Time to Topple the Fourteenth Amendment

The Fourteenth Amendment is an obstacle to reasonable constitutional government in the United States. This Amendment inhibits federalism, which should work much like a pressure release valve, to permit policy experimentation in American states. Instead, we are pushed into one-size-fits-all legislation resulting from a nationalized, scorched-earth politics. In addition, unelected and unaccountable judges direct this broken system through concepts such as due process and equal protection. Power is consolidated at the center, while the peripheries are denied the authority to address their local concerns.

Recent Supreme Court arguments in United States v. Skrmetti highlight the abuse of the Amendment. The Tennessee law at issue prevents the woke medical community from performing irreversible sex-transition interventions on minors who likely cannot appreciate the lifelong consequences and risks of the treatments. The statute bans healthcare providers from utilizing puberty blockers, cross-sex hormones, and sex-transition surgeries on children.

This state law is being challenged as violating the Fourteenth Amendment’s Equal Protection Clause because it purportedly discriminates based on sex. Sex-based classifications are subject to heightened judicial scrutiny. It is extremely difficult for any legislation to survive under such judicial micromanagement.

The United States government and transgender activists argued that the statute is no mere police power measure regulating medical care (and thus subject to a rational basis review). Instead, the statute is sex-based because it bans treatment for a child who seeks to live or identify in a way that is inconsistent with his or her biological sex. The liberal wing of the Court appeared to buy the arguments the activists were peddling.

Justice Ketanji Brown Jackson, for instance, went so far as to compare the Tennessee law to anti-miscegenation laws. Rather than providing a health law, the purpose of the statute, Brown Jackson contended, was to harm transgender kids. She saw no difference between laws intended to preserve racial separation and efforts to protect children from dangerous medical procedures.

Court watchers predict that the conservative majority is not inclined to interfere with Tennessee’s statute. However, the fact that the Fourteenth Amendment challenge reached the Supreme Court, was slated for an oral presentation, and received support from multiple justices is food for thought. Only in a legal world that has traveled through the looking glass can such arguments be taken seriously.

The Fourteenth Amendment accounts for the lion’s share of the Supreme Court’s constitutional interpretation. Scrutiny of town nativity scenes, state use of the death penalty, and state-court criminal procedure have all been tied to the Fourteenth Amendment. It would be no exaggeration to aver that the Fourteenth Amendment has become the most important part of the American Constitution.

The time has come for Americans to stop pretending that the Fourteenth Amendment is a beatific and integral part of a mythical “Second Founding.” Instead, we should come to grips with the fact that the Amendment was never properly ratified and that it undermines republican gove rnment. We have gone beyond the point where it is possible to limit the application of the Fourteenth Amendment to its original intent, which was to protect the citizenship of former slaves. Interpretive tinkering is about as likely to cure our body politic as aspirin is to stop the spread of cancer.

The origins of the Fourteenth Amendment cannot be understood apart from the Civil Rights Act of 1866 that Congress enacted over President Andrew Johnson’s veto. The Act, inter alia, defined United States citizenship and required that blacks and whites be treated equally under the law. It ensured blacks could make contracts, file suit in court, and engage in real estate purchases. The Act sought to ameliorate the situation of freedmen in the South who faced state Black Codes. Some of the stricter codes prevented blacks from owning property, required blacks to carry a pass or a license when traveling, and declared any unemployed black man a vagabond. President Andrew Johnson raised significant constitutional questions concerning Congress’s power to interfere with matters traditionally left to the state governments. Thus, the Joint Committee on Reconstruction created the Fourteenth Amendment to constitutionalize the Civil Rights Act.

The Amendment addressed, in the words of legal historian William E. Nelson, the Northern demand that postwar governments in the South

be restrained in the future from discriminating against blacks and Northerners, and that this restraint be imposed without altering radically the structure of the federal system or increasing markedly the powers of the federal government.

