14th Amendment - Research Paper Example

14th Amendment Introduction The Constitution of the United States of America was enforced on September 17th, 1787. Since then there have been many attempts to reconstruct the rules of governance by amending the written document. According to a report collectively there are nearly twelve thousand attempts and reshaping the constitution. However, only 27 of these proposed changes have been ratified by the states, and are thus being incorporated into the Constitution of America. The first ten amendments in the constitution are collectively dealt as the Bill of Rights, which was designed to curtail the Anti-Federalist sentiments prevailing in the states after the independence, and to define fundamental rights of the Americans living in the states. The Congress passed the 14th Amendment on June 13th, 1866 and it was ratified on July 9th, 1868. The reconstructive phase of the constitution began right after the end of Civil War. Abraham Lincoln abolished slavery in the preceding amendment. The abolishment of slavery did not follow the regular routine of amendments, it was just one man’s words that gave the congress the right to pass a law to abolish it and the world remembers the statement “Slavery is over, and Congress has the right to pass law to abolish it”. The 13th Amendment raises some critical questions for the lawmakers, and the 14th Amendment was drafted in order to answer these questions of law. The first question to be dealt was the citizenship of the freed slave; associated to this was whether they have the right to own property like the white. Second critical problem that needed an answer was the treatment of freed slaves by law courts of law. Other problems included treatment of rebels; the loans that were borrowed by the rebellions during the civil war, and the right of rebels to be elected for Congress. Clauses and Commentary The 14th Amendment comprises of 5 sections, they deal with the citizenship, equal protection of law, due process, debt, and power of the Congress to enforce. A brief commentary of the clauses presented in the 14th Amendment along with original is provided as follows. 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. (LII / Legal Information Institute) Citizenship by place of birth was not a new law. It has bases in the centuries old English Common Law, and it followed the simple doctrine of jus soli. Until the infamous case of Dred Scott when the Supreme Court abrogated the doctrine, jus soli was a part of American Jurisprudence(Stein & Bauer, 1995). The question of jurisdiction has long been debated especially in the cases of illegal immigrants. The critics have vocalized their concern on the legitimacy of citizenship of the child born to illegal immigrants in America. Another case is of the aliens residing within America, who stay for longer period, and give birth to children in America. The question of citizenship by birthright even today heats up the debate, when the anomalies like illegal immigrants and aliens are brought into discussion(Stein & Bauer, 1995). Apart from that the first section also limits the power of the legislatures to enforce laws that affect the immunities of the citizens of America granted by the constitution. It also demands the lawgivers to be just in their dealing. They must not create discrimination on the basis of caste, creed, color, or belief. This section of the amendment also focuses on the equal protection of law in all public and private matters. The clause of equal protection has been in the preceding years many times by inhabitants of America to win their rights. The due process of law is also dealt as the basic right of the citizen of America, and it is the duty of the state to ensure it. Due process of law offers equal opportunity to the citizen to access the courts and dispel their grievances(Call, 1961; Kirby, 1982). 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. (LII / Legal Information Institute) Initially, blacks were considered as 3/5 of the white men; which meant that 5 votes of black men were equal to three votes of white men. Moreover, the representation of a state in the Congress, and for the election of the President, and the Vice President was to be made on the basis of total number of adult males (i.e. 21 years) in a state. The representation according to the population size was made to provide justice while making and maintaining equality at constitutional level. 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. (LII / Legal Information Institute) This section deals with eligibility of an individual to be elected as a member of Congress. It prevented all the personnel from holding legislative offices in the Senate and the Lower House who have been involved in the insurrection or rebellion against the constitution of the United States. Such person(s) can only be nominated or elected for the office of senator or as the member of house if the majority (i.e. 2/3) of the Congress allows them to. 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. (LII / Legal Information Institute) In regards to public debt no one could raise question against the state as fare as the state sticks to law. This section acknowledged the services of the men who fought against the rebellion, and supported U.S. in the civil war; by providing them with pension. While the ones who supported the insurrection and were part of rebellion they were denounced of any reward or pension on behalf of the quest. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (LII / Legal Information Institute) The last section of the 14th amendment is pretty straightforward, it provides the Congress with the power to make and enforce laws in order to apply the provisions under the Constitution. Legal and social developments in America The Civil Rights movement in America that lasted from 1954 to 1968 was based the on the 14th amendment’s equal protection clause. The objective of the Civil Rights movement was to protect and secure legal recognition of the citizenship sights provided by the Constitution of the United States. As a result of this social mobilization there were changes in the law, and the Civil Rights Act of 1964 was its final form. The civil rights offered by the 14th amendment include freedom of speech and press; it evades the civilians from involuntary servitude, and the right to the equality in public spaces (Gamble, 1997). The idea behind equal protection clauses was to prevent discrimination based on caste, creed, color, employment, gender, age and disability. The 14th amendment plays a crucial role in the defining the regular conduct of the Americans. Apart from the apparent sections of the amendment, there are multiple businesses of life in which the 14th amendment in the constitution dictates the conduct. Take for example the family laws applied in the United States. It is directed towards the preservation of American traditions and family value(Warren, 1926). The 14th amendment under the privacy clause give the liberty to the individuals to decide their family structure, and the freedom to choose with whom they want to dwell irrespective of direct blood relations; like in case of grand children living with grandparents, the state has no power to intervene into this or other associated arrangements. Further, the right to marriage is again a personal affair, and the state cannot infringe this right of a person, irrespective of the fact that the person planning to remarry has whether fulfilled his duties associated to his or her previous relation or not. The custody of the child, visitation rights, and inheritance are also some important family issues that are dealt by the provisions of the 14th amendment under the privacy clause. Further, one the most recent changes in the America’s Federal Law were the legitimization of homosexual relationship, or the gay marriage. There was a great deal debate on this matter and the issue was with conservatives and religious stakeholders, who denounced this human expression of affection towards same gender calling it a sin and unconstitutional (Sunstein, 1994). There are very few countries that have legitimized gay marriages before U.S.; so the precedent to be followed was limited and it was like waging war against the beliefs and the mindsets of the straight majority. However, keeping conventions and religious ideology aside, Obama’s Government legitimized it in 2014. The 14th amendment offers freedom of choice, and freedom of expression under the Civil Rights clause; further it safeguards the citizens’ right to privacy; and also provides equal treatment. Gays born in America has the birthright to enjoy similar rights as any other citizen. Law is not responsible to define personal choices of the individuals (Sunstein, 1994). Therefore, institutionalizing gay marriage can be considered as the advanced development of the 14th amendment, which was aimed at prioritizing the freedom and comfort of the citizens. Following the legitimization of gay marriage, the Defense of Marriage Act was repealed as majority of the states within U.S. allowed gay marriage (i.e. 36 states). There was extension in the Hate Crimes Prevention Act that initially dealt with violence on the basis of race, and religion, but now it also covers violence based on sexual orientation and gender ad disability. Healthcare rights, and matters associated with the physiological wellbeing of a person are not explicitly mentioned in the constitution, but the state definitely has the responsibility towards its subjects of providing them with healthcare facilities and improving the quality of life of an individual (Call, 1961). The critics of the Constitution argued that the cost of healthcare creates disparity among the citizens on the basis of economical outreach. In this manner the rich having more money can enjoy better health facilities compared to the poor. Therefore, state needs to take up the responsibility to provide healthcare assistance to the citizens under the clause of equal treatment enshrined in the 14th amendment. As a result of this criticism and debate over state’s agenda dealing with citizens wellbeing, there have been some developments in the federal laws dealing with medical and mental health insurance, for example Medicare, Medicaid, Children’s Health Insurance Program, and more recently the Obama care or the Affordable Care Act. Until 1970’s the incarcerated inmates did not enjoy the protections enshrined by the 14th amendment. However, after long hours courtroom discussions, and debates the incarcerated were provided with some rights from the 14th amendment, while some were kept by the state. Among the rights provided to the prisoners under the 14th amendment were right to medical and mental treatment; the right to fair treatment, and protection from cruel punishments; the freedom from race based segregation, except in the case where the security and wellbeing of the individual are at stake; and the freedom to access the court for review of grievance. The rights that have been curtailed from the incarcerated person are the freedom of speech; the right to privacy; and the right to hearing under certain circumstances. The reason why these rights are curtailed is that the person in prison has to pay the penalty for his immoral and criminal conduct (Warren, 1926). Conclusion The term reconstruction of the constitution used in the early phases of independence was rightly coined. The Bill of Rights, the Abolition of slavery, and the 14th amendment along with others were very well placed. They established a launching pad for the socio-political development the most remarkable nation in the history. The 14th amendment in particular was a juncture that gathered the reconstructive gems from the last 13 amendments, and lead America into a new era of social equality, justice, and protection. References Call, J. L. (1961). Fourteenth Amendment and Its Skeptical Background, The. Baylor L. Rev., 13, 1. Gamble, B. S. (1997). Putting civil rights to a popular vote. American Journal of Political Science, 245-269. Kirby, T. (1982). Demoting 14th Amendment Claims to State Torts. ABAJ, 68, 166. LII / Legal Information Institute,. '14Th Amendment'. N.p., 2015. Web. 19 Nov. 2015. Stein, D., & Bauer, J. (1995). Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants. Stan. L. & Pol'y Rev., 7, 127. Sunstein, C. R. (1994). Homosexuality and the Constitution. Ind. Lj, 70, 1. Warren, C. (1926). The New" Liberty" Under the Fourteenth Amendment. Harvard Law Review, 431-465. Read More