Fourteenth Amendment

It seems many conservatives have developed collective amnesia about portions of our Constitution and its history. The most recent example of this phenomenon is Virginia Governor Bob McDonnell's proclamation declaring April Confederate History Month, in which he didn't even mention (let alone condemn) the institution of slavery -- much less recognize that the Union victory swept in constitutional amendments that strengthened the federal government and promoted freedom and equality -- until a national outcry forced him to admit that the omission was a serious mistake. Then, of course, there are the Attorneys General suing to block the recently enacted health care reform law, who appear to have developed convenient memory loss about the part of the Constitution that grants the federal government broad authority to regulate interstate commerce and tax and spend to provide for the general welfare, as well as to make laws that are "necessary and proper" to carry out those powers.

Conservatives would also, apparently, like us to forget about the text and history of the Fourteenth Amendment's Citizenship Clause, which provides: "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." In a recent column, George Will tried to convince his readers that "all persons" does not really mean all. Specifically, Will argues that children born in the United States to undocumented parents are not entitled to birthright citizenship under the Fourteenth Amendment.

Will is undeterred by the fact that the text of the Constitution, the history of the Fourteenth Amendment, and Supreme Court precedent all require the Citizenship Clause to be interpreted to grant citizenship at birth to children born in the United States to undocumented parents. This is probably because Will's argument relies on a recent article published by conservative law professor Lino Graglia, in which Graglia dismisses such constitutional arguments with the rather shocking characterization of the Constitution as "the last resort for defenders of untenable positions." Because progressives cherish the Constitution and, contrary to Graglia's view, see it as an invaluable bulwark against tyranny and inequality, it is important to review the constitutional case for birthright citizenship. (For a more detailed analysis and a thorough refutation of the claims made by Will, Graglia, and others, please see my ACS Issue Brief "Birthright Citizenship: A Constitutional Guarantee.")

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?