To quote Fourteent h Amendment scholar Raoul Berger, we must remember that “the purpose of the framers was to protect blacks from discrimination with respect to specified ‘fundamental rights,’ enumerated in the Civil Rights Act and epitomized in the §1 ‘privileges or immunities’ clause.” The Civil Rights Act, in pertinent part, provided that the following were required for the freedmen to enjoy meaningful liberty:

[All citizens without regard to race or color] shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.

Had the Supreme Court confined Fourteenth Amendment jurisprudence to the explicit purpose of the Civil Rights Act, it would not be regulating prayer in schoolhouses or running to remove the Ten Commandments from courthouse walls.

Much of the problem revolves around the doctrine of incorporation through which the Supreme Court has applied most provisions of the Bill of Rights to the states. At base, the Court asks whether a protection found in the Bill of Rights is “fundamental to our scheme of ordered liberty” or “deeply rooted in this nation’s history and tradition.” If the answer is yes, the provision applies to state action. The Court uses this same test to incorporate rights not enumerated in the Bill of Rights. Abortion (prior to Dobbs), homosexual sodomy, and homosexual marriage are examples of unenumerated rights that have been applied to the states.

The first time the Supreme Court applied a provision of the Bill of Rights to the states was in 1925. In Gitlow v. New York, the Court stated:

For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Thus, the Fourteenth Amendment’s Due Process Clause was the engine for incorporation. For most of Anglo-American legal history, “due process” was synonymous with legal processes (e.g., grand jury indictment, arraignment in open court, and a jury trial) that the government had to follow before depriving a person of life, liberty, or property. In the decades after the Civil War, the Supreme Court transformed due process into a vehicle to judge the substance of state legislation. The Due Process Clause served as a master key to give the Court access to a wide range of state policy matters.

What about a concerted effort by conservative justices and lawyers to return due process to procedure? Unhelpful. Many on the political right, including Justice Clarence Thomas, agree with much of the Court’s Fourteenth Amendment jurisprudence, but argue that the proper instrument should be the Fourteenth Amendment’s Privileges or Immunities Clause, which reads, “No state shall ma ke or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” For them, “privileges or immunities” is shorthand for judicially defined fundamental rights. And they would not limit the scope of fundamental rights to those enumerated in the Civil Rights Act. A free-for-all, albeit perhaps a bit less intrusive than demanded by the Court’s liberals, is still the result.

Evidence for Thomas’ position is weak and relies primarily on dicta from Justice Bushrod Washington in Corfield v. Coryell (1823), which associated privileges and immunities with natural, fundamental rights, as well as some stray remarks from Radical Republicans about the application of the Bill of Rights to the states.

To the extent the Privileges or Immunities Clause enforced the Bill of Rights against the states, this would have caused a major change in state practice—especially in the criminal law. States would be required to augment the use of grand juries, to grant jury trials in all civil cases where the amount in controversy exceeded $20, and so forth. But opponents of the Fourteenth Amendment never made these obvious arguments against its adoption. Why not? Because no one understood a few offhand comments about the Bill of Rights as embodying the purpose of the Privileges or Immunities Clause. Moreover, the Privileges or Immunities Clause caused no great state constitutional revival—even in solidly Republican states—to conform state constitutional practice to the federal Bill of Rights. Surely, if the state legislatures that ratified the Fourteenth Amendment had understood it to incorporate the first eight amendments some of the states would have put that into law. None did.

Also, if the Privileges or Immunities Clause was intended to incorporate the Bill of Rights, which includes the Fifth Amendment’s due process provision, why does the Fourteenth Amendment have its own Due Process Clause? Is this a drafting error, a double security for due process, or clear evidence that Congress did not believe the Bill of Rights was incorporated? The latter explanation makes the most sense.

Further compelling evidence against the incorporation doctrine is found in Twitchell v Pennsylvania (1868), in which the defendant contended that Pennsylvania denied him his rights under the Fifth and Sixth Amendments by failing to state with proper specificity the manner in which the defendant was alleged to have harmed the victim. The Supreme Court denied relief on the grounds that the Bill of Rights did not apply to the states. Surely, the justices of the Court, sitting in Washington and aware of the great debates that had taken place in Congress, would have understood that the Privileges or Immunities Clause had worked a constitutional revolution in applying the Bill of Rights to the states. The holding of Twitchell and the fact that the Fourteenth Amendment was not even mentioned in the decision speaks volumes about incorporation.

Thomas and other conservatives are so blinded by Lincoln’s conviction that the Declaration of Independence is the apple of gold and the Constitution a frame of silver that they believe natural/fundamental law is imported into the Constitution through the Declaration. In Straussian fashion, they argue to presentists that the revolutionary generation and Framers planted the seeds of equality and natural justice that just needed watering by Lincoln so they could sprout into modern suppositions that we recognize today. The Fourteenth Amendment, for them, is the door through which the Founders’ true principles emerge as mediated by the Supreme Court. Consequent ly, the Straussians do not need to deal with the Framers as men shaped by their times and surroundings.

The Fourteenth Amendment’s Equal Protection Clause is similarly a mess. There is no hint in the Court’s jurisprudence of the original intent: to require states to apply their laws equally to blacks and whites in the subject matter of the Civil Rights Act. Today, the Court employs three tiers of review depending on whether the state law relates to economics or matters such as national origin. Almost every statute creates classifications: persons 21 years old and above can buy alcohol, while persons under 21 cannot; a person without felony conviction can bear arms, while a person with such a conviction cannot. In these two examples, both statutes would be subject to equal protection review even though they have nothing to do with enforcing contracts, access to the courts, or the holding of property. It is through the Equal Protection Clause (with some due process sprinkled in) that the Court concluded that the traditional definition of marriage was unconstitutional and thus states had to issue marriage licenses to same-sex couples. Not exactly what the framers had in mind when trying to ameliorate the lot of black freedmen.

The facts of the Amendment’s ratification are messier than its interpretation. We must remember that the North fought to preserve an indestructible union of indestructible states. Secession was a nullity under the Northern constitutional theory. Of course, Radical Republicans such as Charles Sumner contended that by seceding the Southern states had committed suicide and thus did not exist. They were conquered provinces and should be treated as such.

President Lincoln and his successor President Johnson (and most of the moderate North) had different ideas. Because the states had never been outside the union, they believed that creating “loyal” governments in the Southern states was the key to restoring those states. By the end of 1865, all Southern states had adopted new constitutions and formed new civil governments.

In February 1865, President Lincoln approved the Joint Resolution of Congress submitting the Thirteenth Amendment, which abolished slavery, to the state legislatures. As required by Article V, three-fourths of the states ratified it by Dec. 6, 1865. Secretary of State William Seward counted the votes of the Southern states for purposes of ratification. He declared that 27 of the 36 states had ratified the Amendment, and thus, it was part of the Constitution. Eight of the 27 were Southern states. Hence, it appeared that the South was politically restored.

Congress had other ideas. When Southerners elected to the national legislature began to arrive in December 1865, Republicans refused to seat them and denied that legal governments existed in the states of the old Confederacy. The Fourteenth Amendment was thus framed without Southern input or votes. American historian Forrest McDonald, the Ingersoll Prize winner in 1990, argued that while this procedure was irregular, based on Congress’ authority to judge the qualifications of its own members and a quorum requirement of a simple majority, it nonetheless passed constitutional muster. This is a charitable conclusion from this legendary historian. The only constitutional qualifications to judge are age, citizenship, and habitation. The wholesale rejection of Southerners was unrelated to individual constitutional qualifications.

Another troubling event was the expulsion of Senator John P. Stockton of New Jersey, who was an opponent of the Fourteenth Amendment. Stockton’s opposition kept the Fourteenth Amendm ent from passing the rump Senate by a two-thirds majority as required by the Constitution. Although Stockton had already been seated and the Senate faced the hurdle that a two-thirds vote is needed to expel a properly seated member, Senate leadership ignored the constitutional requirements and held a vote to unseat Stockton, which passed by a simple majority. This would have been allowed when Stockton first presented his credentials, but it became an act beyond the Senate’s legal authority after the decision had been made to accept him as a member.

