Abstract

Excerpted From: Lynette Perez, The 14th Amendment from Homer Plessy to Kilmar Abrego Garcia: Citizenship and Due Process in America’s Constitutional Evolution, 59 Creighton Law Review 281 (2026) (104 Footnotes) (Full Document)

The 14th Amendment stands as one of the most consequential and contested provisions in American constitutional law. Born from the ashes of the Civil War and the moral imperative to secure citizenship and equal protection for formerly enslaved Americans, the 14th Amendment promised to revolutionize the relationship between individuals and government power. Yet from its earliest interpretations in cases like Plessy v. Ferguson to contemporary disputes exemplified by the case of Kilmar Abrego Garcia, the 14th Amendment’s promises have proven both transformative and elusive.

Homer Plessy’s challenge to Louisiana’s Separate Car Act in 1896 represented one of the first major tests of the 14th Amendment’s Equal Protection Clause. His case, though unsuccessful, laid the groundwork for constitutional arguments that would eventually dismantle state-sanctioned segregation. More than a century later, Kilmar Abrego Garcia’s wrongful deportation and subsequent legal battles illuminate ongoing struggles over citizenship, due process, and the limits of executive power--struggles that echo the constitutional debates of the Reconstruction Era.

This Article traces the constitutional journey from Plessy to Garcia, examining how interpretations of 14th Amendment citizenship and due process protections have evolved while fundamental tensions remain. The thesis of this Article is that contemporary challenges to citizenship and due process rights, exemplified by Garcia, represent not constitutional aberrations but the continuation of America’s foundational struggle to define who belongs in the American constitutional community and what protections that membership entails.

This historical examination is particularly relevant today as the nation grapples with executive orders challenging birthright citizenship, immigration enforcement controversies, and the scope of constitutional protections for non-citizens. Understanding this constitutional evolution is essential for practitioners, scholars, and jurists working to fulfill the 14th Amendment’s egalitarian promise in the 21st century.

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THE UNFINISHED PROMISE OF THE 14TH AMENDMENT The constitutional journey from Homer Plessy to Kilmar Abrego Garcia reveals both the transformative potential and persistent limitations of the 14th Amendment. The Amendment’s promises of citizenship, due process, and equal protection have proven capable of revolutionary change, dismantling state-sanctioned segregation and expanding constitutional protections to previously excluded groups. Yet these same promises remain vulnerable to political and judicial retrenchment, as contemporary challenges to immigration rights and birthright citizenship demonstrate.

Garcia serves as a contemporary reminder that constitutional rights require institutional commitment and political will to maintain their vitality. When government officials refuse to comply with federal court orders enforcing constitutional protections, those protections become meaningless regardless of their formal existence. This dynamic mirrors the post-Reconstruction period, when political compromise and judicial retrenchment undermined the 14th Amendment’s guarantees.

Understanding this historical pattern is essential for contemporary constitutional advocates, practitioners, and jurists. The constitutional principles that ultimately vindicated the civil rights movement remain available to defend against contemporary challenges to constitutional rights, but their effectiveness depends on sustained advocacy and institutional commitment to constitutional governance.

For practitioners in the Eighth Circuit and beyond, this history suggests several crucial lessons. First, constitutional advocacy must be willing to advance bold arguments even when immediate success seems unlikely, as today’s dissents may become tomorrow’s majority opinions. Second, constitutional progress requires coalition-building and sustained political mobilization, not merely legal argument. Third, constitutional rights are only as strong as the institutions and individuals willing to defend them against political pressure.

The 14th Amendment’s promise remains unfinished, but its potential for transformation remains intact. Whether that potential is realized will depend on the willingness of advocates, practitioners, and jurists to defend constitutional principles against contemporary challenges and to continue the long struggle to fulfill the Amendment’s egalitarian promise. The journey from Plessy to Garcia is not yet complete, and its final destination remains to be written by current and future generations of constitutional advocates.

In this moment of constitutional challenge, we must remember Justice Harlan’s prophetic words in Plessy: “The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.” Contemporary challenges to immigration rights and citizenship protections plant similar seeds of division and exclusion. The constitutional response to these challenges will determine whether the 14th Amendment continues to serve as a charter of liberation or suffers the fate of the Reconstruction Amendments in the post-Plessy era-- formally recognized but practically unenforced.

The choice is ours, and the Constitution awaits our answer.

Chief Deputy City Attorney for the City of Little Rock, Arkansas, within the Eighth Circuit. She received her BBA from the University of Notre Dame and her MPA, cum laude, from the University of Nevada, Las Vegas.