Is 2010 the Year of the 14th Amendment?

Written by Byron Williams

Thursday, 12 August 2010

Is 2010 shaping up to be the year of the 14th Amendment?

It could be argued that the 14th Amendment, along the free expression Amendments within the Bill of Rights, serves as the aorta through which our constitutional values flow.

Adopted July 9, 1868, the 14th Amendment’s three most widely known clauses are citizenship, due process, and equal protection.

Section one reads:
“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.”

Earlier this year we were privy to the 14th Amendment’s importance ignored as right-wing candidates ran on an interposition and nullification platform.

Basing their position on the 10th Amendment,  interposition refers to the right of the states to protect their interests from federal violation deemed by those states to be dangerous or unconstitutional. Nullification is the theory that states can invalidate federal law it considers unconstitutional.

Besides the fact this argument was settled at Appomattox, it is the 14th Amendment that renders the interposition and nullification argument archaic.

When the 10th Amendment was originally proposed, the Bill of Rights did not apply to the states; it applied only to federal law. States had their own constitutions and their own bills of rights.

Some states also had slavery, which was protected under the 10th Amendment. After the Civil War, the 14th Amendment extended the Bill of Rights and made it applicable to both state and federal law, diminishing much of the 10th Amendment's power.

The 14th Amendment was recently affirmed as U.S. District Court Judge Vaughn Walker ruled that California’s Proposition 8, which banned gay marriage, was unconstitutional.

Citing the due process and equal protection clauses, Judge Walker wrote: “Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Unacquainted with the application of De Toqueville’s “tyranny of the majority” in our democracy, social conservatives reduced upholding equal protection and due process to overruling the “will of the people.”

The citizenship aspect of the14th Amendment has recently come under scrutiny for political purposes by several Republican candidates and as well as members of Congress.

Republican Senate candidate Rand Paul was the first I heard publicly oppose citizenship for children born to illegal immigrants.

“Did he just advocate revising the 14th Amendment?” I thought to myself. I dismissed it as poppycock from someone not ready for primetime.

But recently members of the Republican Senate have echoed similar charges, in particular South Carolina Senator Lindsey Graham and Arizona Senator John McCain, who have been two of the more rational voices on immigration reform on the GOP side.

The citizenship clause essentially overruled Dred Scott v. Sanford (1857), which held blacks could not be citizens.

So far, we’ve witness this year segments of the Republican Party reach for a pre-Civil War Constitution, offer that the majority will trumps equal protection and due process, and propose that birthright no longer be a determining factor in order to receive the benefits provided by the 14th Amendment.

How can anyone take Republican cries of the adherence to the Constitution seriously if it includes revising the 14th Amendment? Moreover, how can individuals claim to uphold American values void of any reverence for the 14th Amendment?

Without the 14th Amendment, what is the effectiveness of the suffrage and civil rights movements? Clearly there is no Brown v. Board of Education decision.

The 14th Amendment opened the door to what the American experiment could be in ways unimagined by the Founders. Though originally intended to address the status of former slaves, the 14th Amendment made America better for everyone.

There is an irony to this unfortunate yarn in that the Radical Republicans, comprised of individuals such as Sen. Charles Sumner and Rep. Thaddeus Stevens, were key to the ratification of the 14th Amendment. Today, it’s another group of “radical” Republicans, who have opted for a different path, vacuous of substantive ideas going forward they propose instead to turn back the clock on American democracy.