Monday, September 28, 2015

The Fourteenth Amendment - Permanent Shockwaves

As promised in the last issue, we'll tackle the Fourteenth Amendment by itself this time.  Outside of the amendments in the Bill of Rights, probably no other amendment to the Constitution has a greater effect on our daily life and political discourse than the fourteenth.

It was ratified on July 9, 1868 as one of the "Reconstruction Amendments", often being grouped together with the 13th and 15th, as we discussed in the last blog.  Let's begin with the actual text (also one of the longest of the amendments):

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.

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.

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.

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.

Now, let's tackle each section one at a time, but not get too terribly deep into the weeds.
Section 1:  This contains several clauses, referred to as "The Citizenship Clause", "The Privileges and Immunities Clause", "The Due Process Clause" and "The Equal Protection Clause".  This amendments, and this section in particular, is one of the most-litigated parts of the Constitution.  It was the basis for such famous decisions as "Roe v Wade" (abortion), "Bush v Gore" (the 2000 presidential election) and "Obergefell v Hodges" (same-sex marriage).
The Citizenship Clause is in the news these days as the country debates our immigration policy.  Historically, it's been understood that anyone born on U.S. soil is automatically a citizen, based on the first part of the first sentence - "All persons born or naturalized in the United States...".  This partial sentence leads to what some critics call "anchor babies" - children of illegal immigrants who, by virtue of being born in the U.S. are automatically citizens.  The critics point out that the second part of the sentence "...and subject to the jurisdiction thereof" excludes "anchor babies", as their parents, and therefore, the babies, are subject to the jurisdiction of another country in terms of actual citizenship, and therefore, cannot be citizens of the U.S. based simply on the geography of childbirth.  This clause was also the basis of overturning the notorious "Dred Scott" decision. It also excluded Native Americans who maintained tribal citizenship and loyalty (the option for them to become U.S. citizens was gradually offered over the next century or so).  Surprisingly, the Supreme Court has never issued a definitive opinion on the subject of the "anchor baby" debate.  This could get interesting...
The Privileges and Immunities Clause ensures that one state cannot discriminate against the citizens of another state in terms of fundamental rights.  It does not apply to commerce (for example, a professional license in one state does not automatically transfer to another).
The Due Process Clause ensures that no state may deprive anyone of life, liberty or property without specific legislative guidance.  This clause has also been employed by the Supreme Court to "incorprate" the Bill of Rights against the states, meaning that the protections of the Bill of Rights apply to all levels of government, not just the federal.
And finally, the Equal Protection Clause is the basis for much of the Civil Rights cases, including "Brown v Board of Education" and the previously mentioned "Obergefell".  It has been interpreted to ensure that citizens' rights in one state are upheld in all others.  As you may imagine, its scope is vast, and seems to increase as time passes.
Section 2: This changed the manner in which the states' populations are counted for representation purposes.  It effectively nullified the "Three-Fifths" clause in Article I of the Constitution, which counted only 3/5 of a state's slave population.  It also provides for a state's representation to be reduced if it wrongly denies any (male) citizen's right to vote (adding women to this clause would happen with the passage of the 19th Amendment 50 years later....)
Section 3:  Effectively bans traitors and rebels who formerly held office from ever again holding office.  Yes, this was mostly a punishment for former Confederate officers and officials, but notably, the bans on General Robert E. Lee and Confederate president Jefferson Davis were posthumously lifted about a century later.  Also, such a ban can be lifted by a two-thirds vote in Congress on a case-by-case basis.
Section 4:  This declares that all debt held by the United States is not to be questioned or put in any sort of jeopardy.  It also ensured that the federal government was not liable for loss of slaves or property in the Confederacy.  In a more contemporary context, this is the basis for the debate over the "debt ceiling".  A literal reading of the section might imply that having a debt ceiling at all is unconstitutional, since the federal debt is not to be put in doubt as to its validity or the federal government's ability to pay.  Some analysts argue that the president has the implied power to raise the debt ceiling so as not to violate that tenet, but others insist that the president has no power to do so, as all revenue bills must originate in the House of Representatives, according to Article I of the Constitution.  The pragmatists will argue that our debt, legitimate or not, cannot be forever increased and must be addressed strongly.  But that's an argument outside the actual language of the amendment.
Section 5: This is boilerplate language that becomes common in amendments, giving Congress broad latitude to enact laws pursuant to the amendment in order to put is provisions into effect.

Well, that's a large amendment, with far-reaching effects, and will continue to do so for as long as our country exists, in all likelihood.  Hope you've stayed awake and with me so far.
Next up: The "Election Amendments"

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