Thursday, August 5, 2010

The Fourteenth Amendment - An Appreciation

We covered the Fourteenth Amendment in class on Tuesday.

I always spend a lot of time on this amendment. For one thing, it makes a great way to sum up. A lot of the things we cover in the last third of the course come together in this amendment – slavery, liberty, sectionalism, and, perhaps most importantly, what means to be an American. It’s a great message to end with. For another, it’s the single most important amendment in the entire Constitution. The effect of the Fourteenth Amendment was to create, for the first time, a single nation-state out of the loose union of states envisioned by the Founding Fathers. Historians call the period when this amendment was ratified “Reconstruction,” to denote the work done by the North to rebuild nation after the failure of the South’s treason. But really, as one of my grad-school professors used to say, it should be called New Construction, because the nation that emerged out of it was a rather different one than the one that went into it.

The Fourteenth Amendment, like all Constitutional amendments, is not all that long. It has five sections, two of which are fairly technical things designed to address specific issues arising from the Civil War and another that simply says that Congress can pass laws to enforce the provisions of the amendment. Another section deals with the relationship between the number of voters and the amount of representation in Congress a state was entitled to, now that the slaves had been freed and would no longer be counted as 3/5 of a person.

But the key section of the Fourteenth Amendment is the first one, and it reads in its entirety:

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.

There are two key facts that arise out of this first section.

First, the first sentence is the only place in the Constitution where the criteria for citizenship are defined. It is here, emerging from the wreckage of the Civil War, that Americans finally decided that differentiating among citizens based on whether the majority liked you or not was a losing bet. There would henceforth be two fairly straightforward ways to become an American citizen – either you were born here, or you passed a test. In other words, the United States would not divide its people based on where they came from, what they looked like, what language they spoke or who their parents were.

This was in keeping with one of the larger messages of the Civil War, as articulated by Abraham Lincoln at Gettysburg, in 1863.

What did it mean to be an American?

Prior to the Civil War this was a legal question. The US was founded on the Constitution – it is our fundamental law, and without it the United States does not exist in any formal sense – and the question of what it meant to be an American was functionally equivalent to what was Constitutional.

But Lincoln, picking up on something that the Moral Reform Movements had been arguing since the 1830s, said no. The Union, he said, was not a legal entity bounded by the language of the Constitution – it was a set of ideals. Do the math. “Four score and seven years ago” from 1863 does not get you back to 1787, when the Constitution was written. It gets you back to 1776, when the Declaration of Independence was approved.

The Declaration is an odd document. It has no force of law. You cannot introduce it as evidence in a courtroom. It was simply the way the colonies had announced to the world that they no longer considered themselves British colonies. And for the next eighty years or so, that’s how most Americans saw it. There’s a reason the original handwritten copy is in such bad shape – it wasn’t seen as particularly defining back then. Important, yes, in the way any posted bill for an important event was, but not defining.

But if the Union is to be a set of ideals, the question is where do those ideals come from? And what Lincoln is saying – what reformers had been saying – was that those ideals came from the Declaration. After all, nobody remembers that the bulk of that document is a catalogue of the abuses of the British Crown as perceived by the colonists. What people remember is that one ringing sentence that Jefferson wrote: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

To hold those truths was to be an American.

And to hold those truths was a task, a proposition to assent to, not an inherent characteristic. To be an American was to subscribe to a creed – a secular creed, found in the Declaration. And this, it strikes me, is enshrined in the citizenship requirements of the Fourteenth Amendment. With the Fourteenth Amendment, the US declared that its citizens would be the people born here, who had the self-evident rights described in the Declaration simply by virtue of being born on American soil – these truths were fundamentally part of this nation, and imbibed with the air. And for those not born here, the deal was that if you held the same ideals that the US embodied you could become just as American as those who were born here. It’s an aspirational citizenship, not a biological one.

The second thing that arises out of the first section of the Fourteenth Amendment is that the citizenship it defines is, for the first time in American history, national. The relevant phrase is “citizens of the United States and of the State wherein they reside,” as confirmed and explained by the rest of the amendment.

Prior to this you were considered a citizen of your state, and only by implication – since the states were part of this nebulous thing called the United States – were you also a citizen of the US. The Fourteenth Amendment reverses the order of that. As an American, you are first and foremost a citizen of the United States and only secondarily a citizen of the specific state in which you live.

This has a number of implications.

For one thing, it is part of a larger movement toward making the United States more of a single nation than a collection of states. Prior to the Civil War the proper grammatical construction of a verb following the noun “United States” was plural – “The United States ARE.” Only with the Civil War – after four years of armed conflict over the preservation (or, if you were a Southerner, the destruction) of the Union, after years of hearing about the primacy of the Union, and after several million Americans actually left their states and marched across so much of that Union – did the United States become a singular noun, “The United States IS.” A single citizenship in that Union, one that trumped the multiple citizenships of multiple states, made sense.

More importantly, though, the fact that citizens of the various states were first and foremost citizens of the federal government meant that for the first time when the federal government gave you a right, the states couldn’t take it away. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …”

Or in other words, for the first time the Bill of Rights now applied to the states.

Before the Fourteenth Amendment the states could – and into the 1830s sometimes did – establish religions in their territory. Before the Fourteenth Amendment the states could impose cruel and unusual punishment. Before the Fourteenth Amendment the states could search your home without a warrant. Only the federal government was prohibited from doing those things, because the Framers of the Constitution were primarily concerned with defining the powers of the new federal government when they wrote the Constitution and Bill of Rights.

