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Fourteenth Amendment to the United States Constitution

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   The Fourteenth Amendment to the United States Constitution is one of
   the post-Civil War amendments and it includes the Due Process and Equal
   Protection Clauses. It was proposed on June 13, 1866, and ratified on
   July 9, 1868.

   The amendment provides a broad definition of national citizenship,
   overturning a central holding of the Dred Scott case. It requires the
   states to provide equal protection under the law to all persons (not
   only to citizens) within their jurisdictions.

   Current Supreme Court Justice David Souter has called this amendment
   "the most significant structural provision adopted since the original
   Framing". ( McCreary County v. ACLU of Kentucky ( 2005)), although the
   true significance of the Amendment was not realized until the 1950s and
   1960s, when it was interpreted to prohibit racial segregation in public
   schools and other facilities in Brown v. Board of Education.

Citizenship and civil rights

   The first section formally defines citizenship and requires the states
   to provide civil rights.

     Section 1. 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. No State shall make or
     enforce any law which shall abridge the privileges or immunities of
     citizens of the United States; nor shall any State deprive any
     person of life, liberty, or property, without due process of law;
     nor deny to any person within its jurisdiction the equal protection
     of the laws.

   This represented Congress's reversal of that portion of the Dred Scott
   v. Sandford decision that declared that African Americans were not and
   could not become citizens of the United States or enjoy any of the
   privileges and immunities of citizenship. The Civil Rights Act of 1866
   had already granted U.S. citizenship to all people born in the United
   States; the framers of the Fourteenth Amendment enshrined this
   principle in the Constitution in order to stop the Supreme Court from
   ruling it unconstitutional for want of congressional authority to pass
   such a law, or from a future Congress altering it by a bare majority
   vote.

Citizenship and the children of legal and illegal immigrants

   The provisions in Section 1 have been interpreted to the effect that
   children born on United States soil, with very few exceptions, are U.S.
   citizens. This type of guarantee—legally termed jus soli, or "right of
   the territory"— does not exist in most of Western Europe or the Middle
   East, although it is part of English common law and is common in the
   Americas.

   The phrase and subject to the jurisdiction thereof indicates that there
   are some exceptions to the universal rule that birth on U.S. soil
   automatically grants citizenship. Two Supreme Court precedents were set
   by the cases of Elk v. Wilkins 112 U.S. 94 (1884) and United States v.
   Wong Kim Ark 169 U.S. 649 (1898). Elk v. Wilkins established that
   Indian tribes represented independent political powers with no
   allegiance to the United States, and that their peoples were under a
   special jurisidiction of the United States. Children born to these
   Indian tribes therefore did not qualify for automatic citizenship under
   the Fourteenth Amendment. Indian tribes that paid taxes were exempt
   from this ruling; their peoples were already citizens by an earlier Act
   of Congress.

   In Wong Kim Ark the Supreme Court held that under the Fourteenth
   Amendment to the U.S. Constitution, a man born within the United States
   to foreigners (in that case, Chinese citizens) who were lawfully
   residing in the United States and who were not employed in a diplomatic
   or other official capacity by a foreign power, was a citizen of the
   United States.

   Under these two rulings, the following persons born in the United
   States are not "subject to the jurisdiction [of the United States]",
   and thus do not qualify for automatic citizenship under the Fourteenth
   Amendment:
     * Children born to foreign diplomats;

     * Children born to enemy forces in hostile occupation of the United
       States;

     * Children born to Native Americans who are members of tribes not
       taxed (these were later given full citizenship by the Indian
       Citizenship Act of 1924).

   The following persons born in the United States are explicitly
   citizens:
     * Children born to US citizens;

     * Children born to aliens who are lawfully inside the United States
       (resident or visitor), with the intention of amicably interacting
       with its people and obeying its laws.

