Amend the 14th Amendment

A proposal that there be enacted in the House and Senate in Congress assembled:

A Bill

to restore the original understanding of the Fourteenth Amendment as to equal protection of the laws, and to clarify and rationalize the framework for citizenship policies, and for other purposes.

Whereas recent rulings from the federal judiciary have been forthcoming that, by historical standards, can only be called amazing; and

Whereas the basis for these rulings has been principally the Fourteenth Amendment, and in particular the principle of equal protection of the laws; and

Whereas the wording of the Fourteenth Amendment is indeed sweeping and extensive, lending itself to such rulings, an egregious recent example being the finding that persons of like gender being united under law must be afforded all the rights of marriage, along with all attendant consequences that impact on adults, children, and institutions outside of the union itself, these rulings posing a number of adverse social complications because the rulings construe constitutional text in the vacuum of legal theory in disregard of the documented historical, biological, psychological, and social evidence that demonstrate that not all sexual and family arrangements are created equal; and

Whereas the merits of domestic arrangements other than the historic standard of a man and woman united in loving commitment to one another and to their children have not been scientifically confirmed beyond a reasonable doubt, and indeed have been called into question by the social statistics that link poor child outcomes to other domestic situations, showing that the alleged absolute “human” or “constitutional” right of “any persons” to marry is at best an artifact of legal theory rather than a scientific finding, so that the Supreme Court’s presumptuous rulings in this matter must not be simply accepted, but must be returned to the public for robust debate and resolution by the democratic process, and

Whereas if equal protection requires the full acceptance under the law of homosexual unions, then it presumably also requires the full acceptance under the law of polygamous unions despite the demonstrated social problems associated with these, and

Whereas to thus expand what the law considers to be marriage and family undercuts the entire framework of decency law, either abolishing it entirely or turning it into a universal chilling force against all utterances regarding “family” or reproductive matters that anyone might consider offensive, thereby squelching debate of issues of public importance, and

Whereas the Fourteenth Amendment, if it is to be so interpreted, must necessarily result in other rulings even more remarkable (if that is possible) than the foregoing, such as that persons of any age be equally subject to possible military draft; that States may not distinguish between drunk and sober applicants for driver’s licenses, that no law may be enacted distinguishing between smokers and nonsmokers in access to any public building, that no State may grant a business license to any enterprise that distinguishes between smokers and nonsmokers on its premises; that no State may make a distinction in law between those who smoke one substance and those who smoke another; that the full rights of citizenship immediately accrue to any person upon setting foot within U.S. borders (because, after all, such people are “persons” and are at that moment “within the jurisdiction of the United States” and therefore, if we are to read the 14th Amendment literally in a vacuum, they are entitled to “equal protection of the laws” including the right to vote and hold public office); and that corporations, being persons according to a recent ruling of the Supreme Court, accordingly have the right to marry, along with all attendant rights such as the right to raise children, which will be commercially convenient if ever medical science advances to the point of being able to gestate babies routinely in the laboratory for commercial sale; and

Whereas the unisex society that some people believe the Fourteenth Amendment requires is not fully vindicated by the evidence, being controversial even among educational professionals, some of whom complain that sexually integrated classrooms have interfered with academics of both sexes and have hindered girls’ interaction with the type of material that might advance their career-readiness, so that the role of gender in society is something warranting ongoing debate, and as such is not appropriate for resolution by court decree, and

Whereas it is patently clear that the writers of the Fourteenth Amendment never envisioned such interpretations; and

Whereas the restoration of its correct understanding requires that its wording be replaced with other wording that is more explicit as to the original meaning of equal protection; and

Whereas the errant laws, policies, and rulings that relied on an erroneous application of equal protection must not be grandfathered in place, but just as importantly, that the laws, policies, and rulings that relied, or may later rely, upon other provisions of the Constitution shall remain unaffected, and

Whereas the Fourteenth Amendment also deals with the issue of citizenship in a manner that is problematic and in sore need of attention, the subject of citizenship being distinct from the more general subject of equal protection as discussed above, but nonetheless difficult to separate from it because of the way the Fourteenth Amendment reads and because the subject of citizenship involves the subject of child-adult relationships, so that it is constitutionally difficult to remedy the problems of equal protection and marriage without also remedying the problems of citizenship, and

