Civil liberties

The Fourteenth Amendment: The Naturalization Clause

• Context of the Clause

•     * The clause establishes citizenship and the criteria for attaining it in the United States.     * Globally, citizenship is generally established through two methods: Land (jus soli) or Blood (jus sanguinis).     * This clause was created specifically to counteract post-Civil War attempts (such as Black Codes and Jim Crow laws) to deny African Americans citizenship at the state level.

• Criteria for Citizenship     * The amendment grants citizenship to any person born on the land within the territorial borders of the United States.     * It does not distinguish based on the parents' legal status (whether they are legal citizens or illegal residents).     * It explicitly ensures citizenship cannot be prevented due to previous conditions of servitude.

• The Dred Scott Decision ($1857$)     * This case occurred prior to the Civil War.     * Dred Scott was an enslaved person whose ownership passed to his owner's brother; he moved to a state where slavery was outlawed and sued for his freedom and citizenship.     * The Supreme Court ruled that despite residing in a free state, he was not entitled to federal or state citizenship.     * The Fourteenth Amendment was designed, in part, to correct this Supreme Court decision.

• Historical and Selective Interpretations     * Native Americans: The Supreme Court historically ruled that children born on tribal lands were not automatically granted citizenship. This was eventually overturned by the Indian Citizenship Act passed by Congress in the $1920s$.     * Chinese Immigrants: In a case involving children of Chinese parents (many of whom worked in the West Coast railroad industry), the court ruled that these children were to be automatically granted citizenship, aligning with the Fourteenth Amendment.

• Contemporary Challenges to the Clause     * Executive orders were signed in $2019$ and $2025$ attempting to reinterpret the amendment to exclude children of non-citizens from automatic birthright citizenship.     * Legal observers expect the Supreme Court (which heard the case earlier this month) to strike down these orders as unconstitutional, as the Constitution can only be changed via an amendment, not a presidential executive order.

The Fourteenth Amendment: Due Process

• Types of Due Process     * Due process rights originate from elements of the Fifth and Fourteenth Amendments.     * There are two primary forms: Procedural Due Process and Substantive Due Process.

• Procedural Due Process     * This is the right of individuals to be treated equally under the same circumstances when the government intenta to punish them or take property/rights.     * The strictness of the process scales with the severity of what is being taken:         * Minor penalties ($200$ dollar fines): Relatively low process requirements.         * Major penalties ($1,000,000$ dollar fines): Stricter process.         * Freedom (Jail/Prison): Very strict process.         * Life (Death Penalty): The most stringent process, often involving decades of appeals to ensure rights were upheld.     * Core Requirements:         * Notice: The government cannot take action (e.g., bulldozing a home) without providing notice and time to respond.         * Non-vague Standards: The government must follow clearly established, non-arbitrary steps.         * Right to Appeal/Rebut: Individuals must have the opportunity to challenge accusations or penalties.

• The Rochin v. California Case ($1950s$)     * The LAPD/LA County Sheriff entered a suspect's home at $2$ AM with a warrant.     * The suspect swallowed pills to avoid a possession charge.     * Police physically abused him and forced his stomach to be pumped to retrieve evidence.     * The Supreme Court ruled this a violation of due process; the state had the right to seek evidence but violated the established process by using physical force and intrusive medical procedures vs a set legal standard.

• Substantive Due Process     * These are concrete, detailed rights that are often more controversial and may not be explicitly listed in the Constitution (unenumerated rights).     * Right to Privacy Examples:         * Search and Seizure: Protection against unlawful searches, though nuanced (e.g., Face ID can be used by police to unlock phones, but codes cannot be forced).         * Stop and Frisk: A controversial NYC policy allowing police to search individuals without prior suspicion, often criticized for targeting minority communities.         * Property Enforcement: Local governments using drones to identify violations (e.g., un-fenced pools in New Jersey), highlighting the limits of "air rights."         * Digital Privacy: Concerns regarding companies collecting and selling geolocation, photo, and motion data.     * Personal and Bodily Autonomy Examples:         * Right to Live with Family: Laws used to restrict women living together (labels like "brothels") being challenged.         * Medical Refusal: The right to refuse life-saving care (e.g., CPR which can be violent and break ribs/chest plates).         * End-of-Life Decisions: States like Oregon and Washington allow medically assisted death under narrow criteria for debilitating diseases.         * Reproductive and Personal Relations: The right to same-sex relations and the (now overturned) right to abortion in Roe v. Wade ($1973$) were based on substantive due process and bodily autonomy.