   The Court in Wong Kim Ark did not explicitly decide whether U.S.-born
   children of illegal immigrants are "subject to the jurisdiction of the
   United States" (it was not necessary to answer this question since Wong
   Kim Ark's parents were legally present in the United States at the time
   of his birth). However, the Supreme Court's later ruling in Plyler v.
   Doe 457 U.S. 202 stated that illegal immigrants are "within the
   jurisdiction" of the states in which they reside, and added in a
   footnote that "no plausible distinction with respect to Fourteenth
   Amendment "jurisdiction" can be drawn between resident aliens whose
   entry into the United States was lawful, and resident aliens whose
   entry was unlawful."

   This implies that the U.S.-born children of illegal immigrants qualify
   for citizenship under the Fourteenth Amendment.

   Some legislators, reacting to illegal immigration, have proposed that
   this be changed, either through legislation or a constitutional
   amendment. The proposed changes are usually one of the following:
     * The child should have at least one parent who is a U.S. citizen.

     * The child should have at least one parent who is a U.S. citizen or
       permanent resident

     * The child should have at least one parent who is lawfully present
       in the United States.

   For example, Representative Nathan Deal, Republican of Georgia,
   introduced legislation in 2005 to that would provide that U.S.-born
   children would be "subject to the jurisdiction of the United States"
   (and therefore entitled to automatic citizenship under the Fourteenth
   Amendment) only if at least one parent were a U.S. citizen or permanent
   resident. .

   Similarly, Representative Ron Paul of Texas has introduced a
   constitutional amendment that would deny automatic citizenship to
   U.S.-born children unless at least one parent is a citizen or permanent
   resident .

   Neither of these measures has come to a vote.

Loss of citizenship

   The Fourteenth Amendment does not provide any procedure for loss of
   United States citizenship. Indeed the Amendment, taken absolutely
   literally, would seem to imply that loss of U.S. citizenship is
   impossible for anyone born or naturalized in the United States. Under
   the Supreme Court precedent of Afroyim v. Rusk , loss of U.S.
   citizenship is possible only under the following circumstances:
     * Fraud in the naturalization process. Technically this is not loss
       of citizenship, but rather a voiding of the purported
       naturalization and a declaration that the immigrant never was a
       U.S. citizen.
     * Voluntary relinquishment of citizenship. This may be accomplished
       either through renunciation procedures specially established by the
       State Department or through other actions which demonstrate an
       intention to give up U.S. citizenship. Such actions include, under
       the laws and policies in operation as of 2006 :
          + Treason against the United States.
          + Voluntary service in a foreign army engaged in hostilities
            against the United States
          + Accepting employment under foreign government if one is a
            national of the government or if one is required to make an
            oath of allegiance, if one intends to relinquish US
            nationality

Civil rights

   Congress also passed the Fourteenth Amendment in response to the Black
   Codes that southern states had passed in the wake of the Thirteenth
   Amendment, which ended slavery in the United States. Those laws
   attempted to return freed slaves to something like their former
   condition by, among other things, restricting their movement and by
   preventing them from suing or testifying in court.

   Early on, the Supreme Court limited the reach of the Amendment by
   holding in the Slaughterhouse Cases (1871) that the "privileges and
   immunities" clause was limited to "privileges and immunities" granted
   to citizens by the federal government. The Supreme Court held in the
   Civil Rights Cases that the Amendment was limited to "state action" and
   thus did not authorize Congress to outlaw racial discrimination on the
   part of private individuals or organizations. Neither of these
   decisions has been overturned and in fact have been specifically
   reaffirmed several times.

   In the decades following the enactment of the Fourteenth Amendment, the
   Supreme Court overturned laws barring blacks from juries ( Strauder v.
   West Virginia) or discriminating against Chinese-Americans in the
   regulation of laundry businesses ( Yick Wo v. Hopkins), under the aegis
   of the Equal Protection Clause.

   In Plessy v. Ferguson, the Supreme Court held that the states could
   impose segregation so long as they provided equivalent facilities—the
   genesis of the "separate but equal" doctrine. The popular understanding
   of what was encompassed under "civil rights" was much more restricted
   during the time of the Fourteenth Amendment's ratification than the
   present understanding, involving such things as equal treatment in
   criminal and civil court, in sentencing, and in availability of civil
   services if they apply. On this scheme, political rights were first
   guaranteed not with the Fourteenth Amendment but with the Fifteenth
   Amendment and its right to vote. Social rights first explicitly
   appeared with Loving v. Virginia (1967), which declared anti-
   miscegenation laws to be unconstitutional.

   Many maintain that the Fourteenth Amendment was designed to encompass a
   broad anti-discrimination principle, or at least to declare personal
   rights broader than the restricted early conception of "civil rights".
   On this view, Plessy v. Ferguson sapped the equal protection clause of
   its original meaning in restricting its application to this degree. The
   Court went even further in restricting it in Berea College v. Kentucky,
   holding that the states could force private actors to discriminate by
   prohibiting an integrated college from admitting both black and white
   students. By the early twentieth century, the Equal Protection Clause
   had been eclipsed to the point that Justice Oliver Wendell Holmes, Jr.
   dismissed it as "the usual last resort of constitutional arguments."

   The Court held to the "separate but equal" doctrine for more than fifty
   years, despite numerous cases in which the Court itself had found that
   the segregated facilities provided by the states were almost never
   equal until the case Brown v. Board of Education happened. Brown met
   with a campaign of resistance from white Southerners, and for decades
   the federal courts attempted to enforce Brown's mandate against
   continual attempts at circumvention. This resulted in the controversial
   forced busing decrees handed down by federal courts in many parts of
   the nation, including major Northern cities like Detroit ( Milliken v.
   Bradley) and Boston.

   In the half century since Brown, the Court has extended the reach of
   the Equal Protection Clause to other historically disadvantaged groups,
   such as women, aliens, and illegitimate children, although applying a
   somewhat less stringent test than it has applied to governmental
   discrimination on the basis of race.

   For many years, beginning in the 1880s, the Court interpreted the
   Fourteenth Amendment's Due Process Clause as providing substantive
   protection to corporate interests. The Court held that the Fourteenth
   Amendment protected "freedom of contract", or the right of employees
   and employers to bargain for wages without great interference from the
   state. Thus, the Court struck down a law decreeing maximum hours for
   workers in a bakery in Lochner v. New York (1905), and struck down a
   minimum wage law in 1923's Adkins v. Children's Hospital. The Court did
   uphold some economic regulation, however, including state prohibition
   laws ( Mugler v. Kansas), laws declaring maximum hours for mine workers
   (Holden v. Hardy), laws declaring maximum hours for female workers (
   Muller v. Oregon), as well as federal laws regulating narcotics (United
   States v. Doremus) and President Wilson's intervention in a railroad
   strike (Wilson v. New).

   The Court overruled Lochner, Adkins, and other precedents protecting
   "liberty of contract" in 1937's West Coast Hotel v. Parrish, decided in
   the midst of the New Deal, when President Franklin D. Roosevelt
   threatened to " pack the court" to preserve his programs from being
   declared unconstitutional by the Court. However, it is important to
   note that as popular as Roosevelt was, his court packing plan failed
   miserably because it was seen as fundamentally changing the blueprint
   of the government. Also, we must note Footnote 4 of the Carolene
   Products case, in which the Supreme Court already noted the change in
   their stance, and their desire or at least felt obligation to inflate
   the balloon of equality rights liberalism opposed to freedom of
   contract liberalism.

   Yet while the Supreme Court has emphatically rejected the substantive
   due process precedents that allowed it to overturn states' economic
   regulations, in the past forty years it has recognized a number of
   "fundamental rights" of individuals, such as privacy and some parental
   rights, which the states can regulate only under narrowly defined
   circumstances. The Court has also greatly expanded the reach of
   procedural due process, requiring some sort of hearing before the
   government may terminate civil service employees, expel a student from
   public school or cut off a welfare recipient's benefits.

   Through the doctrine of Incorporation, the Due Process Clause of the
   Fourteenth Amendment has also brought about the application of nearly
   all of the rights explicitly enumerated in the Bill of Rights to the
   states. Prior to the adoption of this Amendment, the Bill of Rights
   acted only as a restraint on federal, not state, governments, and a
   state's relations with its citizens and those of other states was
   legally restrained only by that state's constitution and laws and those
   provisions of the Constitution that limited the powers of the states.
   While many states modeled their constitutions and laws after the
   federal government's, those state constitutions did not necessarily
   include provisions comparable to the Bill of Rights.

   The Fourteenth Amendment not only empowered the federal courts to
   intervene in this area to enforce the guarantee of due process and the
   equal protection of the laws, but to import the substantive rights of
   free speech, freedom of religion, protection from unreasonable searches
   and cruel and unusual punishment and other limitations on governmental
   power. At the present, the Supreme Court has held that the due process
   clause incorporates all of the substantive protections of the First,
   Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment
   other than the requirement that any criminal prosecution must follow a
   grand jury indictment, but none of the provisions of the Seventh
   Amendment relating to civil trials.

   Though the framers of the Fourteenth Amendment did not believe the
   Amendment would create new political rights (leading to the passage of
   the Fifteenth Amendment, protecting the right of blacks to vote on
   equal terms with whites), the Supreme Court, since 1962's Baker v. Carr
   and 1964's Reynolds v. Sims, has interpreted the Equal Protection
   Clause as requiring the states to apportion their congressional
   delegations and legislatures on a "one-man, one-vote" basis. Attempts
   to extend this principle to attempts at gerrymandering have thus far
   stalled.

Apportionment of representatives

   The second section establishes rules for the apportioning of
   representatives in Congress to states, essentially counting all
   residents for apportionment and reducing apportionment if a state
   wrongfully denies a person's right to vote.

     Section 2. Representatives shall be apportioned among the several
     States according to their respective numbers, counting the whole
     number of persons in each State, excluding Indians not taxed. But
     when the right to vote at any election for the choice of electors
     for President and Vice President of the United States,
     Representatives in Congress, the Executive and Judicial officers of
     a State, or the members of the Legislature thereof, is denied to any
     of the male inhabitants of such State, being twenty-one years of
     age, and citizens of the United States, or in any way abridged,
     except for participation in rebellion, or other crime, the basis of
     representation therein shall be reduced in the proportion which the
     number of such male citizens shall bear to the whole number of male
     citizens twenty-one years of age in such State.

   This section overrode the provisions of the Constitution that counted
   slaves as three-fifths of a person for purposes of allotting seats in
   the House of Representatives and the Electoral College.

Participants in rebellion

     Section 3. No person shall be a Senator or Representative in
     Congress, or elector of President and Vice President, or hold any
     office, civil or military, under the United States, or under any
     State, who, having previously taken an oath, as a member of
     Congress, or as an officer of the United States, or as a member of
     any State legislature, or as an executive or judicial officer of any
     State, to support the Constitution of the United States, shall have
     engaged in insurrection or rebellion against the same, or given aid
     or comfort to the enemies thereof. But Congress may by a vote of
     two-thirds of each House, remove such disability.

   The third section prevents the election of any person to the Congress
   or Electoral College who had held any of certain offices and then
   engaged in insurrection, rebellion, or treason. A two-thirds vote by
   Congress can override this limitation, however. This disqualification
   could not have been enacted as a statute, because it would have been an
   ex post facto punishment. In 1978, two-thirds votes of both Houses of
   Congress were obtained posthumously removing the service ban from
   Robert E. Lee and Jefferson Davis.