Whereas equal protection and citizenship in the Fourteenth Amendment must be understood in the light of their historical context, which clearly indicates that its writers did not intend that government may never make any distinction between persons for any reason, nor that persons having no significant connection with the United States would be given automatic citizenship (the writers did not intend that the phrase “subject to the jurisdiction thereof” would refer to any momentary connection of the person to the United States, but rather to a significant relationship. Unfortunately, due to the form of language in the 19th Century being wielded by less-than-clairvoyant writers, their meaning has been misunderstood by modern courts), and

Whereas there must be a clear policy regarding the qualifications for citizenship; the status of noncitizens; and the status of children involved in unusual child custody situations, in nonstandard domestic relationships, and in new technological forms of procreation, which, despite their questionable merits, are increasingly occurring and may involve children having connections to foreign nationals, so that some policy will be needed regarding the citizenship of children caught in such arrangements; however, whatever policies are chosen must not create legal support for questionable domestic arrangements in a way that is deleterious to either the children involved or other persons; and

Whereas there have recently been great waves of foreigners coming unlawfully into the country in such numbers that the courts are unable to handle the caseload in accord with presently accepted standards of due process, allowing large numbers of people to remain in the country without valid reason and without supervision and with a low chance of ever being properly handled by immigration policy, a situation which may enable, if it has not already, politically active elements either foreign or domestic to utilize American due process as a means of thwarting the actual application of due process, thereby rendering our immigration laws effectively void, but

Whereas there are many noncitizens currently in the United States unlawfully whose immediate deportation may be inadvisable for various reasons, a situation that a constitutional amendment should leave in the hands of the American political process, and

Whereas the status of corporations under the Bill of Rights, and the Constitution generally, has become a potential problem area, in that the Supreme Court has found that corporations have certain rights such as the freedom of speech as pertains to political campaigns and the freedom of religion as pertains to nonprofit religious corporations, which is not a problem except that it muddies the waters as pertains to whether all rights of citizenship therefore accrue to corporations, and if they do, then the right of marriage and adoption may also, a situation which, as noted above, could lead to some serious problems, so that we must be careful that when we correctly reserve the term “citizen” to natural persons only, we neither revoke the valid and necessary rights of citizens acting corporately nor confer upon corporations any new and unusual rights never before envisioned that will lead to absurdities; therefore

Be it enacted that the following Amendment to the Constitution of the United States be officially submitted to the States for ratification pursuant to Article V of the Constitution of the United States, to wit:

An Amendment to the Constitution of the United States

Section 1

Section 1 of the Fourteenth Amendment to the United States Constitution stands repealed.

Section 2

Each natural person who, between birth or other emergence from gestation and the fifteenth anniversary of that event, shall have been physically present within and subject to the jurisdiction of the United States for not less than three thousand two hundred eighty seven days, is a citizen of the United States and of the State, territory, or possession wherein he resides.

Section 3

Each natural person who is naturalized into the United States is a citizen of the United States and of the State, territory, or possession wherein he resides.

Section 4

Each natural person who is born or otherwise emerges from gestation into the substantial and legal custody of a United States citizen and also into the jurisdiction of the United States; is a citizen of the United States and of the State, territory, or possession wherein he resides. Notwithstanding, during any interval of time before that natural person has been present within and subject to the jurisdiction of the United States for three thousand two hundred eighty seven days between birth or other emergence from gestation and the fifteenth anniversary thereof, during which interval of time the substantial and legal custody of that natural person ceases to be with at least one citizen or ceases to be under the jurisdiction of the United States, the natural person’s citizenship is thereby suspended, and shall remain suspended until the child is returned to the custody of a citizen and under the jurisdiction of the United States, or until qualifying for reinstatement under other provisions of this amendment, or as Congress may otherwise by law provide.

Section 5

If a natural person is born or otherwise emerges from gestation into the substantial and legal custody of a United States citizen but not into the jurisdiction of the United States, the natural person shall not be a citizen but shall become such immediately upon being made subject to the jurisdiction of the United States, from which point Section 4 shall apply.

Section 6

Insofar as, and only insofar as, a child’s legal and substantial custody is held by no specific natural person but only by an organization, for example an orphanage, the child’s custody for citizenship purposes shall be reckoned as follows: If the site of the child’s principle care is within the United States or possession thereof and is incorporated under and regulated principally by the law of a jurisdiction in the United States, the child shall be deemed to be in the custody of U.S. citizens; otherwise not.

