Fourteenth Amendment

  • 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:

  • January 5, 2011
    Guest Post

    Editor's Note: Elizabeth Wydra authored an ACS Issue Brief on the 14th Amendment's birthright citizenship clause and the efforts by some Tea Party groups and others to undermine the clause, which provides citizenship to babies born on American soil. Wydra is updating the Issue Brief, which will be released later this year. In light of the ongoing movement to curtail the citizenship clause, we are re-posting Wydra's blog post regarding her Issue Brief, "Birthright Citizenship: A Constitutional Guarantee."


    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center
    The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.

    Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally; in California, signatures are being gathered for a ballot proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.

    The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.