 Good morning, everyone. My name is Professor Vanille Urando. I am Professor Emeritus at the University of Dayton School of Law, where I taught law at UD for 24 years. But overall, I taught law for almost 30 years. I was a nurse before that. This presentation is a short lecture on, as you can see, the 14th Amendment, Race and Undocumented Immigrant. What I hope to do is spend about 15 or 20 minutes just giving you a legal background on the legal status of undocumented or immigrants or illegal immigrants, and then send some in some amount of time discussing it. So the first thing we need to start off with is that there was a very specific reason for the 14th Amendment. The Civil War, depending on who you ask, why the Civil War was fought, many people will say, well, the Civil War was fought over state rights. And that's true. It was fought over state rights, the right of states to control the institution of slavery. It wasn't just rights in general. It was, we want slavery be to maintain, and the North was like, no, we want slavery to be gone. Our restricted more in the South decided that they didn't want those restrictions, and so they wanted to be able to maintain and control the institution of slavery. As a result of the Civil War and the North winning the Civil War, three amendments were adopted specifically to address the indicia of slavery, to say, OK, blacks are no longer slaves, but if we don't provide some protection, then the South will continue to treat them as slaves. And so the 13th Amendment abolished slavery outright. And I say most forms of slavery, because some people don't realize is that the 13th Amendment exempts certain kinds of slavery. And I'll have a, I'll do a, I plan to do a lecture on the 13th Amendment and also on the 15th Amendment. The 14th Amendment was designed to get rid of the indicia of slavery and to provide a number of protections. The 15th Amendment was done to guarantee the right to vote. So this is the 13th, 14th, and 15th Amendment. Reconstruction amendments designed to undo the indicia of slavery. We're going to talk about the 14th Amendment now. So the 14th Amendment was involved the history of the passage. So one of the things I wanted to do is talk about the history of the passage of the 14th Amendment. It was passed by Congress. So in order to amend the Constitution, a process has to occur. The amendment can start in the state, but it also can start in Congress. And so it started in Congress by Congress passing. In 1866, the Reconstruction Amendments, the 14th Amendment. There, it has to be ratified by two-thirds of the eligible sons, who I always laugh when people say, oh, we've got a racist president talking about Trump. I'm like police. Most of the United America's presidents were racists. And some of them as virulent as Trump. And Andrew Johnson was one of those. And he was vehemently opposed to the 14th Amendment. And there's some gossip that says that, I shouldn't say gossip, historians, some historians say that he actually didn't sin because the president, the Congress asked. And then the president sins the past recommended amendment on to the states. And there's some confusion because it appears that Andrew Johnson refused to pass it on to the states and said, like, I'm not passing this on. And that it was actually his secretary, one of his secretaries, Stevens, who passed it on without even telling Johnson that he was doing it. Southern states refused. They said, well, you know what? You may have won the war, but you can't make us turn them into anything that talked about black people then. So all of the southern states refused, with the exception of Tennessee. Tennessee was the only state that didn't refuse to pass the 14th Amendment. So Congress had to go back and pass the Reconstruction Act of 1867, basically requiring southern states to ratify the Reconstruction Amendment in order to be readmitted to the union. And so the states, the first state to pass was Connecticut. 28 states then followed. Ohio and New Jersey passed, ratified the amendment, and then rescinded the ratification. So they came back later and repass it again. But it's interesting to know that this was not without controversy, as you can expect. Louisiana and California refused to ratify the amendment initially. Ultimately, they did, especially as all the other states, southern states, began to ratify and got admitted. So the amendment was formally ratified in 1868. It's interesting to note, especially that there is, up until as late as 1957, those southern commentators took the position that the amendments was not a legal amendment because it was forced on the southern states. And so anything they did, anything that the southern states did, was done under the rest. That argument didn't maintain any weight with the Supreme Court or the Congress. And so the amendment was ratified. So I'm just going to quickly go through the entire 14th amendment, but we're only going to deal with section 1. But I want you to know the particular things that are in the 14th amendment and why they're in there. We're going to talk about section 1 in detail. So section 2, if you remember, that one of the compromises in the Constitution was to make black people only two-fifths, I mean, excuse me, count three-fifths of a person in apportionment for the US House of Representatives. And so this section 2 removes that and says, no, everybody will be counted as a whole person, including the free African descendants of enslaved people. It also guaranteed the right to vote to all male citizens over the age of 21 or older. Section 3 basically said, if you are involved in the insurrection or rebellion against the nine estates, you can't hold any elected or appointed federal office. So the section, obviously, was intended to prevent farmer Confederate military officers and politicians from holding federal offices. Section 4 basically said, hey, we're not going to reimburse you for whatever monies you think you lost by having to free the enslaved people and that are in the debts incurred by the Confederacy and a guarantee that the North's debts would be repaid and that the Southern states would have to help pay for the Civil War. Section 5 granted Congress the power of enforcement. This is important because it means that the president isn't responsible because all the power of enforcement is generally housed in the executive branch. And this specifically says, no, no, no, power enforcement is housed in the Congress. It also, interesting enough, took away the power of enforcement from the Supreme Court. So the Supreme Court, which was a pro-slavery court, would not be able to turn around and overtly interpret everything in a way that would maintain pro-slavery. So section 1 is the section we're going to deal with. I'm just going to read it here and then we'll move through it and do sort of statutory interpretation, like I would teach my students how all persons born are naturalized in the United States comma and subject to the jurisdiction there of comma are citizens of the United States and the state here wherein they reside, period. No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States of my colon. Nor shall any state deprive any person of life comma, liberty comma or property comma without due process of law, cement colon, nor deny to any person within its jurisdiction the equal protection of laws, period. One of the reasons I read all of the punctuation marks is because punctuation marks are important for statutory interpretation. And pretty much a period or a cement colon represents a new clause that is kind of interpreted independently from the other clause so that you can. So if you use that framework, there are basically five clauses in the first section of the 14th Amendment. The first clause says that all is commonly understood to be the citizenship clause. All persons born are naturalized in the United States and subject to the jurisdictions thereof are citizens of the United States and the state wherein they reside. This was an essential clause in order to overturn an 1875 Supreme Court decision, Dred Scott, which basically said that the only persons who are citizens of the United States are white persons. And I really want to emphasize that because often when I teach race and race and white people will say, why are you always talking about race? Why do you always talk about white people? I'm white because you're all there. You put it in law that only white people could be citizens of the United States. And there's a whole stream of laws about how to become white under the law. I'll do a lecture on that sometime. So clearly African descendant people aren't white people born in the United States. Also the courts, the Dred Scott decision said, also if you are a naturalized white person, you can be, if you immigrated to the United States and are naturalized, you are a citizen. So obviously free slaves fell into neither one of those sections. And because law never dies, that's the other thing people don't understand. If a court doesn't come along and overrule the law or the Congress don't come along and change the law, it doesn't matter how old the law is, it is still good law. That's what we teach students. It's good law. And so without this amendment, citizenship clause, people could argue that under Dred Scott's Supreme Court, black freed slaves weren't citizens. There are a number of us that have interpreted this. I've got links on my webpage to these cases, if you wanna take a look at them. One of the reasons Elkins work as Wilkins is an important case because it looked at the citizen rights of Native Americans. And one of the things to look at the citizenship clause is that you just can't be born or naturalized in the United States. You have to be subject to the jurisdiction of the United States. Well, Native Americans are sovereign entities and people subject to Native American sovereignty are not subject to the jurisdiction of the United States, not directly. And so that case sort of dealt with that. We ultimately had the Indian Citizenship Act of 1924 brought indigenous people into American Citizenship but until 1924 indigenous people were not American citizens. We have the Privileges Are Immunities Clause and the interesting thing about this is that we have in the fifth amendment another Privilege Are Immunities Clause. So this clause says no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. There haven't been a lot of cases on this and that's primarily because of the Slaughterhouse cases of 1873 in which the Supreme Court distinguished rights as a US citizens from rights as a state citizen. And the ruling basically held that this clause only guarantees things that could be seen as federal rights. So the right to petition Congress, the right to vote for national offers, offices, the right to enter public lands, those are all considered federal rights. What is not considered a federal right is a business life. So in theory, a state can impose all laws that restrict privileges and immunities of citizens that is just specifically to states. And so essentially the Slaughterhouse, the Privilege Are Immunities Clause became, was interpreted exactly in the way that already existed. So that's not really different than what had already existed under the law. The Due Process Clause nor