The 14th Amendment Wasn’t Intended to Decide Local Sports Teams

The Supreme Court recently spent three hours debating whether states may limit girls’ sports teams to biological females. The justices pressed lawyers on endocrinology, competitive fairness and the motivations of state legislators. Reporters parsed every question for clues about how the court might rule.

Yet, amid the legal jargon and scientific sparring, one obvious question went unasked, one that goes to the heart of American self-government: Why is this decision being made in Washington at all?

At issue is not a national security threat or an interstate dispute. It is who gets to run in a sixth-grade girls’ race at a local public school. And yet unelected, life-tenured federal judges are being asked to supply the final answer, overriding state legislatures and local school boards in the process.

Americans have grown accustomed to this arrangement. The Framers of the Constitution would not have been.

While modern Americans simply accept the federal courts’ review of such matters, the Constitution’s Framers would be aghast. James Madison and other proponents of the Constitution of 1787 designed a system in which the scope of federal power was limited. In Federalist No. 45, Madison explained that federal authority would operate primarily on “external objects” such as “war, peace, negotiation and foreign commerce.” The powers of the states, Madison continued, “will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

So how did the federal authority go from “external matters” to who competes in the sixth-grade girls’ 100-yard dash at Podunk Elementary School?

Judges and scholars point to the 14th Amendment, enacted after the Civil War. The amendment, they tell us, changed everything. The United States went from a federal union to a national government with broad powers to supervise state activities.

In truth, the drafters of the amendment had one goal in mind: prohibiting the former Confederate States from treating the newly freed slaves as second-class citizens. Among other things, the amendment established that Black Americans were American citizens entitled to the full benefits of the laws and to due process in court proceedings.

Beyond the rights of former slaves, the 14th Amendment effected no revolution in the original federal system. For example, Sen. Lyman Trumbull of Illinois, a champion of civil rights for former slaves, averred that the amendment would have “no operation in Massachusetts, New York, Illinois, or most of the States in the Union” because they levied no lawfare against freedmen.

Early Supreme Court decisions agreed with Trumbull’s assessment. In the Slaughterhouse Cases (1872), the court recognized that a belief in a stronger general government animated the push for the 14th Amendment, but nonetheless denied that the changes evinced “any purpose to destroy the main features of the general system.” 

Outside the context of racial discrimination, Madison’s system of few and defined federal powers still existed.

Such judicial restraint was temporary.  The court quickly succumbed to the temptation to aggrandize its own power. The initial impetus came from conservative judges who invoked the amendment’s general language to strike down state laws that protected workers from the adverse effects of the Industrial Revolution.

These advocates of laissez-faire capitalism were swept from the bench during Franklin Roosevelt’s New Deal. Unfortunately, their jurisprudence of strictly construing state laws that do not align with their policy preferences lingered.  The court’s liberal justices simply refurbished the conservatives’ tools and used the 14th Amendment’s promises of equal protection and due process to strike down state laws establishing social policies with which progressives disagreed.

Whereas the old conservative justices made war on minimum wage and maximum hour legislation, the liberal justices assailed state laws restricting possession of contraceptives or access to abortions.

Thus, the 14th Amendment went from establishing the fundamental rights of newly freed slaves, to being an instrument of big corporations to finally being a tool of progressive activists.

How can Americans remedy this situation and return the 14th Amendment to its original and honorable moorings? A good start is by asking relevant, commonsense questions such as why unaccountable federal judges, rather than a local school board, should decide who is allowed to run on an elementary school’s track team.

Asking this fundamental question will likely do more good than judicial inquiries into the effect of puberty blockers, the state of women’s athletics, or the intentions of legislators trying to prevent Jimmy from torching Janie in girls’ 100-yard dash.