Kinkopf traces the history of birthright citizenship in the United States, noting that the common law understanding was that all residents born here were citizens.

    He continues:

    That understanding was upset in the worst decision in the history of the Supreme Court, Dred Scott, when Chief Justice Taney ruled that descendants of Africans cannot be citizens and cannot have rights that a white person is bound to respect.

    It was the rejection of Dred Scott that led to the adoption of the Fourteenth Amendment and that led to the first sentence of the Fourteenth Amendment, which expressly puts into the Constitution birthright citizenship. It’s a fundamental commitment of our nation. It constitutes us as a people -- that we are not a country club, that everyone who’s born here is a citizen of the United States, and that our government cannot distinguish among us.

    Watch the video interview below.

  • July 19, 2011

    Former President Bill Clinton said he would exercise the constitutional power to raise the nation’s debt ceiling “without hesitation” if he were faced with a default while serving as president, and would “force the courts to stop me.”

    “I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” Clinton said during an interview Monday night with The National Memo.

    President Obama has sidestepped the question of whether he would invoke the Constitution in the event an agreement on deficit reduction is not reached, saying, “I don’t think we should even get to the constitutional issue. … The notion that the U.S. is going to default on its debt is just irresponsible.”

    But several scholars have weighed in on whether the Constitution offers a solution should Congress fail to act. Yale law professor Jack Balkin and Harvard law professor Laurence Tribe have agreed that Section 4 of the Fourteenth Amendment does not authorize the President to act, but Tribe and others have noted that Congress’s behavior in “acting in a way to call the public debt into question” may be unconstitutional, even if there is no clear remedy other than to hold Congress publicly accountable.

    In a new blog post, Ohio State University law professor Peter Shane, who specializes in executive power, calls the argument that the President has the power under the Fourteenth Amendment to raise the debt limit “implausible.” He suggests, however, that there is some statutory authority available to the President that would enable him to “provide for contingencies” by deciding for himself in what areas government spending should be deferred in order to keep needed functions operating without borrowing money.

    He concludes:

  • July 11, 2011

    As Congress and President Obama continue their negotiations on a deficit reduction deal with a looming Aug. 2 deadline, politicians and scholars have continued to question whether the Constitution offers a solution if Congress should fail to act.

    The idea that a statutory limit on the federal debt could be unconstitutional if it caused the U.S. to default on payments initially gained traction following an April column in The Atlantic in which University of Baltimore law professor Garrett Epps envisioned an address President Obama might give announcing his refusal to observe the statutory debt ceiling on constitutional grounds.

    Several senators have since endorsed the idea that U.S. default on our debts could violate Section 4 of the Fourteenth Amendment, and a vibrant discussion has developed among academics and commentators. Many have agreed that Congress’s behavior may be unconstitutional. But they have also suggested that the President is unlikely to, and probably shouldn’t, invoke this constitutional argument and flout the will of Congress.

    In a series of posts for Balkinization, Yale law professor Jack Balkin has explained that although he believes Section 4 “was designed to prevent what the Republican leaders of Congress are currently doing, it is not clear that anyone has standing to force Congress to live up to its constitutional duty.”  

    In the extreme and unlikely scenario that all other options for preventing a default on the public debt had been exhausted, he continues, the President could act pursuant to “emergency powers” inherent in the presidency, possibly taking action of “very dubious legality” because the President acts when no one else will act.

    Harvard law professor Laurence Tribe also argues in an op-ed in The New York Times that the Constitution “only grants Congress — not the president — the power ‘to borrow money on the credit of the United States.’”

    “Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis,” Tribe writes.

    In another post for Balkinization, University of Texas at Austin law professor Sandy Levinson suggests that Obama take the alternative route of educating the public “about the unconstitutional behavior of his Republican adversaries.” But, “if there is anything we seem to know about him, it is that he will be extremely reluctant to do so."

    He continues: