The Fourteenth
It’s a cold November day. Good day to hear some Guns and Roses, and head back to Senior Government class!
https://www.youtube.com/watch?v=8SbUC-UaAxE
The Fourteenth Amendment to the Constitution changed the nature of our United States. From “…We the people of the United States…” of the preamble, establishing a federal government of sovereign states in 1787, the Fourteenth Amendment demonstrated the results of victory in Civil War, with the final outcome of one nation, indivisible.
The Fourteenth extends the requirements of the Bill of Rights to the states. No longer were those rights applied to just the Federal government, now each state government needed to protect them. Section 1 of the Amendment is clear:
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.
In our current political climate, the Fourteenth Amendment has immense significance. To start with the “easy” argument, the plain language of the Amendment states that “all persons born or naturalized in the United States…are citizens…” The foolishness put forth by the President, demanding the altering birth-citizenship laws, would require a Constitutional amendment to change the Fourteenth.
The key provision of the Fourteenth is the “due process” and “equal protection” clause. Due Process is interpreted to mean that before a “right or privilege” is taken away (life, liberty, or property, voting) there needs to be a process where the citizen is given the opportunity to argue their side. This often is in a Court setting: the most recent example would be the denial of CNN’s Jim Acosta’s First Amendment right to freedom of the press by kicking him out of the White House Press Room. CNN sued the White House because there was no “due process” provided Acosta for the removal, and while the case is not yet resolved, a Federal District Judge has found enough validity in Acosta’s arguments to temporarily order the White House to allow him back in.
“Equal Protection” means that all citizens must be treated the same. This is a critical issue today; questions of voter suppression in some states, religious rights and LGBTQ issues, and ICE actions towards American citizens of Hispanic descent; all raise equal protection issues.
The clause of the Fourteenth Amendment that is less discussed today is the second clause.
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.
Parts of this clause have been changed by Amendment. The 15thAmendment specifically guaranteed the right to vote to any race. The 19thAmendment allowed women to vote, and the 26thAmendment added those eighteen to twenty to the electorate. This clause guaranteed suffrage, the right to vote, to everyone, and threatened to punish states that restricted suffrage by reducing the number of Representatives in the House of Representatives (and therefore the number of Electors for President.)
While that punishment was never exacted, even in the Jim Crow Era of grandfather clauses (you couldn’t vote unless you grandfather could) and literacy tests; today it might be a cause to invoke in voter suppression cases, particularly in places like Georgia. If the state acts to suppress votes, particularly with a clearly racial bias, it would violate not only the equal protection clause of the Fourteenth and the Voting Rights clause of the 15th, but also the “denial of voting rights” clause. The state should either stop suppressing, or lose representation.
The Fourteenth Amendment can be read historically as the legal implementation of victory in the Civil War. But its implications are much more far-reaching, as it defines citizenship, and expands protection of rights from just the Federal government to the States. It should serve as a tripwire in our current era of regression and control; and remind us as well of what the alternatives are to protecting the law: Civil War that created in blood what could not be done by legislation.
