The Fourteenth Amendment and 'Original Intent'?

Great Debates
1

Original intent, when it comes to the U.S. constitution, at least, does have a certain draw for some people. What better way could there be to interpret any document, including the U.S. Constitution, than the original way it was intended to be?

The (U.S.) Bill of Rights was written over 200 years ago. And you have to concede a lot has changed since then. For example, we no longer use punishments like drawing and quartering, when the 8th Amendment’s prohibition against “cruel and unusual” punishment, was enacted.

But forget I even mentioned that above. This thread is about a more recent amendment. The Fourteenth Amendment.

The Fourteenth Amendment reads, in part:

My question is simple: What was the “original intent” of this clause, in the Fourteenth Amendment? Specifically, due process and equal protection?

The original first ten amendments were never meant to apply to the states. This is where we get Free Speech and double jeopardy–and indeed, cruel and unusual punishment. But they were only applied to the states, using something called “substantive due process” (as opposed to “procedural due process”), and the due process clause of the 14th Amendment. How close is this to the original intend, of the framers of this amendment? I mean, even arch-conservatives, like Antonin Scalia surely would think the First Amendment should apply to the states now. Was he right?

And “equal protection”–specifically, Brown v. the Board of Education, where “separate but equal” was struck down unanimously. Would the authors of this amendment concur with that? (I certainly do–as I assume most of you do. But what about the people who wrote this clause…?)

I patiently await your replies:)

2

The framers of the constitution left it sort of open-ended. It was meant to be an evolving document.

The framers never imagined the vast network of public education, although I think they would probably approve of it. They might be shocked at the idea of universal education for all races and both genders, and by both genders being educated together-- that might surprise them more then free blacks being educated with whites.

I think while they would be surprised that the community standard had changed so radically, they would accept the fact, and be proud of the fact that the document they had written was still relevant in such a radically different society. That was, after all, their goal.

I think without knowing that an experiment in “separate but equal” had been tried and found to be unworkable, they would probably come up with that idea, but once it was explained to them that we tried that, and it didn’t work, they would accept the “Brown” decision. These were not stupid nor inflexible men. If they were somehow brought into the future, they would want to be thought of as forward thinking in their new time, just as they had been in their own, so whatever personal discomfort they may have felt about the issue, I think they would swallow.

What I’m getting at is that the original intent is that the document remain relevant, even if that means it needs to be reinterpreted.

States were more “nations lightly bound” in 1776 than jurisdictional areas in a single nation, as they are now. The constitution has to evolve to take that into account as well, and I think it’s an inevitable thing that this should happen. It’s not a mere coincidence that the war that ended up making a much more powerful federal government happened at the time when Morse code was being used to instantly communicate across states, and the phone was in the offing. When you can Skype and Facetime people across the country from your phone while you are walking down the street, the states are not so far apart anymore.

I think the framers, if they were brought into the present would pat themselves on the back at the relevance of the constitution to a country that has gone through as much change as the US has in almost 250 years. And they would deserve it.

3

I don’t think the OP is talking about the framers of the Constitution in 1789, but rather the framers of the 14 the Amendment.

4

It was at least in part to protect the rights of former slaves, who were vulnerable to abuse of power even though they had been freed by the 13th amendment.

5

Specifically, the 14th Amendment forbids the states from officially establishing a second-class citizenry: the freed slaves were meant to be legally indistinguishable from whites.

What’s always struck me as weird is the 14th’s going into the seemingly unrelated topic of public debt.

6

I am not a lawyer, but it seems pretty clear.

The purpose of the 14th amendment was to prevent either the federal or state governments from making any laws that abridged the rights and privileges of citizens. If a citizen had a right granted to him by the federal constitution, that right could not be abridged by any law passed by the state. Seems straightforward to me and exactly what the writers of the amendment intended.

7

Well, yes – that’s why they wrote Art. V:

And Washington, in his Farewell Address, warned AGAINST changing the Constitution’s meaning without using the amendment process:

8

They were afraid that once the southern states were readmitted, their representatives would try to block payments to people or institutions that financed the Union side of the war.

9

Rep. John Bingham (R - OH) wrote part of the 14th Amendment. He was a Radical Republican so his intent was to stamp down on states rights and incorporate the Bill of Rights to the states to protect the now former slaves. The big question was how to make former slaves citizen. This was answered by Sen. Jacob Howard (R - MI) who gave the solution of if you were born in the US you are a citizen.* The other parts were to get rid of the 3/5 rule and in its entirety should be taken in context of giving the former slaves the right to vote hence the reduction of Representatives if they were denied the right to vote.** The public debt clause was to specify exactly what debt the US was responsible for. It specifies that it is responsible for the debt of the USA but not the CSA. I’ve never been clear on what the writers meant by “shall not be questioned”.

I think the real problem with the 14th Amendment is that it was castrated almost immediately. The Slaughterhouse Cases made the Privileges and Immunities Clause practially null and void. Congress never enforced the Representatives Clause. The Citizenship Clause was interpreted by SCOTUS to give illegal immigrants full constitutional rights.

  • Illegal immigration was not a huge problem at the time so the issue of anchor babies was not even considered.

** Never implemented but should have been. We wouldn’t have had to wait 100 years for the Civil Rights movement for voting rights.

10

Note that there are several clauses in sec. 1 of the 14th Amendment, and they each have their own body of law. The P&I clause was largely written out of the law by some early SCt decisions, although Justice Thomas has more recently argued that those decisions were incorrect and that the P&I clause can be recognized as a source of substantive rights.

