(The original post of this piece is from July 2010 and was revised in 2015, again in July 2017 and now on June 24, 2018)
“Due Process” and “Equal Protection” for all…
It seems like a good time to revisit the 14th Amendment in light of the President’s call to deprive immigrants who illegally cross the border of due process rights.
In 1982, the Supreme Court ruled:
“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”
As another commentator put it:
In summary, the entire case of illegal aliens being covered by and protected by the Constitution has been settled law for 129 years and rests on one word: ‘person.’ It is the word ‘person’ that connects the dots of ‘due process’ and ‘equal protection’ in the 14th Amendment to the U.S Constitution and it is those five words that make the Constitution of the United States and its 14th amendment the most important political document since the Magna Carta in all world history.
On July 9, 1868, the states of Louisiana and South Carolina ratified the 14th Amendment to the U.S. Constitution, providing the necessary three-fourths of the states to adopt this very significant Amendment as part of the law of the land.
One of the “Reconstruction Amendments” ratified in the wake of the Civil War, it had far-reaching consequences in American history, touching on many aspects of public and private life in America — from the schoolroom to the bedroom. And it still does.
The first two sections of the Amendment read as follows.
AMENDMENT XIV Passed by Congress June 13, 1866. Ratified July 9, 1868. 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.
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. *Changed by section 1 of the 26th amendment.
Its immediate impact was to give citizenship to “all persons born or naturalized in the United States,” which included formerly enslaved people. Creating national citizenship that was independent of state citizenship, the 14th Amendment reversed the 1857 Dred Scott decision which denied citizenship to the enslaved.
In addition, the 14th Amendment forbids states from denying any person “life, liberty or property, without due process of law” or to “deny to any person within its jurisdiction the equal protection of its laws.”
These clauses, usually referred to as “due process” and “equal protection,” have been involved in some of the most significant decisions in American history. You don’t need to be a Constitutional scholar to understand this Amendment and the profound impact it has had –and continues to have– on every American’s life as well as the rights of non-citizens.
The 14th Amendment has been invoked in such major decisions as Brown v. Board of Education in 1954, which ended segregation of public schools; Roe v. Wade (1973), which disallowed most existing restrictions on abortion; and Loving v. Virginia (1967), which ended race-based restrictions on marriage in America. It also provided the Constitutional authority for many of the most important pieces of civil rights legislation passed in the 1960s. And the 14th Amendment has been central to the same-sex marriage debate. Here is an article from the National Constitution Center on 10 Supreme Court Cases about the 14th Amendment.
And here are other resources on the 14th Amendment from the National Constitution Center’s Interactive Constitution.
Here is a link to more information on the 14th Amendment from the Library of Congress.