November 13, 2008
Pres-Elect Obama and the Fourteenth Amendment
An interesting, albeit brief, article from Huffington Post by Douglas Kendall, entitled Obama and the Constitution: Our Nation's Unfinished Business, provides the following Constitutional goals for the new Administration:
Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.
The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.
Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.
These issues (and more) will be discussed at the ACS meeting, today and tomorrow.
Thinking about attacking the precedent of The Slaughterhouse Cases, 1873, once seemed an exercise in windmill tilting. Interestingly enough, the idea came up in my classroom discussion of the Second Amendment case from last term, District of Columbia v. Heller.
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