Does the 14th Amendment give people the liberty to break laws and constitutions? Are laws and constitutions themselves a violation of the 14th amendment? Can the government deprive people of their liberty to use drugs for recreational use, hire prostitutes, gamble, etc? Any law places a restriction on someone's liberty, correct?
No. The 14th Amendment says no person may be deprived of life, liberty, or property without due process of law. There's an argument the legislative procedure must meet certain requirements, but the fact it was passed is certainly capable of being due process (and normally would be due process).
It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow. Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment.
In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.
The 5th amendment of the US constitution reads: No person shall ... be deprived of life ... without due process of law and the 14th amendment reads: ... nor shall any State deprive any person of life... without due process of law In Roe v Wade the majority opinion expressly acknowledged: The appellee and certain amici argue that the fetus is a &quot;person&quot; within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. (emphasis added) The majority in Roe v Wade then concluded: the word &quot;person,&quot; as used in the Fourteenth Amendment, does not include the unborn In Dobbs, the majority instead stated: Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion ... all of the States may evaluate the competing interests and decide how to address this consequential issue ... There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point. [numerous citations] One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests) ... Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. In conclusion, though it is recognized in Roe v Wade that if the unborn is considered a &quot;person&quot; then there is a &quot;right to life&quot;, no justice has indicated in an opinion (including concurring or dissenting opinions) that &quot;person&quot; in the constitution includes the unborn.
[C]an this decision really be used as legal precedent for birthright citizenship for tourists and illegal immigrants? Yes. If the case did not depend on the fact that they were lawfully resident in the US, then it would apply to those who are not lawfully present in the US. For the case to apply to some people but not others, there must be a distinguishing difference that is relevant to the analysis of the case. The question then is whether lawful residence is a distinguishing difference here, and it seems that no court has ruled on the question. Referring to current events, it would be possible for the executive branch to assert that the 14th amendment does not grant citizenship to one born in the US of parents who were not lawfully present. This would end up in court. For example, such a person could sue to compel the government to issue a passport, or, if the government sought to deport such a person, the person could assert US citizenship in deportation proceedings. At that point, the court would have to rule on the question, whereupon it would almost certainly rule that the 14th amendment does grant such citizenship. See, for example, Plyler v. Doe, in which the court ruled that illegal immigrants in a state are within its jurisdiction for the purpose of the equal protection clause. It would be odd indeed for the court to rule that the same word means something different in the previous sentence. Furthermore, in a footnote, the court writes [W]e have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that &quot;[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . .&quot; ... [N]o plausible distinction with respect to Fourteenth Amendment &quot;jurisdiction&quot; can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. You ask: [H]ow is it that foreign diplomats' children born in United States do not have birthright to US citizenship because they are not &quot;subject to the jurisdiction thereof&quot; and children of tourists and illegal immigrants do have the birthright to US citizenship? Consider what happens when an illegal immigrant commits a crime in the territory of a US state: the person is subject to trial and punishment in the state's criminal justice system. A foreign diplomat who commits a crime, on the other hand, or indeed the child or other family member of a foreign diplomat, is immune from prosecution. That is what distinguishes diplomats from illegal aliens such that the first sentence of the 14th amendment applies to the latter, but not the former.
Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged.
The main relevant bit of constitutional law is Employment Division v. Smith, 494 U.S. 872, where it was held that a general law against use of peyote does not violate the Free Exercise clause, though in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 a law specifically designed to restrict Santeria animal sacrifices is an undue burden on religion. The Employment Division court cites Cantwell v. Connecticut, 310 U.S. 296 and Wisconsin v. Yoder, 406 U.S. 205 as the only cases where the First Amendment prevents a generally applicable law from applying in a religious context, which the court notes "are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections". The TRO doesn't go into detail about the reasoning: Based on the materials presented and the arguments of counsel, the court finds: (1) Plaintiffs are likely to succeed on the merits of their claim alleging a violation of their First Amendment right to the free exercise of religion So it is hard to say on what grounds the plaintiffs are likely to succeed. The governor's order is a bit peculiar, because it initially looks like a neutral 10-person limit on gatherings, but on the one hand makes an exception for religious events by allowing any number of people "officiating" so sets the limit on participants (advantage to religion, not constitutional), but then also includes numerous exceptions to the order, including schools, day-care, food pantries, detox centers, shopping malls, restaurants and so on. The set of exceptions is large enough that one might conclude that this is an undue burden on the exercise of religion. The breadth of the number of exceptions undermines claims of "necessity" which are crucial to any order that closes churches.
The 13th to 15th Amendments to the U.S. Constitution are called the &quot;civil war amendments&quot; as they were enacted in the fallout from the U.S. Civil War. The 15th Amendment specifically addresses racial discrimination in voting rights, which was emerging as an issue a federal occupation of Southern states was receding and the segregation regimes that persisted until the 1960s, almost a century later, replaced slavery (which was abolished, de jure, and to a great extent, in practice). The 13th Amendment abolishing slavery, comes very close, because at the time that it was adopted, slavery was almost exclusively imposed on African-Americans (the Emancipation Proclamation during the Civil War was the proximate legal cause of ending slavery for most U.S. slaves, although it took a fair amount of time to be fully implemented because the U.S. did not control much of the territory it applied to at the time). The 14th Amendment was also race conscious, not by its express text, but by what is displaced. Section 1 removed the denial of citizenship for former slaves (an almost entirely African-American population), and expressly required the state to afford the new citizens equal protection of the laws and due process. Section 2 removed the three-fifths compromise from Congressional apportionment that had counted African-American slaves as less than a full person in the pre-14th Amendment status quo. Section 4 invalidated efforts to pay reparations to former slave owners. Specifically, they state: 13th Amendment Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have power to enforce this article by appropriate legislation. 14th Amendment 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. Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 15th Amendment Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have the power to enforce this article by appropriate legislation. When Justice Scalia meant said that: The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. He is putting the equal protection clause of Section 1 of the 14th Amendment in the context of the rest of Section 1 of the 14th Amendment, which gave to former slaves citizenship (implicitly a race based change) that was fortified with provisions including the equal protection of the laws that they had been denied before it was adopted while all other adult men of those days had. More broadly, he is discussing this in the larger context of the Civil War Amendments and in the context of the legislation that was enacted by Congress pursuant to the enforcement clauses of the 13th, 14th and 15th Amendments. What these amendments do to protect racial minorities is to give them equal treatment when prior to their enactment they were given unequal treatment. Brown v. Board of Education which he discusses in the same breath, furthermore gives the 14th Amendment its modern meaning overruling Plessy v. Ferguson whose &quot;separate but equal&quot; interpretation of the equal protection clause of the 14th Amendment had facilitated the Jim Crow regimes of segregation in the South because after more than half a century it had become clear that separate was almost never actually equal in practice. As a footnote, the 14th Amendment Privileges and Immunities clause in Section 1 of that amendment was intended to be the greater of the Section 1 protections, but was gutted early on by the Slaughterhouse Cases that interpreted it in a manner that made it virtually irrelevant, continues to be good law. There is no Brown v. Board of Education counterpart overruling the Slaughterhouse cases the way that Brown repealed Plessy. Where is written in the 14th Amendment that race is a protected minority? The context and legislative history of the equal protection clause of the 14th Amendment, as enforced by contemporaneous enforcement legislation adopted by Congress, was clear to all in its meaning (even to textualist leaning originalists like Justice Scalia) that it first and foremost applied to the discrimination based upon race and former condition of servitude that the 15th Amendment called out explicitly. The notion of a &quot;protected minority&quot; isn't a very clean or helpful way to think about what the 14th Amendment does, however. Instead, it prohibits de jure legal discrimination based upon race and upon other factors that have been determined to constitute impermissible means of making legal distinctions. The notion of the 14th Amendment and anti-discrimination laws as conferring special treatment on &quot;protected minorities&quot; has not been the story of American civil rights law, unlike the case in Canada, for example, which uses a legal theory framework of vindicating and benefiting oppressed minorities, rather than less ambitiously, merely aiming for racial equality in the law. Justice Scalia's choice of words in the quoted material reflects the cultural lean of conservative politicians in the U.S. who have often tried to frame anti-discrimination law in this way, contrary to most (but not quite all) U.S. civil rights law legal theory (voting rights have more of a anti-oppression model, in part, due to the relevant Congressionally enacted enforcement legislation, especially the Voting Rights Act).