The Fourteenth Amendment: Equal Protection Clause

• Core Principles     * Governments may not deny people equal protection under the law; everyone must be treated the same under the same circumstances.     * It is the basis for most discrimination lawsuits against the federal government, private organizations, or individuals.

• Protected Categories     * Discrimination is illegal based on: Race, Religion, National Origin (e.g., bans on specific countries), Color, Disability, Age, Pregnancy, and Sexual Orientation.     * Pregnancy Protections: Pregnancy is a protected status. Under Title IX, students cannot be penalized for missing classes or assignments due to doctor's appointments or pregnancy-related issues.     * Sexual Orientation Status: This was only recently added in $2020$ following the Gerald Bostock case (Bostock v. Clayton County), where an employee was fired after joining a gay softball league. Justice Neil Gorsuch authored the opinion protecting these rights.

• Legal Forms of Discrimination     * Economic and standard-based discrimination is permitted:         * Job Qualifications: Experience levels ($5$ or $10$ years) and degree requirements.         * Mandatory Retirement: Specific ages for airline pilots, FBI agents ($59$ years), or truck drivers to ensure safety.         * Discounts: Student, senior citizen, and military discounts.         * Airline Pricing: Current controversy regarding the use of AI and data to assess wealth and charge individuals different seat prices based on their perceived ability to pay.

The First Amendment: Religion and the Establishment Clause

• The Five Elements of the First Amendment     * Speech, Assembly, Press, Religion, and Petition/Grievances.

• The Establishment Clause     * States that "Congress shall make no law respecting an establishment of religion."     * Historical Reason: To avoid the British model of an official state church (The Church of England led by the Monarchy).     * Interpretations:         1. There can be no official church of the government.         2. The government must be non-biased and not pick sides between religions.         3. Separation of Church and State (the metaphorical "Wall of Separation").

• Potential Violations and Controversies     * National Symbols: "In God We Trust" on currency, "Under God" in the Pledge of Allegiance (added during the Cold War to distinguish the US from atheist communists).     * Public Events: Official chaplains in Congress, National Days of Prayer, and prayers before high school football games.     * Symbols in Public Buildings: The Court differentiates based on context. In $2005$, a Texas display of the Ten Commandments was allowed because it was grouped with other legal artifacts; a Kentucky display was disallowed because it stood alone in a lobby without context.     * Current Events: A Texas Court of Appeals recently ruled that public schools may display posters of the Ten Commandments.

The First Amendment: Free Speech

• Strict Scrutiny     * The government can only restrict speech in extremely narrow circumstances using the "Clear and Present Danger" test.     * Fighting Words: Speech designed to incite immediate violence is not protected.     * Protected Rhetoric: Violent or hateful rhetoric is generally legal as long as it does not call for immediate action.

• Key Case: Brandenburg v. Ohio     * Involving a leader of the KKK calling for government overthrow.     * The Supreme Court ruled that individuals can advocate for the duty or necessity of violence as long as they do not incite immediate violence.

• Speech Restrictions     * Illegal acts involving speech: Shouting "Fire!" in a crowded theater (risk of trampling) or using speech to facilitate a crime (e.g., hiring a hitman on Craigslist).     * Speech Plus: The combination of speech with other actions like protesting or assembly.     * Property and Permits: First Amendment rights do not apply to private property (e.g., Publix). On public property, the government uses procedural due process (permit applications) to manage protests.     * Free Speech Zones: On public university campuses (like VSU), free speech zones (e.g., the Quadrangle) are open to the entire community, not just invited guests.

• Brown vs. Board of Education:

  • Overturned segregation laws, affirming equality under the law per the Fourteenth Amendment.

Questions & Discussion

• Question: Can a cop force you to open your phone?     * Response: Yes and no. If you have Face ID enabled, they can hold it to your face and force you to look at it. If it is a code, they can ask but cannot force you to give it up.

• Question: Is it discrimination to charge different prices based on weight for airlines?     * Response: That is a good question. Airlines can require people to purchase two seats if they cannot fit in one, which is an indirect measure. I expect the court would rule they could do that, but we would have to see.