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"

The Civil War and Reconstruction - Amendments 13-15 (and the 24th), Plus a Special Treat

After another unforgivably long gap, and another pilgrimage to the National Constitution Center, it's time for the next installment.  In keeping with my earlier plan of grouping similar amendments together, this set is pretty handy, as they are all close together chronologically and in subject matter.

Often called the Reconstruction Amendments or Civil War Amendments, numbers thirteen fourteen and fifteen all deal with the causes and effects of the Civil War and its aftermath.  They were ratified during and after the war (13 - 1865, 14 - 1868 and 15 - 1870)  and dealt with (some of) the unresolved issues of the day.  In this blog, we'll concentrate on the thirteenth and fifteenth Amendments and touch on the twenty-fourth, too.  We'll briefly mention the fourteenth, but that one needs an entry all to itself, and why that is will be clear later.

The Thirteenth Amendment says:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Pretty straightforward.  This amendment ended slavery in the United States and its territories.  Period.  It's often thought and taught that Lincoln's Emancipation Proclamation ended slavery, but it had no force of fundamental law.  It was great a bit of writing, of course, but it was really an expedient wartime act, not a fundamental change in our country's governing document.  The 13th Amendment was the focus of the recent Oscar-winning movie "Lincoln" by Steven Spielberg.  Though serious historians may argue the details of the debate over the amendment as shown in the film, I'd still highly recommend the movie to one and all, if for no other reason than to see Daniel Day-Lewis' stunning portrayal of Lincoln.  

The Fourteenth Amendment will get short shrift here, and I promise to make it up in the next entry. The reason for that is that the 14th is very dense and is probably the amendment (outside of the Bill of Rights Amendments) that has the most direct affect on out daily lives and contemporary political debates and discussions.  You may be surprised at how far-reaching it has become, on topics from abortion to same-sex marriage to civil rights and affirmative action and more.  That may be a really long blog...

So, let's skip ahead to the Fifteenth Amendment, another short and sweet one.

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Again, pretty clear and unambiguous.  Race is no basis for the denial of voting rights.  (Sadly, gender still was - it would be 50 more years before the 19th Amendment was ratified, lifting the barrier that kept women from voting.).  

The voting rights of black Americans was further reinforced a century later with the elimination of the poll tax in 1964 with the ratification of the 24th Amendment.  

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The poll tax had been adopted in many of the former states of the Confederacy in order to discourage voting by blacks and poor whites, though by the time the amendment was ratified, only five states still had a poll tax, and the amendment barred such taxes for federal elections.  In 1966, the Supreme Court ruled in Harper v Virginia Board of Elections that poll taxes of any sort were unconstitutional, saying they violated the Equal Protection Clause of the 14th Amendment (see why we have to do the 14th on its own?).

There is one fundamentally important point I want to make here.  Read the amendments above very carefully.  There is some language usage that needs proper emphasis.  It's often said that the fifteenth amendment gave blacks the right to vote and the nineteenth gave women the right to vote.  Not true.  The amendments, as written say nothing about giving anyone the right to vote.  They say that the right of (blacks or women) to vote will not be denied based on race or gender.  In other words, the right was always there, as a fundamental thing.  The amendments merely removed the obstacles in the way of exercising those inherent rights.  That's critical to understand, not just in these cases, but when trying to understand the Constitution in general.  Nothing in the document gives anyone any rights.  Rights are not the government's (or the Constitution's) to give.  The Constitution merely restrains the government from placing barriers to the exercise of those inherent rights.  Go back and read the Bill of Rights.  Not a single right was granted, but all rights mentioned are assumed to pre-exist and are merely protected by the amendments.

Now, for a treat.  Thinking about the Civil War/Reconstruction Amendments brings to mind the recent controversy over the Confederate battle flag.  I have an essay here, written by Duane J. Rodel, which I think all of you will find well-reasoned and thought-provoking.  

To establish Mr. Rodel's bona fides, he is a graduate of Ripon College, where he earned degrees in History and English, was named to the Dean's List and graduated with departmental honors in History.  He also earned a Master's Degree from the highly-regarded School of Library and Information Studies at the University of Wisconsin, where he specialized in archiving.  He has worked as a digital archivist at the Wisconsin Veterans Museum, where he embarked on a multi-year project to make all of the museum's Civil War records digital and available online for the public to view at will.  See here for a preview of some of the museum's archival material.  There is no one I know personally who is better qualified to comment on Civil War history and its context as it relates to our modern time.  Enjoy!

On the Confederate Battle Flag

In the wake of the horrific and tragic shooting in Charleston, there
has been a lot of figurative ink spilled over a photo of the shooter,
Dylann Roof. Seen posing in a photograph with a Confederate flag - to
be precise, the Confederate Battle Flag, designed by William Porcher
Miles in 1861 - the uproar has prompted a number of Southern states to
begin reconsidering its use in their iconography and its display
on public grounds, and retailers to pull it from shelves physical
and virtual.

Comparatively less noise has been made about the other photo, which
shows Roof burning a US flag clutched in his hand. This photo,
however, is the more telling one, and reveals exactly why the
Confederate flag needs to be retired to the museum and the
re-enactment once and for all.