As for incorporation, here is a website summarizing the law and some of the arguments around it. It bears notice that the parts that are still unincorporated (basically, grand juries and civil jury trials) are features that would impose significant expense on the operation of state government, and I have heard it suggested that those practicalities are the rationale for the Court’s reluctance to incorporate the Bill of Rights completely.

Originalism can mean somewhat different things. Justice Scalia, for instance, was largely dismissive of legislative intent, finding it irrelevant as a theoretical matter and too subject to manipulation in practice. He generally argued for interpretation according to how constitutional or statutory language would have been originally understood, by those at whom it was directed. Other originalists may argue differently, but I expect that Scalia would have had little interest in what the authors of the 14th Amendment thought it meant, and instead would have looked to what society at large would have thought those words meant at the time.

11

I’m glad someone started this thread. I’ve long had the same question, but could never get around to composing an OP that asked precisely what I wanted to ask.

IANAL, nor have I read widely or deeply on the subject, but I’ve always thought the 14th amendment was intended to target former slave states during Reconstruction, to force them to treat blacks fairly in regards to their basic, human rights. So, for example, they knew that some former slave states might try to say “OK, blacks aren’t slaves anymore… but they’re not citizens, either” and try to prevent them from owning property or whatever. So the 1st sentence of section 1 was meant to make sure they were recognized as citizens, and the framers of the 14th Amendment never imagined that it would create the concept of “birthright citizenship” whereby any baby born on US soil, no matter who the mother was nor the circumstances of birth, would automatically be granted US citizenship.

The thing about the “due process” and “equal protection” clauses is that they are made up of vague, abstract, philosophical terms. These two clauses have been used to discover all kinds of “rights” unimaginable at the time the amendment was ratified, specifically pertaining to discrimination on the basis of sex, disability, sexual orientation, things of that nature. For example, the “equal protection” clause has been used heavily in arguments about same-sex marriage, with those in favor saying that not granting two men or two women a marriage license violates the “equal protection” clause. But to me that is far from obvious. What does “protection” have to do with a marriage license? My first thought again is that these clauses were meant to prevent specific abuses that former slave states might commit or already were committing; for example, not giving someone accused of a crime a fair trial (“due process,”) or not enforcing laws against assault, robbery, murder, rape, etc. when the victim was black (“equal protection.”) That is, these terms were originally thought of literally, with “equal protection” pertaining specifically to laws that are designed to “protect” people, not generalizable to a catch-all term prohibiting any form of discrimination whatsoever. I think we would all agree that the framers of the 14th Amendment did not even think women should have the right to vote, let alone that there was a right to same-sex marriage. So what exactly did they mean? Is there any way to know? Are there letters, transcripts, records of the revision process that shed any light on the subject?

12

Senator Jacob M. Howard also participated in drafting the amendment, and expressed this intent rather clearly: “The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees” (context indicating that the “fundamental guarantees” referenced were those set forth in the first eight amendments to the federal Constitution).

13

IIRC, one of the points in the Dred Scott decision was that Dred was a thing, a possession of his master like the furniture or the livestock, and so not a citizen of the state - therefore had no standing to challenge for his freedom. (your coffee table cannot sue you in court. Although apparently your wallet full of money can offend the law and be seized by the police) The purpose of the amendment was to exactly define “citizen” (in the US constitution’s typically inexact way) so as to leave no doubt that anyone who was born within its boundaries or naturalized was a citizen of the USA, and as such a citizen also of that state, thereby closing the “you are not a person” or “you have no standing in this court” loophole.

14

Section 1 of the 14th amendment gets all of the discussion, but Section 2 is instructive:

[QUOTE=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.
[/QUOTE]

(emphasis added). After talking about equal protection, privileges and immunities, and due process of law, the same drafters of the amendment explicitly allowed for states to deny the right to vote on the basis of race and those under age 21, and implicitly permitted states to deny the right to vote based on sex. Three separate subsequent constitutional amendments were required to allow racial minorities, women, and those 18 and older the right to vote.

When you read the amendment in that context, it is absurd how far our 14th amendment jurisprudence has strayed when courts find a right of same sex marriage or abortion on demand. It is an important part of orderly process that when society changes to think that certain things are a basic part of a decent society, like giving women the right to vote, that the change is made through that process and not by skirting it because we are not happy with the pace of change. The power to do good is the power to do evil.

15

Wow you are so wrong in this

The ruling was NO ONE of African descent whether slave or not was a citizen and thus could not sue in a Federal court. “Being a possession” had nothing to do with it.

16

PROVIDED they were willing to sacrifice a proportional number of Representatives. Unfortunately this was never enforced.

17

This is better suited to Great Debates.

Colibri
General Questions Moderator

18

But Section Two only deals with the right to vote.
Weren’t the abortion and same-sex cases decided based on the other sections?

19

The fifteenth amendment, ratified in 1870 (a little less than two years after the fourteenth amendment), explicitly forbids denial or abridgement of the right to vote on account of race, color or previous condition of servitude. So the option for a state to deny the right to vote in exchange for less representation was in effect for only a short time. From the time the fifteenth amendment was in place, it was simply illegal to deny the right to vote based on race.

The right to vote was enforced by the federal government under reconstruction. For instance, the population of Mississippi was over 50% former slaves, and they elected two black senators. The right for black people to vote in former Confederate states began to be suppressed again when reconstruction ended in 1877.

The state legislatures were too clever to simply try to make it illegal for blacks to vote. Rather, they relied on things like poll taxes and literacy tests. White supremacists also used physical intimidation against blacks who tried to vote, and against anyone who tried to help them. This didn’t end until the sixties, with the ratification of the twenty-fourth amendment and the passage of the Voting Rights Act.

20

I believe Roe v. Wade was decided based on a right to privacy that isn’t explicitly written into the Constitution.