Validity of public debt

     Section 4. The validity of the public debt of the United States,
     authorized by law, including debts incurred for payment of pensions
     and bounties for services in suppressing insurrection or rebellion,
     shall not be questioned. But neither the United States nor any State
     shall assume or pay any debt or obligation incurred in aid of
     insurrection or rebellion against the United States, or any claim
     for the loss or emancipation of any slave; but all such debts,
     obligations and claims shall be held illegal and void.

   The fourth section confirmed that the United States would not pay
   "damages" for the loss of slaves, nor debts that had been incurred by
   the Confederacy — for example, several English and French banks had
   loaned money to the South during the war. In spite of the Amendment,
   Confederate bonds were traded on money markets for many years, albeit
   at a great discount from par, on the hope that the U.S. would
   eventually stand behind them. Similarly, Czarist bonds were traded for
   many years in the forlorn hope that the USSR would honour them.

Power of enforcement

     Section 5. The Congress shall have power to enforce, by appropriate
     legislation, the provisions of this article.

   The fifth section empowers Congress to enforce the amendment "by
   appropriate legislation." Although in Katzenbach v. Morgan ( 1966) the
   Warren Court construed this section broadly, the Rehnquist Court tended
   to construe it narrowly, as in City of Boerne v. Flores ( 1997) or
   Board of Trustees of the University of Alabama v. Garrett ( 2001). But
   see Tennessee v. Lane and Nevada Department of Human Resources v.
   Hibbs.

Proposal and ratification

   The Congress proposed the Fourteenth Amendment on June 13, 1866. There
   being thirty-seven states in the Union at that time, the ratification
   (per Article Five of the Constitution) of twenty-eight would bring this
   Amendment into operation. By July 9, 1868, twenty-eight states had
   ratified the Amendment:
     * Connecticut ( June 25, 1866)
     * New Hampshire ( July 6, 1866)
     * Tennessee ( July 19, 1866)
     * New Jersey ( September 11, 1866)
     * Oregon ( September 19, 1866)
     * Vermont ( October 30, 1866)
     * Ohio ( January 4, 1867)
     * New York ( January 10, 1867)
     * Kansas ( January 11, 1867)
     * Illinois ( January 15, 1867)
     * West Virginia ( January 16, 1867)
     * Michigan ( January 16, 1867)
     * Minnesota ( January 16, 1867)
     * Maine ( January 19, 1867)
     * Nevada ( January 22, 1867)
     * Indiana ( January 23, 1867)
     * Missouri ( January 25, 1867)
     * Rhode Island ( February 7, 1867)
     * Wisconsin, ( February 7, 1867)
     * Pennsylvania ( February 12, 1867)
     * Massachusetts ( March 20, 1867)
     * Nebraska ( June 15, 1867)
     * Iowa ( March 16, 1868)
     * Arkansas ( April 6, 1868)
     * Florida ( June 9, 1868)
     * North Carolina, ( July 4, 1868, after having rejected it on
       December 14, 1866)
     * Louisiana ( July 9, 1868, after having rejected it on February 6,
       1867)
     * South Carolina ( July 9, 1868, after having rejected it on December
       20, 1866)

   However, Ohio passed a resolution that purported to withdraw their
   ratification on January 15, 1868. The New Jersey legislature also tried
   to rescind their ratification on February 20, 1868. The New Jersey
   governor had vetoed their withdrawal on March 5, and the legislature
   overrode the veto on March 24. Accordingly, on July 20, 1868, Secretary
   of State William Seward certified that the amendment had become part of
   the constitution if the rescissions were ineffective. Congress
   responded on the following day, declaring that the amendment was part
   of the constitution and ordering Seward to promulgate the Amendment.

   Meanwhile, two additional states had ratified the amendment:
     * Alabama ( July 13, 1868, the date the ratification was "approved"
       by the governor)
     * Georgia ( July 21, 1868, after having rejected it on November 9,
       1866)

   Thus, on July 28, Seward was able to certify unconditionally that the
   Amendment was part of the constitution without having to endorse
   Congress's assertion that the withdrawals were ineffective.

