Fourteenth Amendment

  • 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.

  • January 4, 2011
    Justice Antonin Scalia's claim that the U.S. Constitution does not protect women from discrimination has riled "women's rights activists," reports The Washington Post, and stirred some critical examination of the justice's much-touted method of constitutional interpretation.

    Last fall in an interview, recently published by the California Lawyer, Scalia said, "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

    Yale Law School professor Jack Balkin, in a Balkinization post, notes that Scalia's comments should not be news - he's provided similar commentary before. But Balkin writes that he does "have a few bones to pick with him about his originalist claims."

    Balkin writes:

    First, the central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

    Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.


    Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world. That is to say, he doesn't really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.