Robert de Neufville on August 13, 2010, 5:43 PM
The Fourteenth Amendment has come under concerted attack in recent days. Some conservatives have talked about repealing the Citizenship Clause, which says that “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.”
The Fourteenth Amendment, as I explained earlier this week, passed in 1868 in response to the Black Codes, which limited the rights of blacks in parts of the south to own property or enter contracts. The Citizenship Clause ensured that blacks who had been born in the U.S.—whether they were born free or born slaves—would be citizens and entitled to the same rights as everyone else. Because who exactly is “subject to the jurisdiction” of the U.S. is not entirely clear, the courts have never definitively ruled that everyone born in the country is necessarily a citizen, although they have typically interpreted the Citizenship Clause as saying that they are.
The Fourteenth Amendment has been at the heart of the recent legal controversies over same-sex marriage and immigration. As Sandip Roy argues in Salon, Judge Vaughn Walker’s decision to overturn California’s Proposition 8 banning same-sex marriage and Judge Susan Bolton’s decision to issue a preliminary injunction against Arizona’s law, raise similar issues. At stake in each case is what the equal protection of the law means and who is entitled to that protection. Although Judge Bolton’s primarily based her on the Federal government’s authority over immigration, she also pointed out the dangers of “increasing the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up by this requirement.”
