The Fabulous Fourteenth
I should begin by stating that I am not now, nor have I ever been, an attorney, although I did work at a large law firm for five years as a mailroom/office clerk. As I hope you will see, though, the law is open to interpretation by anyone. I know people with brilliant legal minds who never took the bar exam, and I met attorneys who I swear had to be helped to tie their shoelaces.
The 14th Amendment, ratified on July 9, 1868, was designed in part to grant newly freed slaves citizenship. It wasn’t totally successful, because the 15th Amendment gave them voting rights (supposedly) on Feb. 3, 1870, a right they’re still fighting for. The 14th has so many other attributes, some legal scholars have called it the crown jewel of the Constitution. Section 1 contains what I consider the key elements, so I’ll come back to it after going over the other sections.
Section 2 reiterates the selection of Representatives to the House, determined by state population, and establishes the penalty of losing some of them if the voting rights are denied to any males (it would be another fifty years before women won the vote, in the 19th Amendment).
Section 3 states no one can hold office if they previously engaged in insurrection or rebellion against any state or the government, after taken the oath to serve. This disability can be removed by a 2/3 vote in each House.
Section 4 says the validity of the public debt of the U.S. shall not be questioned. Last year, when Republicans threatened to vote against raising the debt ceiling, and causing the country to default on its debt, many scholars argued that the President could invoke this clause, thus avoiding default. It further absolves the government from assuming the debts incurred by the Confederate States during the Civil War.
Section 5 is a single sentence reaffirming all of the above.
Alright, here is Section 1. I have added Roman numerals so for ease of dissection later:
(I) 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
(II) No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States;
(III) nor shall any State deprive any person of life, liberty, or property, without
the due process of law;
(IV) nor deny to any person within its jurisdiction the equal protection of the laws
I – This part has the right-wing twisting in their knickers, because it means that children born to undocumented workers (or anyone else who may be visiting) become automatic U.S. citizens. These are the “anchor babies” the Right is hysterical about. They want a Constitutional amendment removing this passage. If that were to happen, we could encounter the law of unintended consequences. As soon as it became law, not only would these ideologues cease to be U.S. citizens, they would immediately become illegal aliens! So would the rest of us. In fact, the only citizens remaining would be legal immigrants who had passed the citizenship test and taken the oath. I think that would be hilarious.
II – This part means that any state which passes a law that, say, bans marriage between same sex couples, has abridged the privileges of an entire segment of the population, a right granted by IV, the so-called equal protection clause. In the same way, those voter ID laws in something like 30 states act to disenfranchise certain demographics of would-be voters — minorities, the elderly, and students — all of whom tend to vote for Democrats. I think that any such law would violate this equal protection, and therefore be unconstitutional. Proposition 8, passed in California in 2008, actually removed the rights of same sex couples to marry, which was already in the state Constitution. Similarly, DOMA, or the Defense of Marriage Act, says that states don’t have to recognize marriages of same sex couples married in a state which permits it. This is also unconstitutional, in that it is in direct conflict with the “Full faith and credit” clause in the main body of the U.S. Constitution (Article IV, Section 1) which says states must recognize the laws of other states.
III – The due process clause repeats the wording in the 5th Amendment. Among other things, I would think it allows the families of the four murdered students at Kent State in 1970 to sue the state whose National Guard fired the shots. These students were deprived of life and liberty without due process of law.
IV – Ah, the sacred Equal Protection of the Law clause. As I read it literally, it means same sex couples must have the same rights to marry as everyone else. Also, women must be paid the same as men for doing the same work, so all those attempts to pass the ERA (Equal Rights Amendment) over 40 years were unnecessary. It’s all right here. Going back to those states which passed laws banning same sex marriage, they are in violation of this amendment; they are depriving gay couples of the equal protection of the law. Then there’s the “supremacy clause” of Article VI, Section 2. It states that federal law always trumps state law. This is why the Civil Rights Act overruled, say, Alabama’s “reluctance” against serving black people at the Woolworth’s lunch counter. It also came into play when troops enforced integration of schools and universities in Alabama, Mississippi, and Arkansas.
At least some of these injustices are being addressed. The Department of Justice has challenged voter ID laws in two states, and there will probably be more.
I don’t know why more suits aren’t being brought as violations of “equal protection of the law.” Maybe that’s why the Republicans are always pushing for tort reform.
Incidentally, it was the equal protection clause that formed the basis for Ted Olson’s argument in Bush v Gore, that because different counties in Florida counted their ballots differently, it violated Mr. Bush’s rights. The Supreme Court bought it, and the rest, as they say, is history. If this sounds unbelievable, then you don’t know how devious lawyers can be. You could also say this was a very conservative court which was determined to find in favor of Bush, and you’d be correct. The law is a slippery thing, and lawyers are very slippery customers. The law is a lot like the Bible — it’s all in how you choose to interpret it.