Constitutional Myth #8: The 14th Amendment Doesn't Exist

Why do some on the right look at this basic guarantee of democracy and think nothing's there?

The American imagination is captivated by Philadelphia 1787, where courtly demigods in powdered wigs randomly substituted f for s, as they wrote a flawless charter that timelessly guides our steps today.

It's a nice story, but about as relevant to today's Constitution as the tale of Rip Van Winkle.

The Constitution we live under has had a full 27 amendments added since that summer in Philadelphia. In combination, they have changed our system of government into something the Philadelphia Framers would not recognize.

That's good: that's what Article V is for.

Of those 27th Amendments, none is more important than the Fourteenth. It changed virtually everything about the republic designed at Philadelphia. Today, almost every provision of the Bill of Rights restricts government at all levels. That's because the Fourteenth Amendment applies them to states. In addition, the Fourteenth Amendment bars the states from discriminating unfairly between races or sexes, or between natives and newcomers, or even between citizens and immigrants. Anyone born in this country is a citizen -- because of the Fourteenth Amendment. State governments must conduct elections on the rule of "one person, one vote" -- because of the Fourteenth Amendment. Any citizen who wants to write a letter to the editor criticizing the governor is free to do so -- because of the Fourteenth Amendment. Any religious group that wants to practice its faith despite minority disapproval may do so -- because of the Fourteenth Amendment. The Supreme Court recently found that the right to bear arms applies to the state governments--because of the Fourteenth Amendment.

America today is what we call a democracy -- because of the Fourteenth Amendment.

The Amendment has been called "the second Constitution," because of the number and importance of the changes it made. But to hear many of 21st Century's far-right "constitutionalists" tell the American story, the Fourteenth Amendment doesn't exist. Or, at least, not as something that affects the way we live today.

These people are what I call "Fourteenth Amendment deniers." Their radical right-wing agenda is much more attainable if the values of human equality, and basic civil and political rights, are read out of the document.  So, like Sgt. Schultz in Hogan's Heroes, they look at the text and see "nothing -- nothing!"

The most radical of them simply proclaim that the Fourteenth Amendment doesn't count; it wasn't validly adopted. Southern Senators and Representatives weren't seated in the Congress that proposed it at the end of the Civil War, they argue, so that body was illegitimate.  In 1957, with the prospect of school desegregation staring it in its all-white face, the Georgia State Legislature went so far as to pass a resolution declaring that "the so-called 14th and 15th Amendments to the Constitution of the United States are null and void and of no effect."

This old white-supremacist myth lives on, but only in the remote hills and hollers where militiasmen mingle with men in sheets. The mainstream of the far right (if that's the term) instead tersely admits the Amendment is there, but insists it dealt only with problems long in the past. It was only designed to deal with the freed slaves, they say; since there aren't any freed slaves today, we don't need to worry about it. Here's Glenn Beck running that scam: the Amendment was designed "to protect newly freed slaves and their children and guarantee their rights as citizens. Last I checked, I don't think we're having that problem anymore."

Arizona Sen. Russell Pearce, author of a measure designed to strip citizenship from American-born children who had the bad taste to grow in the womb of an illegal alien, dismissed the language of the citizenship clause because he "knows" it was written only to apply to blacks. "When the Fourteenth Amendment was written, it was written to give credit to the African Americans, recognize them," he told CNN. "The Fourteenth Amendment was never intended to be used the way it's used."

Pearce and Beck have drunk deep from the phony American history that right-wingers have begun to substitute for the real thing. David Barton, the faux-history guru who has become the darling of Republican presidential candidates, breezily explains, "'the intent of Congress' was clear: to make recently freed slaves citizens of the state in which they resided. Very simply--and very specifically--the Fourteenth Amendment was a badly needed racial civil rights amendment."

This task -- guaranteeing citizenship to "all persons born or naturalized" in the United States -- takes 29 words of a 400-word amendment.  True, Barton admits, "the wording of the Fourteenth Amendment, divorced from its purpose, seems to condone" a broader interpretation -- even requiring states to observe the Bill of Rights, "not just on racial civil rights issues."  But we know that can't be right! The Amendment can't mean what it says -- that all persons are entitled to due process and equal protection, that all American children are citizens by birth, that states are bound not to abridge the "privileges and immunities" of American citizenship. That's "a totally revised and foreign interpretation," Barton says.

It just can't mean that.  He doesn't want it to mean that. The voices in his head tell him it doesn't mean that. (Barton is not the only bad historian on the right. Justice Antonin Scalia recently dismissed all the Court's decision applying equal protection to women. When the Amendment was proposed, he said not long ago with his usual confident inaccuracy, "Nobody ever thought that that's what it meant." Scalia, as Adam Cohen points out, had no problem with a new theory that allowed it to "protect" George W. Bush against losing the 2000 election.)

When you hear someone explain that the "purpose" of a constitutional provision means that we can ignore the text, hold onto your wallet.  It's a bit like saying that the First Amendment's "purpose" was to protect people who were talking or printing words in sheet-fed presses using hand-set type, so we needn't apply it to broadcast TV or the Internet; or that the Sixth Amendment's right to jury trial doesn't apply to white-collar crimes, because those laws hadn't been passed in 1866.

The Fourteenth Amendment is a broad charter of civil and political rights, protecting much more than freedom from race discrimination.  Here's a voice Barton hasn't heard in his head -- the voice of Sen. Jacob Howard (R-MI), the Senate sponsor of the Amendment, explaining that Section One incorporates

The personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. . . . 

The last two clauses of the first section of the amendment disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the state.  This abolishes all class legislation and does away with the injustice of subjecting one caste of persons to a code not applicable to another.

This is quite different -- and far more radical -- than Barton or Scalia's "original intent." But Howard was just an actual Framer -- what would he know?

The truth is that the Fourteenth Amendment changed the Constitution, and the country, in ways too numerous to count.  That's not a mistake; that's not "judicial activism"; that's the Article V process at work. And all of us today are better off because it protects us against tin-pot local dictators like Russell Pearce.

So all of us have a stake in the Fourteenth Amendment. Attempts to mutilate it are aimed at the heart of contemporary American values.  When a "constitutionalist" begins minimizing the Amendment, it's a sign of ignorance; when a politician or a judge does it, it's a sign of something worse.

Image Credit: Reuters/Jonathan Ernst

Garrett Epps's Full Constitutional Myth Series: