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Conservatism's Love-Hate Relationship with the 14th Amendment

August 18, 2015

Of all of the Republicans' manufactured controversies during the Obama presidency, one less-remembered episode may be the most telling of all. Unable to prevent three-fifths of the Senate from voting to confirm Elena Kagan as the newest Supreme Court Justice, Republican in May 2010 denounced Obama's nominee for declaring that the Founding Fathers' three-fifths of a person standard for counting African-American slaves was a "defect" in the U.S. Constitution.
You read that right. During a 1993 speech honoring her mentor and late Supreme Court Justice Thurgood Marshall, Kagan spoke approvingly of Marshall's lament expressed six years earlier to mark the 200th anniversary of the drafting of the Constitution:

[T]he government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

The Republican National Committee responded to that self-evident truth with a memo to reporters demanding to know:

"Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?"

That, in a nutshell, captures the attitude of many conservatives toward the Civil War Amendments. While only the most fervent practitioners of the GOP's Southern Strategy regret the 13th Amendment's abolition of slavery, with its draconian voter ID laws today's modern Republican Party has made a mockery of the 15th Amendment's guarantee that the franchise will not be "denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." But it is the 14th Amendment that elicits the greatest and most visceral conservative scorn of them all. After all, many on the right still seek to deny to African-Americans, Hispanic Americans and gay Americans due process and equal protection of the laws promised to "all persons born or naturalized in the United States." Instead, as growing numbers of Republican insist, those 14th Amendment rights are limited to corporations and fetuses, neither of which is an actual person at all.
Consider, for example, birthright citizenship itself. Crafted to ensure citizenship for the former slaves, the Constitution beginning in 1868 enshrined the rights of "all persons born or naturalized in the United States." But during a period in which illegal immigration from our southern border has dropped to net zero, some of the GOP's best and brightest insist that some people are more equal than others. As New Jersey Governor and 2016 White House hopeful Chris Christie recently put it to right-wing radio host Laura Ingraham:

"I think all this stuff needs to be reexamined in light of the current circumstances," he said. "[Birthright citizenship] may have made sense at some point in our history, but right now, we need to re-look at all that."

Of course, right now many of those new citizens are born to parents who speak Spanish. And for the likes of Christie's rivals like Sens. Rand Paul (R-KY) and Lindsey Graham (R-SC), that means birthright citizenship "should stop" and is "a mistake." While Louisiana Senator David Vitter is now pushing legislation "reimagining the 14th Amendment," in the House Tea Party caucus members led by Rep. Steve King (R-IA) proposed a bill designed to eliminate so-called "anchor babies" and supposed "birth tourism." But with a recent poll showing almost two-thirds of GOP supporters back the mass deportation of the 11 million undocumented immigrants currently living in the United States, it's no wonder Texas State Health Services is now refusing citizenship papers for some babies born to Mexican parents living in the state.
Meanwhile, another group of Republicans wants confer citizenship on those who haven't been born at all.

As we learned during the August 7 GOP presidential debate, some Republicans are claiming that the 14th Amendment due process and equal protection rights apply to fetuses. After Fox News host Megan Kelly informed the candidates that New York Cardinal Timothy Dolan had called rape and incest exemptions "preposterous" and said "they discriminate against an entire class of human beings," Marco Rubio (R-FL) offered this novel--and preposterous--constitutional theory:

"I've advocated passing a law that says that all human life, at every stage of its development, is worthy of protection--in fact, I believe that law already exists. It's called the Constitution of the United States."

While Rubio wouldn't offer specifics, former Baptist Minister, Arkansas Governor and Fox News regular Mike Huckabee did. Huckabee, who never shies away from comparing abortion to slavery and the Holocaust, simply ignored 42 years of Supreme Court precedent since Roe v. Wade:

"I think the next president ought to invoke the Fifth, and Fourteenth Amendments to the constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.
The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And, this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child's Fifth and 14th Amendment rights for due process and equal protection under the law."

Leave aside for the moment would-be President Huckabee's confusion over the separation of powers or his delusions about deploying troops to round up abortion providers. Under Huckabee's theory, fetus-bearing women would be eligible for a host of other protections and benefits, perhaps including health coverage, welfare payments and housing assistance. (As Al Franken put it 10 years ago, for conservatives "life begins at conception and ends at birth.") And while there are roughly four million live births and one million abortions annually in the United States, an estimated 15 to 20 percent (and potentially a much larger share) of pregnancies end in miscarriage. To put it in terms Governor Huckabee would understand, apparently the Supreme Being--and not the Supreme Court--is the bigger threat to fetal 14th Amendment rights.
In any event, most of Rubio and Huckabee's fellow Republicans disagree on the Constitution's current embryonic due process and equal protection guarantees. That's why the 2012 GOP Platform, like those before it, called for a "Human Life Amendment" which would ban all abortions in all cases:

Faithful to the "self-evident" truths enshrined in the Declaration of Independence, we assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.

The corollary for conservatives, of course, is that the Fourteenth Amendment's protections do not apply to American women. (It should be noted that Justice Ruth Bader-Ginsburg felt Roe should have been decided on equal protection grounds and not, as Justice Blackmun argued in his majority opinion in 1973, "on a 'right of privacy' under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit.") The GOP disdain for "the health of the mother" isn't just reflected in the hundreds of draconian anti-abortion regulations passed just since 2010. As Tennessee Republican Todd Gardenhire explained to a Democratic colleague who asked, "Why don't we put these same standards on a man who wants to have a vasectomy?"

"Having personal experience in that field and also having one reversed I want to promise you that when ... you start talking to a doctor about them whacking on you down there, you want to wait a while and think about it. Men go through a lot more stringent process to have a vasectomy than a woman does, I would assume, on an abortion."

But while most conservatives don't believe the Equal Protection Clause applies to women's bodies or their pay, only a declining share still insist the 14th Amendment doesn't apply to LGBT Americans. Unfortunately, they--and their candidates--dominate the Republican presidential field.
As I noted back in March 2004, the 14th Amendment has played a central role in the Supreme Court's marriage equality rulings dating back at least as far as Chief Justice Earl Warren's 1967 opinion in Loving v. Virginia. As Warren explained, "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." And in a two-decade series of opinions culminating in this year's Hodges v. Obergefell decision striking down same-sex marriage bans in the states, Justice Anthony Kennedy erected a framework for extending the due process and equal protection guarantees to gay Americans as well. Citing the Bill of Rights and the 14th Amendment, Kennedy concluded:

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Not according to virtually every Republican candidate for president and the who's who of social conservatives who signed the "Marriage Pledge." For them, the Court's ruling making marriage equality the law of the land was "the worst decision since Dred Scott."
Ironically echoing Chief Justice Roger Taney abominable opinion in Scott v Sanford, the usual suspects on the right in their "pledge" essentially declared that gay Americans have no rights which the straight man was bound to respect:

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

As it turned out, the Court didn't cross that line, it erased it. But while Chief Justice John Roberts dissented from the majority's argument "that the Due Process Clause gives same-sex couples a fundamental right to marry," he nevertheless warned conservatives hoping to resurrect "substantive due process" as the basis for 21st century economic libertarianism. As Ian Millhiser explained for ThinkProgress on June 29:

This method, of implying rights from the Fourteenth Amendment's vague promise that liberty shall not be denied without due process -- otherwise known as "substantive due process" -- has a dark history. As I explain in my book, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, conservatives used this doctrine to hobble laws intended to benefit workers in the early twentieth century. The Supreme Court used it to strike down laws establishing a minimum wage, ensuring that laborers would not be overworked, and protecting workers' right to organize.

(Among the most far-reaching of them was the Court's 1886 ruling in County of Santa Clara v. Southern Pacific Railroad, after which it was "well settled" that "corporations are persons within the provisions of the Fourteenth Amendment.")
But among the very worst of these decisions by conservative Courts from the late 19th century into the New Deal was Lochner v. New York decided in 1905.
By the dawn of the 20th century, Millhiser laments, the "Fourteenth Amendment's promise of a nation that afforded basic rights to all of its citizens was largely a dead letter." Culminating with the "separate but equal doctrine" of Plessy v. Ferguson in 1896, the Court had rejected author John Bingham's intent that the Fourteenth Amendment's "privileges or immunities of citizens of the United States" would extend the Bill of Rights to the states. Instead, "the Supreme Court took this amendment, and they transformed it into something far more sinister."
Just how sinister was revealed in the 1905 Lochner case. Striking down a New York law limiting the work day for bakers who routinely labored where "sewage pipes leaked raw contents" in rat-infested "hot dungeons heated by lit ovens," the Supreme Court invented a new fundamental right, the "right of contract":

Though New York enacted a law limiting baker's hours to ten a day and sixty per week, a 5-4 Court struck this provision down in Lochner, resting the decision on a so-called "right to contract" that it read into the Fourteenth Amendment. The "right to contract" was, essentially, a right to be bound by nearly any contract a worker agreed to, no matter how desperate the circumstances or how uneven the bargaining power that forced them to agree to such a deal. Thus, if New York bakers agreed to work 14 hours a day, seven days a week, the state had no authority to take that "right" away from them.
Other decisions relying on this "right to contract" used the Fourteenth Amendment to strike down minimum wage laws and laws preventing union busting.

With the New Deal and FDR's "switch in time that saved nine," the Supreme Court turned its back on Lochner. Instead, the Court embraced the Commerce Clause as the basis for upholding three generations of government regulation of economy, including worker safety, environmental protection, Social Security and Medicare.
But in recent years, many of the same conservative minds decrying the 14th Amendment's extension to LGBT Americans have exhumed the stinking corpse of Lochner. At the forefront is Senator Rand Paul of Kentucky, who wrote in response this year's SCOTUS ruling on marriage equality:

Those who disagree with the recent Supreme Court ruling argue that the court should not overturn the will of legislative majorities. Those who favor the Supreme Court ruling argue that the 14th Amendment protects rights from legislative majorities...
Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court's decision argue yes but they argue no when it comes to economic liberties, like contracts regarding wages.
It seems some rights are more equal than others.

With his cramped view of the Constitution, it's no surprise Rand Paul opposed both the Civil Rights Act of 1965 and the Fair Housing Act of 1968. It's even less of a shock that the likes of Charles Murray would call for a billionaire-funded campaign of civil disobedience to fight against government regulations business owners themselves decided were unfair. What is far more disturbing is that some of the rock stars in conservative legal circles are now carrying the bloody banner of Lochner.
Take, for example, arch Obamacare foe and Georgetown law Professor Randy Barnett. Barnett hasn't merely written that he "would prefer that courts adopt a 'presumption of liberty' of the sort the Court seemed to employ in Lochner" in order to eviscerate the 20th century regulatory state. He has also suggested that Social Security violates "the original meaning of the Constitution." That view aligns nicely with those of Appeals Court Judge Janice Rogers Brown and others on the GOP's short-list for the next Supreme Court vacancy.
Brown regretted that ""America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers." In a concurrence with colleague Judge David Sentelle, she suggested that virtually all regulation of business, labor and Wall Street was unconstitutional:

And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

Back in 2005, legal scholar Jeffrey Rosen offered a grim forecast for the United States should the likes of Rogers-Brown and other right-wing proponents of the so-called "Constitution-in-Exile" come to control the Supreme Court under a future Republican president.

In a nutshell, Constitution in Exile (CNE) advocates argue that the Court since the New Deal has broadly and mistakenly applied the Commerce Clause, enabling a dramatic expansion of federal regulatory power not just in the economy, but into a range of social issues. The result according to CNE is not only illegitimate federal power, but the unconstitutional delegation of Congressional roles and authorities to a panoply of administrative agencies. For CNE proponents, the United States since FDR has built a national government without a basis in the Constitution, an exile, so they say, of 70 years.
New Bush circuit judge Janice Rogers Brown was speaking in the context of the Constitution in Exile when she said, "The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution." Her views, and those of many potential Bush additions to the Court, clearly imply an upheaval in the American economy and society as well between the federal government and the states.

And so it goes.
In recent years, Justice Antonin Scalia has helped conservatives distill their inversion of the 14th Amendment. In his reading of the 14th Amendment passed in 1868, upholding the Voting Rights Act's "pre-clearance" provision would have constituted the "perpetuation of racial entitlement." In 2013, Scalia argued that the 14th Amendment wasn't "only for the blacks," but provided the perfect weapon for those crusading against affirmative action:

My goodness, I thought we've-- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only the blacks. But I thought we rejected that. You say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

What many conservatives are now claiming out loud is that 14th Amendment's guarantees of due process and equal protection of the laws don't really extend to "all persons," but only to those of whom they approve. Instead, the leading lights of the Party of Lincoln now reveal, the Amendment designed to augur a "new birth of freedom" in a second American revolution protects only the power and money of businesses.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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