Union and States’ Rights by Cogan Neil H.;

Author:Cogan, Neil H.;
Language: eng
Format: epub
Publisher: University of Akron Press

Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737, 1749–50 (2007).

11. “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.” U.S. Const. amend. XIV, § 1. This language derives from the Civil Rights Act of 1866, 14 Stat. 27 (1866), with a change from excepting persons “subject to any foreign power” and “Indians not taxed” to those “not subject to the jurisdiction of the United States.” Many supporters of the statute believed that the 13th Amendment made blacks citizens when it abolished slavery. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 899 n.157 (1986) (citing United States v. Rhodes, 27 F. Cas. 785 (C.C.D. Ky. 1867) as exemplifying this view). For example, Senator Benjamin Wade said: “I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States; but by the decisions of the courts there has been a doubt thrown over that subject; and if the Government should fall into the hands of those who are opposed to the views that some of us maintain, those who have been accustomed to take a different view of it, they may construe the provision in such a way as we do not think it liable to construction at the time, unless we fortify and make it very strong and clear.” Cong. Globe, 39th Cong., 1st Sess. 2768 (1866) (remarks of Sen. Wade). The Framers of the 14th Amendment shared this view but wished to eliminate any remaining doubt on the question. See Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us about Its Interpretation, 39 Akron L. Rev. 289, 295–97 (2006). For a review of the legislative history, see Garrett Epps, The Citizenship Clause: A “Legislative History,” 60 Am. U. L. Rev. 331 (2010).

12. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1.

13. David A. Strauss, The New Textualism in Constitutional Law, 66 Geo. Wash. L. Rev. 1153, 1155–56 (1998). Strauss has made the same argument elsewhere:

In the decades leading up to the Civil War, respected political and legal figures advanced serious legal arguments, claiming descent from Jefferson’s Kentucky Resolutions, in support of the right to secede. No amendment adopted after the Civil War settled this question, either expressly or by any reasonably direct implication.

Yet the question has, without doubt, been settled. The person on the street would say that the Civil War settled it, and that person would be right. The Civil War settled it, even though no formal amendment was added to the Constitution.

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