shall any state deprive any person of life, liberty or property without due process of law. Now this is an important thing to distinguish. Up until this point, we've been talking about citizens and here they talk about person. And so the question, the assumption is when there's a change in language, it's for a reason. It's not just dramatic. So there is a difference between person and citizen. And the question becomes, what is that difference? When you look at cases, the cases incorporated due process rights, the bill of rights to the states because up until 14th Amendment Due Process Clause, there was some sort of assumption that the bill of rights was a federal right and did not have to be respected by the state. The Due Process Clause basically said, no, no, no, you, the state, the bill of rights apply to the state. And so what you have, map versus Ohio that said, that looked at the right of privacy, you have Gideon versus Wayne Wright, which said you have a right to counsel, Roe versus Wade, right of privacy, abortion and Obergefell versus Hodges, which is the most recent case that did a Prusa process claim due process clause analysis, looked at same sex marriage. Now, due process under the 14th Amendment can be divided up into two kinds of understanding. Persexual due process, which is how, what is required to happen to you if the state is trying to take away your property, your life, your liberty, you have to be given notice, you have to be given an opportunity for herring, discovery, available, all of the things that we tend to associate, you know, a right to counsel, a right to remain silent, these are all procedural due process claims. Substantive due process claims are based, which is also based on fundamental fairness, evaluate whether the law at all can be applied, not whether the procedure is correct, but whether the law can be applied. And it generally dealt with specific subject areas, like you can divide a substantive due process into economic substantive due process, things that dealt with labor conditions, baking, natural resources and non-economic substantive due process, things that dealt with right to privacy, abortion, family, relationships, that sort of thing. So the final clause in the 14th Amendment is to protect equal protection clause, nor deny to any person within this jurisdiction the equal protection of the laws, okay? So this came about largely because of the fear of discrimination under the law, formerly enslaved people. And in fact, a fear that actually realized because Klessy versus Ferguson actually established the doctrine that said, okay, you know, you don't have to give them the exact same thing, you don't have to ride with black people, you don't have to sit by black people, you don't have to eat white black people as long as separate but equal. I grew up doing Jim Crow. Jim Crow existed until the Civil Rights Act of 1964 when I was a young adult by then. And so the whole separate but equal doctrine even under equal protection, which I think is important to remember, law interpretation changes on who is in power, who's on the courts, which is why the Republicans have been adamant about not only filling up the Supreme Court, but the lower courts. And that's a whole nother discussion about why the lower courts may be more important than the Supreme Court or equally as important as the Supreme Court. Okay, so from there we went to the Klessy versus Ferguson was established that separate but equal did not violate the equal protection law. So that's basically, they could have said, yeah, you, this equal protection means equal and if you're giving them something different then you're treating them different, but they didn't say that. And so for almost a hundred years, separate but equal was the law of the land. Brown versus Board of Education overturned the doctrine as related to Cation and specifically. Loving versus Virginia basically said, yeah, you can't tell people who to marry because there were a lot of laws on the book saying that black people couldn't marry white people. So that was 1967, many of you all were warned at least in children at that time. Regents of University of California versus Bakke was about affirmative action and Bush versus Gore equal protection in the voting. Looking at these causes then, how does this deal with illegal immigrants and do they have constitutional rights? And the answer is yes. I mean, there are two arguments that people try to assert. First, they say illegal immigrants don't appear in the Constitution, right? Lots of things that we have guaranteed don't appear in the Constitution. Constitutional interpretation says the Constitution covers it. They say, we the people of the United States, this is an argument that they put forth. We the people of the United States refers only to the legal citizens. The Supreme Court has consistently, no Supreme Court has ever said that was true, that we the people only refers to legal citizens. One of my frustrations on running my Facebook page, Race in the Law, is people will get on saying the law says this and the law says that. And I'll say, are you saying should say it or does say it? If you're saying should say it, okay, that's your opinion. And okay, no one can argue with that. If you're saying does say it, then you're wrong. The law does not say that. And so one way, one place to look at is the start with what the framers actually thought they were doing. So I wanna go to slide 13 and then I'm gonna come back to this slide. The things we do when we look at statutory and constitutional interpretation is we go to the recorded history, the hearing. This is why hearings are so important. Because