   There were further, purely symbolic, ratifications and rescissions:
     * Oregon (withdrew October 15, 1868)
     * Virginia ( October 8, 1869, after having rejected it on January 9,
       1867)
     * Mississippi ( January 17, 1870)
     * Texas ( February 18, 1870, after having rejected it on October 27,
       1866)
     * Delaware ( February 12, 1901, after having rejected it on February
       7, 1867)
     * Maryland (1959)
     * California (1959)
     * Kentucky (1976, after having rejected it on January 8, 1867)

Controversy over ratification

   A number of individuals argue that the ratification of the 14th
   Amendment violated Article V of the Constitution. For instance, Bruce
   Ackerman argues that:
     * The 14th Amendment was proposed by a rump Congress that did not
       include representatives and senators from most ex-Confederate
       states, and, had those congressmen been present, the Amendment
       would never have passed.
     * Ex-Confederate states were counted for Article V purposes of
       ratification, but were not counted for Article I purposes of
       representation in Congress.
     * The ratifications of the ex-Confederate states were not truly free,
       but were coerced. For instance, many ex-Confederate states had
       their readmittance to the Union conditioned on ratifying the 14th
       Amendment.

   (See Amar, Akhil Reed. America's Constitution: A Biography. p. 364–365;
   See also Douglas H. Bryant, Unorthodox and Paradox: Revisiting the
   Ratification of the Fourteenth Amendment, Alabama Law Review, Winter
   2002.)

   In Dyett v. Turner, 439 P.2d 266 (Utah 1968), the Utah Supreme Court
   diverged from the habeas corpus issue in the case to express its
   resentment against recent decisions of the U.S. Supreme Court under the
   Fourteenth Amendment, and to attack the Amendment itself:

     In order to have 27 states ratify the Fourteenth Amendment, it was
     necessary to count those states which had first rejected and then
     under the duress of military occupation had ratified, and then also
     to count those states which initially ratified but subsequently
     rejected the proposal. To leave such dishonest counting to a
     fractional part of Congress is dangerous in the extreme. What is to
     prevent any political party having control of both houses of
     Congress from refusing to seat the opposition and then without more
     passing a joint resolution to the effect that the Constitution is
     amended and that it is the duty of the Administrator of the General
     Services Administration to proclaim the adoption? Would the Supreme
     Court of the United States still say the problem was political and
     refuse to determine whether constitutional standards had been met?
     How can it be conceived in the minds of anyone that a combination of
     powerful states can by force of arms deny another state a right to
     have representation in Congress until it has ratified an amendment
     which its people oppose? The Fourteenth Amendment was adopted by
     means almost as bad as that suggested above.

Relevant court cases

     * Dred Scott v. Sandford
     * Slaughterhouse Cases
     * Civil Rights Cases
     * Elk v. Wilkins, 112 U.S. 94 ( 1884).
     * Strauder v. West Virginia
     * Yick Wo v. Hopkins
     * Plessy v. Ferguson
     * Lochner v. New York
     * Berea College v. Kentucky
     * Buchanan v. Warley
     * Pierce v. Society of Sisters
     * Powell v. Alabama
     * Shelley v. Kraemer
     * Brown v. Board of Education
     * Baker v. Carr
     * Griswold v. Connecticut

                                             * Loving v. Virginia
                                             * Goldberg v. Kelly
                                             * Roe v. Wade
                                             * Goss v. Lopez
                                             * Board of Regents v. Roth
                                             * New Orleans v. Dukes
                                             * Lawrence v. Texas
                                             * Gitlow v. New York
                                             * Standing Bear v. Crook
                                             * Sheppard v. Maxwell
                                             * United States v. Wong Kim Ark
                                             * United States v. Morrison
                                             * Afroyim v. Rusk
                                             * Korematsu v. United States
                                             * Kolender v. Lawson (1983)
                                             * Munn v. Illinois

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