The Use and Abuse of the Fourteenth Amendment
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.
Only the Second Amendment (pertaining to the right to keep and bear arms) rivals the Fourteenth as a source of political conflict, and the latter is the basis for a far wider range of constitutional disputes. We are now engaged in two such disputes: should children of illegal immigrants have citizenship? and, is the prohibition of gay marriage unconstitutional?
The history of the courts’ interpretation of the amendment’s first section (see above) is especially tortured, in spite of the fact that its manifest intent when adopted in 1868 (after the Civil War) was to enforce equal citizenship rights for freed slaves. The Republican Party abandoned Reconstruction in 1876, as part of a deal with the (mostly Southern) Democrats, a deal that gave the Republicans the presidency. Subsequently, the North (mostly Republican) showed little solicitude for the well-being of the former slaves. The courts acquiesced in a long series of tortured reinterpretations of the amendment that were designed by southern whites to limit the effectiveness of black citizenship and restore the subordination of blacks to whites in the South. This culminated in the affirmation by the Supreme Court of legal segregation and the effective disfranchisement of Southern blacks. By the first decade of the twentieth century, the Fourteenth Amendment had been essentially nullified in terms of its original intent.
Parallel to this process of evisceration of original intent, however, came a long and complex series of creative appropriations of the amendment to serve purposes quite distinct from those of the framers. The most spectacular hijacking of the amendment was the doctrine that corporations are persons under the law and therefore may not have their “privileges and immunities” violated by any state. The courts used this doctrine to block state attempts to regulate corporations, thus facilitating the monopolistic abuses of the Gilded Age. Ultimately the Supreme Court reinterpreted this doctrine to allow significant regulation, but the doctrine still lives on in cases such as the Exxon Valdez oil spill.
More consistent with the intent of the framers is a wide range of cases that have used the Amendment to protect the rights of various categories of citizens against violation by the states. This was the foundation of the series of decisions that culminated in Brown v. Board of Education (1954), and related decisions that dismantled the legal foundations of segregation (including laws against interracial marriage). It was also the basis for the extension to the states of constitutional protections against self-incrimination, and guaranteeing the right to counsel.
It is in this tradition that the current controversy over gay marriage will be decided. United States District Judge Vaughn Walker, presiding in the challenge to California’s Proposition 8 which made gay marriage unconstitutional in California, declared, ”Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due-process and equal-protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.”
The current conservative majority of the Supreme Court may not want to go so far as to legalize gay marriage, but they will have to come to terms with the argument that prohibiting gay marriage is a violation of the due-process and equal-protection clauses of the Fourteenth Amendment. They might finesse it by holding that civil unions are a right that all states must respect, while marriage is a matter of religious freedom.
Many conservatives are now pushing to amend the Constitution to change the provision of the Fourteenth Amendment that allocates citizenship to all persons born or naturalized in the United States. Unlike many examples of creative interpretation, this proposal would formally amend the amendment. Liberals learned in the 1970s, with the proposed Equal Rights Amendment, how hard it is to amend the Constitution; here is our chance to teach the same lesson to conservatives.