hearings give you an idea of what people are thinking when they were going about framing the law. Not that you're bound by it because the constitution is considered a living document. And so to the extent that it's a living document, things can and should change based on the changing needs of the society. Start with, when we look at what the framers says, there's, we have a couple of quotes. One is the last two clauses of the first section of the amendment, disable a state from depriving not merely a citizen of the United States, but any person common, whoever he may be of life, liberty or property without due process of law, or from denying to him the equal protection of the laws. So this person clearly identified a difference between citizen and person and says any person is protected by this quote. This abolishes all class legislation in the States and does away with the injustice of just sub of subjecting one cast of persons to a code not applicable to another. It, and they mean the 14th amendment will if adopted by the States forever disabled every one of them from passing laws, trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. So clearly the framers when working on the equal protection cause clearly saw themselves applying this to anyone who happened to be within the jurisdiction of the United States. So then we need to take a look at some of the cases because there are some notable cases that have dealt one way with some aspect of this. So that versus whoa is a case involving the rights of Chinese immigrants. Basically, they were legal immigrants who had not been naturalized. So they weren't naturalized as required under the citizenship clause, but they had children. And so the question was, what was the status of their children? And the court using the fifth 14th amendment said, hey, equal protection under the law because long wing versus the United's plate apply the citizenship blind nature of the constitution to the fifth and sixth amendment stating, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments. And that even aliens shall not be held to answer for capital or other infamous crime unless they on a presentment or indictment of a grand jury, nor be deprived of life, liberty of property without due process of law. Yopka Yamatka versus Fisher said, an alien who has entered the country and has become subject in all respects to its jurisdiction and a part of its population, although alleged to be illegal is still protected by equal protection. Plyer versus Doe was a law that Texas passed prohibiting the enrollment of illegal aliens in public school. In this decision, the court held the illegal aliens who are plaintiffs in these cases challenging the statue may claim the benefit of the equal protection laws which provides that no state shall deny to any person within its jurisdiction the equal protection of laws. Whatever his status under the immigration laws an alien is a person in any ordinary sense of that term. The undocumented status of these children does not establish a submission rational basis for denying them benefits that the state affords other citizens, other residents, excuse me. So clearly when we look at the legal standing right now is that the immigrant status of a person within the borders of the United States is irrelevant to equal protection and constitutional rights. Now there are some constitutional rights there are some constitutional rights that are only given to citizens such as the right to vote at this right to bear arms. But in terms of equal protection of the law and in terms of due process rights the immigrant status is irrelevant to those which may be why Trump is working really hard to keep asylum seekers out of the country because if they're not within the borders of the United States that's a different issue about what rights they may have because they're not persons within this jurisdiction of the United States. The United States have laws related to asylum thinking which they would still be required to implement but the issue of equal protection and due process rights might be different. I haven't actually looked at that in detail and so I don't wanna say with certain that it is but I think that that may be one of the reasons Trump is working real hard. In the final analysis the courts have ruled that while persons are within the borders of the United States, undocumented immigrants, illegal immigrants if you wanna use that term are granted the same fundamental undeniable constitutional rights that are granted to American citizens. So this was always intended to be short. There's a selected bibliography that you can look at when some things on the internet and think myracism.org has a lot of information on the 14th amendment. It also has links to all the cases that I cite too. I put the links to Wikipedia instead of the cases themselves. My feeling is that the cases, unless you're interested in reading the cases it takes a lot of reading and interpretation to understand them. And so Wikipedia is as good of a reference site for starting a research as anything as a reference site. So I want to sort of end on this idea of just say thank you and to encourage you to follow me on Facebook, not on Twitter, I put stuff on Twitter but I forget to look at it. I have my personal website is at profvirandal. You can follow that. And my racism in the law site is race in the law. Like I said, the video will be up on YouTube and then the slides are available free, I mean available to Patreon. So you'll have to be a patron to get it and you can sign up as a Patreon and you can do it one time and cancel it and get the slides if that's what you want to do.