Much like Jane Austen’s Northanger Abbey or oatmeal raisin cookies, the constitution’s 14th Amendment is remarkably underrated. Overshadowed in today’s political arena by headline-generating disagreements over the First and Second Amendments, the 14th is more like the proverbial sixth player on a basketball team, entering the game with little fanfare but delivering fantastic results and leaving fans wondering why she doesn’t get more playing time.
The 14th amendment has been cited in more major litigation than any other amendment, including landmark cases such as Brown v Board of Education that outlawed public school segregation, and to protect women’s health rights. And the 14th Amendment is not just a relic from another era, but continues to benefit Americans of all backgrounds. Its protections have been cited in recent cases to reject unlawful search and seizures, ensure marriage equality and to deny efforts to restrict or limit voting rights. It’s even been used to expand gun ownership rights.
While recently gaining notoriety in some conservative circles the 14th is surely recalled, if recalled at all, for its first section on citizenship rights: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” This much ballyhooed provision reinforces the Civil Rights Act of 1866, which ensures that “all persons born in the United States” are citizens and are to be given “full and equal benefit of all laws.”
But wait there’s more!
The five sections that make up the longest amendment to the constitution go well beyond the issue of citizenship. Equally important provisions underpin foundational American rights and values of equal protection under the law and due process. Its breadth and use of unambiguous language make clear that these rights and protections are to be inclusive, reserved not only for citizens, but rather “any person” in the country.
Before the 14th Amendment was passed after the Civil War, the protections outlined in the Bill of Rights applied only to the federal government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so (and often did not). Individual states decided which rights and protections to extend to certain residents but deny others.
But with the adoption of the due process clause in the 14th, and in part because of how the Supreme Court applied it, all citizens were now guaranteed that neither federal nor the state governments could deprive them of fundamental liberties. In other words, the 14th Amendment is the straw that stirs the Bill of Rights drink.
Recent suggestion to amend the 14th should not go unchallenged. It is a not so subtle threat to the constitutional linchpin that addresses citizenship, rights, and equal protection under the law. Frederick Douglass said it provides “full freedom to every person without regard to race or color in the United States”. That is something worthy of more than just an afterthought.