‘No patent medicine was ever put to wider and more varied use than the Fourteenth Amendment.’
~ William O. Douglas
In conjunction with the 13th Amendment, the 14th was one of the landmark pieces of legislation in endowing universal suffrage. This Amendment was passed on July 9th, 1968 after being bitterly contested by former slaveholding states. The history of this fight is well documented and debates continue on whether the methods used to pass it were ethical. It was ultimately passed and finished the goal of the Civil War in order to grant universal freedom to the former slaves.
Unfortunately the passage of the 14th Amendment didn’t end the suffering of the black citizens of the United States; but between the 13th and the 14th Amendment there were tools built into the Constitution to allow Civil Rights Cases. The text of the Amendment is broken into several sections and reads as such:
‘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.’
This section of the Amendment details of who is a citizen. This was critically important in allowing black former slaves the full rights of US Citizens. It also prohibited the states from treating the black citizens different under the eyes of the law. For many decades this was not the case in southern states, but this will be discussed in detail later.
‘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.’
This section repealed the 3/5ths compromise in the body of the Constitution and restated that black males be given full rights for voting and running for public office in accordance with the law of the time.
‘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.’
This clause in the amendment basically nullifies the legislative votes of states that participated in the Civil War until congress saw fit to grant them their rights again. This was the poison pill that ensured the southern states fell in line with the 14th Amendment to give former slaves their due rights; if they refused and the amendment passed, then they would simply be denied a voice in the national government. This is the most controversial and frankly unethical part of the amendment that is mostly forgotten in modern times.
‘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 power to enforce, by appropriate legislation, the provisions of this article.’
Essentially this clause says that debts incurred during the rebellion are valid, but loss of net worth by the emancipation of the slaves would be considered null and void. It also allots to Congress the power to enforce this Amendment by legislation deemed appropriate.
On the surface level it appears that the 14h Amendment was the solution to the problem of what to do with the slaves once they were freed; however, it is widely known that this Amendment didn’t stop any kind of legal discrimination and Supreme Court cases were heard over and over again regarding various violations. While many of these hearings were worthwhile, the 14th Amendment has become the weapon wielded by activist judges during the last century to overreach and push a political agenda. Since there are so many cases regarding the 14th Amendment I will only detail a few of the most landmark cases.
On May 17, 1954, the United States Supreme court ruled on one of the most famous cases in history: Brown v. Board of Education of Topeka. This case involved several suits against education districts that maintained laws segregating public schools. The initial suits were dismissed by the district courts, stating legal precedent that the doctrine of “Separate but Equal” had been upheld previously. In 1952 the Court accepted a writ of certiorari and heard the case. When the justices were unable to reach a consensus they heard arguments again in 1953. After the second round of appeals the court finally reached a unanimous decision in favor of Brown. They found that government funded institutions cannot segregate based on race.
The precedent that set up this case was Plessy v. Ferguson (1896). Not long after the passage of the 13th and 14th Amendments, the wounds of the Civil War were still fresh in the minds of the nation. Many Southern States (and some Northern) enacted segregation laws in regards to facilities. Louisiana had such a law that required separate train cars for blacks and whites. A suit was brought to the Supreme Court that alleged violation of the 14th Amendment’s protection of universal rights for citizens.
This case was decided in favor of segregation in what would go down as one of the worst Supreme Court decisions in its short history. A 7-1 opinion ruled that separate facilities were allowed to be required by law, provided they were of equal merit and quality. It must be noted that Justice Brown acknowledged that the provisions of the Amendment were meant to extend to all things as equal; however, he interpreted it to mean that provided it was equal, separation based on race was okay by the constitution.
The 14th Amendment is most often associated with the Civil Rights movement of the 1960s and rightly so; however, in this history it’s easy to forget that its protections extend to all US Citizens. In Regents of the University of California v. Bakke (1978) the supreme court ruled in favor of a white man, stating that racial quotas for hiring and admittance to places of learning violates the 14th Amendment. This came about because Mr. Bakk was denied entrance into a medical school because they had set aside a number of slots for minority students specifically.
It’s at this point that the issue of privacy again comes up into the conversation. The 14th Amendment guarantees the rights and privileges of the Constitution to all citizens. Discussed previously, the right to privacy doesn’t exist within the Constitution; only the enumerated rights are guaranteed by the Constitution and granted its overarching protections. The 14th Amendment is often used to justify the slow creep of large federal government.
One of the most egregious of these overreaches took place recently with Obergfell v. Hodges (2014). This is the landmark case that allowed federal governance over same-sex marriages as recognized by the government. The standard response from LIbertarians and Conservatives is that the federal government shouldn’t have been involved in this issue in the first place. While this is true, it can also be true that this is an overreach of the 14th Amendment and another example of the Supreme Court overstepping its Constitutional authority.
One of the prevailing arguments from the people in favor of this decision is that same-sex couplings should get the same benefits as married couples; this was particularly contentious in regards to tax benefits that married couples receive from filing federal taxes jointly. While it is good to acknowledge this inequality, it’s also important to recognize the difficulty between this inequality and the rights of states to govern themselves as they see fit.
Same sex marriage is not mentioned in the Constitution so falls directly under the 10th Amendment right of the States to legislate as they see fit. Marriage shouldn’t be an issue at all, seeing as the Constitution requires all states to recognize licensures of other states. This means that a marriage license issued in one state is required to be recognized by another. In essence, this part of the Constitution already enforced the right of same-sex couples to marry and be recognized federally.
What the Supreme Court did in this instance was strip away the rights of people to live and govern their state as they saw fit within the bounds of federal laws. This has been slowly and steadily happening over the course of the past 100 years, particularly in the era of Roosevelt when he famously threatened to pack the Supreme Court with activist judges if they kept striking down his New Deal policies. The federal overreach starts with the Supreme Court and it needs to end there. That is a separate issue that can be addressed elsewhere.
For now, let’s regard the 14th Amendment with the reverence it deserves and caution ourselves from using it as a bludgeon to force the federal government further into our lives.