In June 1866, Congress sent the Fourteenth Amendment to the states for ratification. It again rejected the state suicide or conquered province theory by choosing to send the Amendment to both Northern and Southern states. The admission of Nebraska to the union raised the number of states to 37; therefore, 28 states constituted the three-fourths needed for ratification.

Unlike the Thirteenth Amendment, the Fourteenth Amendment did not receive a warm embrace. The Southern states made loud protests. The loyal states of Kentucky, Delaware, and Maryland also rejected the Amendment. Ohio and New Jersey initially ratified but later rescinded their acceptance of the Amendment before 26 other states ratified.

In the face of opposition to the Amendment, Congress passed the first Reconstruction Act over President Johnson’s veto. Despite having sent the Thirteenth and Fourteenth Amendments to the Southern states, Congress declared that no legal government existed there and divided the South into military districts. Martial law was declared even though the war was already over. Congress also disenfranchised millions of white Southern voters. No Southern state would be allowed seats in Congress, the Radicals decreed, absent ratification of the Fourteenth Amendment. As Attorney Douglas H. Bryant has asked, “Yet what good is ratification by a government that is not lega lly recognized and entitled to representation in Congress? And if ratification by a congressionally unrecognized state government is allowed, why can’t an unrecognized state government reject an amendment?”

With pressure applied, the Southern states began to fall in line and ratify the Fourteenth Amendment. This was done under duress, with the Union army providing a show of force. Such coercion, according to common law, voids a contract. Even if the military’s action is dismissed as a mere threat and not the equivalent of physical compulsion, the common law would consider the contract voidable. Either way, Southern ratification of the Fourteenth Amendment was not freely and voluntarily obtained.

Moreover, even if we assume that New Jersey’s and Ohio’s recisions prior to declared ratification were invalid and that West Virginia’s secession from Virginia was proper during the Civil War and thus it was rightly considered a state, only 23 states ratified the Amendment without having guns put to their heads. This is well short of the 28 required.

Secretary of State William Seward recognized this in his proclamation of ratification. He acknowledged the recisions, expressed doubts about the legitimacy of the governments of some Southern states, and averred that if all irregularities were overlooked, then the Amendment had been adopted. A miffed Congress issued a resolution declaring that the Amendment had been ratified and that Seward should issue a proclamation without reservation. Congress only listed 27 states as having ratified the Amendment, which was one short of the constitutional requirement.

In summation, the submission of the Fourteenth Amendment to the states was constitutionally suspect because of the Stockton affair in the Senate. Ratification was more suspect considering the recisions and duress applied. Forrest McDonald, in a 1991 legal hi story article, sized up the matter up as follows: “Clearly, then, the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed.”

What does that mean for today? First, it means we should stop referring to the proposal and ratification of the Fourteenth Amendment as a “Second Founding” wherein true principles of liberty and equality spread across the land. It was no such thing; it was rather a product of constitutional shenanigans and coercion. Radical Republican Thaddeus Stevens candidly described the Reconstruction Congress as determined “to secure perpetual ascendency to the party of the Union” (i.e., the Republican Party). The Radicals did not want to allow political competition and sought to perpetuate themselves in power.

Second, the sordid history should also encourage us to treat the Fourteenth Amendment as a nullity. We will never return to constitutional sanity and real federalism by tinkering with the Court’s interpretation of the Amendment. The whole of the Fourteenth Amendment is so far from the simpler aims of the Civil Rights Act that it may be irredeemable. Rather than arguing with Justice Thomas and Federalist Society conservatives about whether the Due Process Clause or Privileges or Immunities Clause incorporates the Bill of Rights, we should decline to give the Fourteenth Amendment de jure status as law. We should treat it as a nullity much like the American colonists treated parliamentary enactments infringing upon their rights as Englishmen.

Some will complain that dismissal of the Fourteenth Amendment is too radical to merit discussion. On the revolutionary scale, it is no more radical than the jurisprudence of the Court. The only real question is which path leads to republican, constitutional government: rejection of an amendment that was never properly framed and ratified or perpetuation of a judicial oligarchy that suppresses federalism and self-government?