But with the experience of eighty years, the men who wrote and ratified the Fourteenth Amendment could see that the federal government had done – and in point of fact continues to do, with certain notable exceptions – a much better job of protecting individual liberties than the states, as a whole.

So the Fourteenth Amendment is critical to who we are as Americans in ways that might not always be apparent on first glance.

This is why it is both pleasing and troubling to see the Fourteenth Amendment so much in the news this week.

On the plus side, the recent decision in California overturning their referendum banning gay marriage was based squarely on the Fourteenth Amendment.

Unlike most of the people currently up in arms over this decision, I took the time to read through the actual decision. It was an interesting thing to read, from an unlikely source.

US District Judge Vaughn Walker was first nominated by Ronald Reagan and then renominated by the first George Bush when liberals, upset by, among other things, his role in a case denying the Gay Olympics the right to use the “Olympics” name, blocked Reagan’s nomination. This will make the inevitable backlash against so-called liberal judges imposing their personal morality on poor unsuspecting conservatives even more grotesquely amusing than usual.

Though perhaps this source is not that unlikely, really. There was a time when conservatives actually respected the Constitution and the laws and supported such notions of equality before the law and a level playing field. Perhaps Judge Walker is simply a holdover from before the time when social conservative theocrats took over that wing of American politics and began to push their view of the Constitution as an annoyance to be worked around.

This country is not a democracy. The Constitution was not set up to enforce the idea that the majority can do whatever it wants specifically because it is a majority. As Judge Walker points out, there are limits.

“That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.’ Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest.”

In other words, since the Constitution exists in part to protect us from the tyranny of the majority, the mere fact that a majority of citizens feel justified in denying fundamental rights to a minority of other citizens does not mean that this majority is actually empowered to do so. Citizens - all citizens, born or naturalized - have fundamental rights as Americans.  There has to be something more to a law than the will of the majority, some substantive interest that can pass Constitutional muster.

The relevant question is not what do most voters prefer. The relevant question is what is allowable under the Constitution. And the Fourteenth Amendment specifically prohibits the denial of equal protection under the laws by any state, even if the majority of its voters think they are superior to a minority and wish to flaunt that, unless the state can show a compelling interest in this denial. And, as exhaustively catalogued in the decision (really - it just goes on and on and on) no such compelling interest was shown.

For this reason, Judge Walker notes that the ban on gay marriage violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment, unduly restricting the rights of citizens of the United States, something the voters of California are not entitled to do regardless of the poll count.

While this is a victory for American ideals over American practice, it will no doubt feed into the other, more troubling reason that the Fourteenth Amendment is in the news of late, which is the desire of the lunatic fringe of the modern conservative movement – the fringe that seems to be running it these days, unfortunately – to repeal the amendment.

This is usually phrased in terms of immigration.

It seems there are just too many brown-skinned Spanish-speaking people in America for conservatives to stomach these days, and a lot of them seem to have been born here. And having been born here, under the Fourteenth Amendment they are citizens and cannot be deported to the homelands of their parents, regardless of their parents’ immigration status. So now there is a push among the Teabaggers and their ilk to repeal the part about citizenship and go back to the Dred Scott standard by which a group can be denied citizenship by a majority of voters simply because they’re unpopular.

I’m not even going to go into the sheer viciousness and petty-mindedness of this other than to point out that when even Alan Keyes and Lou Dobbs think you’ve jumped the shark, it’s time to take swimming lessons.

What bothers me about it, though, are the broader implications for what it means to be an American that might accompany the repeal of the Fourteenth Amendment.

Are we ready for a nation where the states are no longer bound by the Bill of Rights? Maybe the people pushing for this would be happy to have their states establish a religion, assuming that it’s their own religion (this always seems to be the unspoken assumption behind those efforts), but I don’t think they’d be happy in a nation where their precious Second Amendment rights are no longer guaranteed by the states. It’s a package deal, though.

Are we ready for a nation where random groups of citizens can be denied fundamental rights simply because a majority says so? Majorities are notoriously fickle things, you know, and demographics change all the time. It’s not an accident that most Teabaggers are older, white men. They long for a time when people like them ruled unopposed by pesky women and nonwhites. Speaking as someone who will, with any luck, become an old white man someday I can see the selfish attraction in this, but as an American I am utterly appalled. And in the not-too-distant future, the majority of Americans may well not look like me. Protecting the rights of everyone is the best way to protect your own rights.

The Fourteenth Amendment is one of the towering achievements of American politics. Long may it stand.


Eric said...

Great post, David. Thank you.

Katherine McKay said...

Wow! This needs to be printed in a newspaper of general circulation, maybe on its Op-Ed pages. I'd like to see you submit it to a paper, even one that is not local to you (Phila. Inquirer?) You should see the bozo comments across the some of the conservative 'Net sites on Judge Walker's opinion. There badly needs to be a counter argument like yours out there. Beautiful post!

beatricemdfr said...

Thanks for the Con Law refresher. France has its own version of the fourteenth amendment which some politicians are ignoring lately. Mabye there is something in the air. The government is proposing that people who are foreign-born should lose their French nationality if they harm a police officer. I'm all for protecting the police, but not for a two tier system of citizens, especially in this neck of the woods.