Steven Harrell

Repealing the 14th Amendment?

Aug 11, 2010 Updates

Repealing the 14^th Amendment?

A group of so-called conservative U.S. Senators, including Jon Kyl of Arizona, and Lindsey Graham of South Carolina, have joined with some U.S. Congressmen, including John Boehner, to call for a repeal of the 14^th Amendment to the U.S. Constitution.  These politicians are pimping themselves out to pander to a select group of voters.  As a student of constitutional law, I am appalled by this suggestion, and believe that such talk should be squashed at once.

The 14^th Amendment to the U.S. Constitution was adopted by the Congress on July 9, 1868.  It is one of the post-Civil War Reconstruction Amendments.  The 14^th Amendment contains several important clauses.  The Citizenship Clause provides a broad definition of citizenship that overruled the Supreme Court decision of Dred Scott vs. Sandford  (1857), which held that black slaves could not become citizens of the United States.

Its Due Process Clause prohibits state and local governments from depriving people of life, liberty, and property without due process of law.  Its Equal Protection Clause requires each state to provide equal protection under the law to all persons within its jurisdiction.

Section 1 {the Citizenship Clause} states 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 late U.S. Supreme Court Justice Hugo L. Black was considered by many to be the only “strict constructionist” to ever sit on the U.S. Supreme Court.  He argued that the 14^th Amendment of the U.S. Constitution “incorporated” all of the rights contained in the Bill of Rights of the U.S. Constitution, and made those rights apply to state and local governments.  This man was no judicial activist, in any sense of that word.  He instead believed in a strict interpretation of the U.S. Constitution and its amendments.  In reviewing this issue, we should defer to the wisdom of Justice Hugo Black, considered by many to be one of the great Supreme Court Justices of the 20^th Century.

His view of the constitution was recently reinforced in the recent U.S. Supreme Court case involving the Second Amendment.  Justice Alito, writing for the court in McDonald vs. City of Chicago, 08-1521, specifically held that the 14^th Amendment makes the Second Amendment right to bear arms fully applicable to the states.  In other words, our rights under the Second Amendment apply on a state level, because they are incorporated by the rights granted under the 14^th Amendment, as it applies to each of the states.

Where would we be without the 14^th Amendment?  Well, cities and states could ban the possession of handguns within their jurisdictions.  State and local governments could make public safety personnel work extra hours without paying them one dime of overtime pay.  State and local governments could rezone property using arbitrary or capricious procedures, and pay little or nothing to homeowners for the value of the land.  We would still have the county unit system in statewide elections in Georgia if the 14^th Amendment did not exist.  Public employees working for state or local governments could be terminated without cause if the 14^th Amendment did not exist.  Without the 14^th Amendment, prosecutors could violate a defendant’s right against self incrimination, and a defendant’s other rights in state criminal trials.  Without the 14^th Amendment, a private citizen’s property can be garnished or seized by a creditor before trial without a legal and fair hearing on the question of seizure.  These are some of the hundreds of examples I can give you on this topic.

Do we really want to repeal the 14^th Amendment, and turn back the clock on over 100 years of progress in our society?  I don’t believe so.

If these so-called conservative politicians want to really do something about illegal immigration in this country, they should get off their backsides and draft an immigration bill that actually works for America.  They should stop taking money from all of the fat cat contractors, poultry and meat packing companies, and agribusiness people that routinely employ undocumented workers.  They take campaign money from the groups that routinely exploit undocumented labor, and yet they squawk the most about illegal immigration in this country.  These guys are nothing less than hypocrites.

Instead of repealing the one single constitutional amendment that touches the very lives of every person in the U.S., these misguided politicians should roll up their sleeves and draft an immigration bill with teeth in it.  They need to stop the pandering, and stop misleading the public about the one document that guarantees that every person in this country will be treated fairly and equally, and that is our U.S. Constitution.

Steven Harrell has practiced law in Perry, Georgia since 1989.

He is the author of The Unionist,  A Novel of the Civil War and The Rifle Captain, A Novel of World War I. Both are available at  Amazon.com, and Barnes&Noble.com. You may email him at sharrell@comsouth.net.