Section 7

This amendment shall not be construed as securing to unlike domestic relationships any equality or legitimacy under the law beyond establishing the citizenship of children affected by their custody as provided herein.

Section 8

The laws of the United States or any jurisdiction therein that regulate the terms of child custody shall not be deemed to be altered by this amendment except to the extent of Sections 10 and 18. This amendment shall not be construed as compelling uniformity of custody laws.

Section 9

In the absence of applicable custody law of the United States or a jurisdiction therein, applicable foreign law shall define custody. In the absence of applicable foreign law, common law shall define custody.

Section 10

Laws of the United States or jurisdictions therein restricting custody shall be valid only to the extent that the laws restrict it for purposes other than simply controlling citizenship. This amendment shall not be construed as otherwise limiting the ability of a State or other jurisdiction to change its custody laws, and if the State or jurisdiction does so, the citizenship status of the affected child shall be, where required by this amendment's provisions, correspondingly changed; but for its timekeeping purposes the changes shall not be counted retroactively. Likewise, if the applicable law changes by reason of the child transferring to a different jurisdiction, the citizenship status shall be, where required by this amendment's provisions, correspondingly changed; but for its timekeeping purposes the changes shall not be counted retroactively.

Section 11

No State shall make or enforce any law that shall abridge to citizens of the United States 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 apply, by reason of race, ethnicity, or national origin, to citizens within its jurisdiction unequal protection of laws applicable to them, nor to noncitizens lawfully present under a given set of federally issued permissions unequal protection of laws applicable to them; nor to noncitizens unlawfully present within a given federal classification unequal protection of laws applicable to them.

Section 12

Nothing in this amendment shall be construed as diminishing to noncitizens the protections they enjoy of the first, third, fourth, eighth, and thirteenth articles of amendment to this constitution.

Section 13

Nothing in this amendment shall be construed as diminishing to noncitizens lawfully present the protections of the fifth, sixth, and seventh articles of amendment to this constitution. Nonetheless, these protections shall not be construed to extend the noncitizen’s terms of allowable presence beyond the time interval or circumstances for which they were issued.

Section 14

Nothing in this amendment shall be construed as diminishing to noncitizens unlawfully present the protections of the fifth, sixth, and seventh articles of amendment to this constitution, except that Congress shall have power to provide for the expeditious deportation of noncitizens unlawfully present, including the temporary deportation of any such noncitizen who, if not deported while awaiting hearing of his case, poses a significant likelihood of escaping supervision. Insofar as Congress shall have provided, the deportation of any citizen unlawfully present need not be delayed to accommodate an indictment by Grand Jury for any offense nor to accommodate the right of trial by jury in a suit at common law in excess of twenty dollars. The deprivation suffered by a noncitizen unlawfully present, by his deportation pursuant to law, of the enjoyment of his property or lawful advantages situated within United States borders, shall not constitute grounds to prevent the deportation; nor, except as Congress may otherwise provide, shall any compensation be due him because of this loss of access to his property or lawful advantages. Notwithstanding, the property or lawful advantages shall not be thereby forfeit, but the said noncitizen shall retain such rights as may remain available to him to manage, take advantage of, remove from within the United States in accord with law not based on citizenship per se, or otherwise dispose of such property or lawful advantages from outside the borders.

Section 15

This amendment shall not be construed as affecting the various urgencies or priorities applied to the deportation of various classes of noncitizens unlawfully present, insofar as those urgencies or priorities are established by Congress or by the Executive Branch, each acting in accord with its proper constitutional powers.

Section 16

The citizenship of any natural person who possessed it prior to the ratification of this Amendment shall not be called into question by reason of this amendment.

Section 17

This amendment shall not be construed as altering the rights and the limitations on rights of corporate persons, but shall not be construed as altering the ability of applicable governing authorities to regulate the care of children by corporate persons.

Section 18

Acts of Congress, State laws, judicial or regulatory rulings, licenses, and other policies, insofar as their validity rests upon provisions of Section 1 of the Fourteenth Amendment (now repealed) that have not been carried forward in this new Amendment shall, to the extent of that reliance, be null and void; but insofar as they rest on other grounds not in conflict with this new amendment, their validity shall be unaffected by this new Amendment.