Updating the fourteenth amendment

12-May-2017 20:05

The federal government did not even attach rights to citizenship.

In fact, there was no clear definition of citizen-ship at all in federal law. Supreme Court’s infamous decision in (1858), which denied citizenship to all people of African descent, did not resolve the question because it was such an outlier and generated such controversy.

The Fourteenth Amendment thus dramatically changed the legal order of the United States, transforming all Americans’ relationship to rights and the federal government.

If they think about history at all, they assume that it is this way now because it was always that way. The legal context that so many of us now take for granted traces back to the Fourteenth Amendment, which established birthright citizenship, linked citizenship to civil rights and provided for federal oversight of those rights.

When asked in 1863 to determine whether African Americans could be citizens of the United States, Attorney General Edward Bates’s answer underscored the ambiguity of citizenship generally. And it was not just slave states that restricted Americans’ rights.

All states limited or negated the rights of African Americans, all women, many propertyless men, and a range of other racial, ethnic, and religious minorities as well.

But the fact that states also had broad powers to regulate in the name of the public good made those rights contingent, not absolute.

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The application of rights, moreover, tended to preserve existing inequalities because they were intend-ed to uphold the interests of those who owned property, not those without.They also “shall be subject to like punishment, pains, and penalties.” The act made the denial of rights a crime and prescribed penalties for convicted offenders.