ILLEGAL IMMIGRATION - Birthright Citizenship | Eastern North Carolina Now

    While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the 14th Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.

    So, while the Court seemed to recognize that there were problems with the 14th Amendment's ratification, it decided that Article V questions are non-justiciable political questions. It seems that whenever the Congress and the Secretary of State proclaim an amendment to be ratified, that proclamation is binding on the Court and "would not be subject to review by the courts." While the wisdom of applying this political question doctrine to declared amendments is questionable, the Court has been true to its word in Coleman, as it has not decided a single Article V case since. Still, the ratification process of the 14th Amendment has never been reviewed by the Supreme Court and, in light of Bush v. Gore (2000), the political question doctrine may have lost favor with the Court. So, while a federal court would likely be unreceptive to an argument claiming the 14th Amendment invalid, it would make for an interesting affirmative defense. The 14th Amendment will, undoubtedly, remain a part of the Constitution, but as one commentator has stated, "no one ever became rich by predicting what the Supreme Court would do from one generation to another." We should at least be aware of its irregular adoption and guard against such constitutional disrespect in the future. Congress should also seriously consider re- proposing the Amendment if it is concerned with preserving Equal Protection and Due Process for future generations.

    The ratification story of the 14th Amendment, which shows the irregular and likely unconstitutional process by which it has been declared part of our Constitution, demonstrates that a major cornerstone of constitutional law is placed on a shaky and uneasy foundation. Un- fortunately, although one may wish to remedy the constitutional wrongs committed during its ratification, it is apparent that this cornerstone amendment should be left in place, lest the entire house of higher law as we know it should come toppling down. It is not too late, however, to shore up the foundation of constitutional jurisprudence. Congress and the states should re-propose and ratify the 14th Amendment, and thereby ensure the principles of equal protection and due process which the Amendment guarantees.

    Reference: Douglas H. Bryant, "Unorthodox and Paradox: Revisiting the Fourteenth Amendment," Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf