TOOL OF THE DAY: 14th Amendment cannot be abridged by legislators

CATEGORY: Family Law Statutory

When you are trying to understand where and who changes the rules in family court decisions, it can seem like you are thrown into a circle of power. The judges will tell you that your legislator makes the rules. And the legislators will tell you that the judges have discretion. So where does the power really lie?

One might make you think that there is a power struggle to be decided here. But that's not the case really. Things were settled long ago.

In fact, you might be surprised to know (a little phrase the attorneys like using) that the states themselves were sent the 14th amendment after Congress passed it through and asked if they wanted to ratify it. The president at the time didn't exactly agree with it and wanted to make sure the states understood this. The states ratified the restrictions that the 14th amendment placed on them and this was certified by Secretary of State William Seward on July 28, 1868.

The 14th amendment was passed by Congress in June of 1866 and can be found in volume 14, page 358 in the book of statutes called "United States Statutes at Large."

The reason I say "the states ratified the restrictions that the 14th amendment placed on them" is because their agreement to protect your rights means that they knew that they would have to institute restrictions on violating these rights. Hence applying due process.

The fourteenth amendment to the Constitution considered:

the right to pursue any lawful trade or avocation, without other restraint than such as equally affects all persons, is one of the privileges of citizens of the United States which can not be abridged by state legislation / dissenting opinions of Mr. Justice Field, Mr. Justice Bradley, and Mr. Justice Swayne, of U.S. Supreme Court, in the New Orleans slaughter-house cases.*

A good way to start your opening statement if the statutes in your state continue to lack the proper due process protections in them would be to list the main fundamental parental rights and a statement something like:

I am aware that this court may believe that the statutes (you don't need to list them in your opener but make sure that you are prepared to address them at an instant that cover best interest, appointing GALs, appointing court facilitators, ordering custody evaluations, psych evaluations, etc.) are what determine whether or not I have these rights. However, I believe that all of my rights are privileges that I have as a citizen of the United States which cannot be abridged by state legislation without proper due process. (Then you will need to be prepared to make a brief statement on what the proper due process is. See my posts on strict scrutiny and due process violations.)

Now when you are faced with the argument that the statutes authorized the court to violate your parental rights you can confidently object and present your argument to the contrary.


When you attend these webinars you can learn more about how you can get better results by changing how you are approaching situations with the other parent.

You can learn more about how to reason through your rights and protect your rights in our booksand courses. Click at the top on Store and you will find the booksand trainingtabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]

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Come back to this blog every day this year and you will find another valuable tool posted to help you protect your family, your hard-earned money, and your ability to continue to pursue your life dreams with your child by your side.

Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author

Divorce Solutions and Child Custody Solutions

Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)

Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)