Limits of interpretation: critiquing a lay reading of the 14th Amendment

Please note that this post is from 2012. Evaluate with care and in light of later events.

The Fourteenth Amendment to the Constitution of the United States remains arguably one of the most controversial, complex, and challenging pieces of Constitutional text. It is also the subject of my third article in a series on typical problems in lay readings of the Constitution.

The Amendment has five sections, but it is the first that inspires most interpreters (see also
If the Fourteenth Amendment didn’t exist, could Obama still be President?:

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.

The various sentences and phrases of Section 1 are generally referred to as (1) the Citizenship Clause; (2) the Privileges and Immunities Clause (it has been almost entirely ignored by the Court, which has instead preferred to favor the power of individual states to do as they wish); (2) the Due Process Clause; and (3) the Equal Protection Clause.

Michael J. Nellet’s “How The Left Redefined The Term ‘Rights’” highlights one rightward-leaning interpretation of the Amendment:

The argument of “equal protection under the law” being thrown around by social activists today and especially the Democrats … has also distorted what the 14th Amendment says. It is clearly spelled out … and pertains to either American-born citizens or “Naturalized” citizens, period!

Reading Section 1 should make it clear that Nellett’s argument that the 14th Amendment “pertains to either American-born citizens or ‘Naturalized’ citizens, period” actually applies only to the Citizenship Clause (and likely to the Privileges and Immunities Clause), not to the 14th Amendment as a whole.

The Due Process Clause specifically says “any person,” while the Equal Protection Clause specifically says “any person within its jurisdiction.” (Both apply only to individual states, but the Fifth Amendment is considered to provide equivalent protection against the federal government, and it refers to “any person.”)

The 14th Amendment underdetermines possible readings — in other words, more than one interpretation is reasonably possible — but Nellett’s mistake illustrates my point that this does not mean that any reading is possible. Nellett is wrong when he writes,

In other words, if you come to this country ILLEGALLY, the only right you have is to be deported right away back to your country of residence, PERIOD.

Whatever exact rights to due process you may have are subject to interpretation, but the Constitution is clear that even “illegals” have some such rights.