Tahlequah Daily Press


June 2, 2014

Court battles fought over 14th Amendment - It’s about more than race

TAHLEQUAH — Of the three Reconstruction Amendments to the U.S. Constitution - or any amendment, for that matter - the 14th is the most litigated.

Passage of the amendment was traumatic. States of the defeated southern confederation realized the 14th Amendment was a federal encroachment on state powers, and except for Tennessee, they refused to sanction it. Southern states were placed under martial law until the 14th Amendment was ratified.

The Reconstruction Amendments were meant to end slavery and address issues for former slaves, and the 14th deals with equal protection and citizenship. The long amendment reads:

“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.

“Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

“Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

“Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

It took time to craft the 14th Amendment in Congress. More than 70 drafts were submitted. The first vote failed in the Senate because Democrats thought the amendment gave black Americans too many rights, and the Radical Republicans believed it didn’t go far enough. A second measure died in the House of Representatives.

The third proposal was a compromise that also addressed ex-Confederate voting rights and war debt. Though many Radical Republicans were disappointed that the amendment did not guarantee voting rights for black citizens, Congress sent it to the states by votes of 33-11 in the Senate and 138-36 in the House.

After initially rejecting the amendment in a December 1866 vote, South Carolina’s ratification on July 9, 1868, provided the necessary endorsement of 28 states.

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said approval of the 14th Amendment was essential after the “notorious” 1857 decision of the Supreme Court in Dred Scott v. Sandford.

“In that case the [Chief Justice Roger] Taney Court ruled that whether or not to allow slavery was a decision for the states to make, not the national government,” Savage said. “It also held that black people, even free blacks, were not citizens of the United States, and therefore were not entitled to any of the rights and privileges of citizenship. The 14th Amendment was designed to overturn this decision. It established that all persons born in the United States are citizens and that no state is allowed to deprive citizens of their rights under the Constitution.”

The 14th Amendment’s first clause dealing with equal protection for citizens has been litigated ad infinitum. The Supreme Court has used it to make decisions and subsequently reverse itself.

“The equal protection clause has been cited in more litigation than any other amendment,” said State Sen. Mike Brown. “In 1896, the U.S. Supreme Court ruled, in Plessy v. Ferguson, that ‘separate but equal’ facilities were considered sufficient to satisfy the 14th Amendment. This opinion stood for almost 60 years.”

But the 14th Amendment was again cited by the court in Brown v. Board of Education of Topeka (1954).

“In the justices’ unanimous decision, the Supreme Court overturned the earlier decision in Plessy v. Ferguson and declared school segregation unconstitutional,” Brown said. “The decision stated ‘In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.’ The decision ended government sanctioned school segregation in the United States.”

Until passage of the Indian Citizenship Act of 1924, the status of American Indians within the U.S. was ambiguous. Many legislators, including Michigan Sen. Jacob Howard, who authored the 14th Amendment’s citizenship clause, believed those associated with tribes were not citizens. There was also disagreement whether the federal government had any jurisdiction over indigenous Americans. The Supreme Court ruled in Elk v. Wilkins (1884) that citizenship was not assured to Indians renouncing tribal affiliations.

Other first clause cases have determined that children born in the U.S. to legal immigrants not serving diplomatic duty are citizens, and conditions under which citizenship can be lost or forfeited.

Equal protection violations were acknowledged by seven Supreme Court justices in the 2000 case of Bush v. Gore due to different vote-counting methods in different counties of Florida, though it based its decision to end the presidential vote on the assertion that another lawful recount was not possible by Dec. 12, 2000.

A famous 14th Amendment decision involves the 1873 Slaughter-House Cases. Due to outbreaks of disease in New Orleans attributed to unsanitary disposal of slaughterhouse waste upriver on the Mississippi, the Louisiana legislature permitted New Orleans to incorporate all slaughter works within the city limits. Butchers were required to slaughter cattle on-site.

The butchers filed suit on grounds of equal protection, due process and privileges and immunities. In finding against the butchers, the court ruled 5-4 that the 14th Amendment applied only to citizenship in the U.S., not the states. The decision – which essentially gutted the 14th Amendment – is often ridiculed. Many court cases have frequently reapplied the amendment’s protections.

The other clauses of the 14th Amendment are litigated less frequently, yet often enough to offer recent case histories. Some examples:

• In Saenz v. Roe (1999), the Supreme Court ruled that the privileges and immunities clause protects a right to travel between states. The ruling overturned a California law limiting welfare benefits to those who had lived in the state for less than a year.

• Though McDonald v. Chicago (2010) is usually cited as a Second Amendment case, the Supreme Court used the long-standing practice of incorporating the 14th Amendment to extend constitutional guarantees to state or municipal law. Chicago firearm restrictions were ruled unconstitutional.

• In Lawrence v. Texas (2003), the Supreme Court ruled sodomy prohibitions unconstitutional, applying the 14th Amendment’s substantive due process protections to consensual sexual behaviors. The decision was another reversal, invalidating the Bowers v. Hardwick decision of 1986 and striking down laws intended to prohibit relations between homosexuals.

• The 1974 case of Richardson v. Ramirez found it was not a violation of the 14th Amendment if states strip convicted felons of their voting rights.

• In Tennessee v. Lane (2004), the Supreme Court ruled that disabled persons could not reach the top floors of the state’s courthouses. Therefore, Tennessee’s sovereign immunity from lawsuit did not apply because Congress had the right to mandate “reasonable accommodations” through the Americans With Disabilities Act. The case touched on the 14th Amendment’s enforcement clause.

Thanks to its equal protection clause, the 14th is one of the most important amendments ever made to the Constitution.

“Ending segregation, and forbidding unequal treatment under the law, did not solve the problems black Americans have, because the 14th Amendment only applies to state – or government – discrimination, not to discrimination by private individuals,” Savage said. “The Civil Rights Act of 1964 was designed to address this, but has had only limited success. Today the equal protection clause is even used by whites to challenge affirmative action programs.”

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