Whatever it is supposed to mean now, the cold hard truth behind the
flag is that it was designed for an illegitimate state: a state which
came into being not as a result of an over-reaching edict from the
President or Congress, but because of the simple results of an
election, a state that was founded not even with the implicit intent
to preserve and perpetuate racist human slavery but the very explicit
purpose to do so, a state whose first significant act was opening fire
on U.S. troops at a U.S. military installation, Fort Sumter. This
state was the deadliest foe the United States of America had ever
faced and remains its deadliest, two centuries on. Only World War II
had more combat casualties, and only if you combine the total
casualties of every other war before and since the Civil War will you exceed
it. It should be inconceivable that anyone who considers him- or herself a
patriot for this country to cling to such a symbol, and the
photographs of Roof only go to show that true love for this country
and her people are fundamentally incompatible with clinging to the
legacy of the Confederate States.

Those who survived that hellish maelstrom felt its affects the rest of
their lives and also felt, as strongly as any veteran of wars of the
20th and 21st century, the desire to not see their sacrifice and the
sacrifices of their family, friends, comrades and neighbors
invalidated. Lucius Fairchild, Civil War veteran and tenth Governor of
Wisconsin, had this to say about an executive order issued by
President Grover Cleveland mandating the return of captured
Confederate battle flags:

"May God palsy the hand that wrote that order! May God palsy the brain
that conceived it, and may God palsy the tongue that dictated it!"

Aside from putting to bed the notion that venom in politics is a
modern invention, it shows just how strongly and passionately veterans
of the Civil War felt about the importance - and moral necessity - of
what they had done. Cleveland wisely rescinded the order shortly after
this outburst.

The notion that neither North nor South was the antagonist or
protagonist of the war is historical revisionism, a revisionism so old
it has itself become history. The romance and myth of the Lost Cause
of the Confederacy - the idea that noble, idyllic antebellum life was
shattered by a tragic war which was unavoidable and for which nobody
holds fault - dates back to 1866, a mere year after the war's
conclusion at Appomattox and the assassination of our President, and
from that day forward apologists have been tireless in redefining and
obscuring the war's cause and origin in our collective memory. It has
since metastasized and spread beyond the borders of the former
Confederacy and infected mainstream thought across the United States,
and cultural landmarks, such as “Birth of a Nation” and “Gone With the
Wind”, have unfortunately only helped cement its place there.

This, combined with Nixon's use of the Southern Strategy in the 1960s,
has created a bizarro world where some Republicans go out of their way
to defend a symbol that our first Republican President was murdered
for defeating, and for which thousands of American soldiers died to
remove from our shores.

Some have argued that time has divorced the flag from its legacy as a
symbol of the Confederate States of America, and that it now only
stands to champion Southern values. If that is indeed the case, then
why does its removal matter? If it has become innocuous, then getting
rid of it or replacing it should not be the trauma that many are
making of it.

There is much that is great about the South - some of the most
uniquely American music, cuisine, architecture, and art comes from the
South. I have to ask, then, why not rally to those sorts of icons as a
signifier of Southern identity instead? Why crouch forever in the
shadow of an illegitimate, failed state which existed less than a
decade and which killed hundreds of thousands of Americans and
enslaved thousands more in that failed bid to exist?

Similarly, there are great military minds and traditions that have
arisen in the South before and after the war that deserve greater
praise than her rebellious generals. Off the top of my head, General
Douglas MacArthur - the great commander who led us to victory in the
Pacific in World War II - was a son of Arkansas and a graduate of West
Texas Military Academy. I am sure there are many others besides him.
Norfolk, Virginia is the beating heart of our Navy. Aviation has its
roots in the soil and sandy beaches of North Carolina. All of this
greatness is divisible from the legacy of the Confederate States, and
if anything, surpasses it. Nathan Bedford Forrest would not be worthy
to shine MacArthur's boots - he is certainly not worth a statue.
To some, it's a problem of timing: coming after successive waves of
politicized racial unrest and a breakdown in law and order that has
polarized the nation, some Republicans feel it would be handing another victory to
the Democratic party and its agenda. I say that the controversy over
the flag is neither here nor there - it's a reckoning that is
one hundred and fifty years overdue. I do not share the beliefs that
many rallying under the #TakeDownTheFlag hashtag do about this country
- that racism is part of our DNA or that it is an inescapable original
sin, for which we must endlessly self-flagellate. But I recognize
that, even when you are coming from the wrong premise, you can
occasionally draw and fight for the right conclusion. As the cliché
goes, "Even a broken clock is right twice a day," and the hour has
finally struck for this last legacy of the Confederate States.

As a Catholic, part of my religious education and upbringing involved
not just learning about the good parts of the history of the Catholic
Church, but also recognizing the bad. I can be inspired by the great
artwork and architecture of St. Peter's Basilica without losing sight
of the overreach and corruption of the medieval church in selling
indulgences. So too, I think Southerners can - and must - learn to
recognize the mistakes in their past, even as they celebrate their
glories, and to stop mistaking one for the other. And part of this
process must involve putting aside that flag once and for all.

© Duane J. Rodel, July 6, 2015, Madison, WI