Monday, June 17, 2024

Opinion | Why are U.S. courts afraid of the 14th Amendment? Because it’s radical.

Opinion | Why are U.S. courts afraid of the 14th Amendment? Because it’s radical.


Sherrilyn Ifill, a visiting professor at Harvard Law School, will launch the 14th Amendment Center for Law & Democracy at Howard Law School in 2024.

Why are U.S. courts so determined to dilute the 14th Amendment?

Consider the recent ruling upholding former president Donald Trump’s appearance on Colorado’s 2024 presidential ballot. Here we have the latest entry in a dismaying 155-year tradition of American judges stripping that radical amendment to the U.S. Constitution of its intended power.

Judge Sarah B. Wallace’s decision that Trump engaged in insurrection but is nevertheless qualified to run for office is emblematic of the often outright resistance courts have shown to the 14th Amendment’s guarantees and protections. This instance applies to Section 3, which bars any participant in a rebellion against the government of the United States from holding public office. But almost from its inception, all the amendment’s radical provisions have inspired fear and timidity in jurists of every stripe.

I use the word “radical” deliberately. The 14th Amendment was conceived of and pushed by the “Radical Republicans” in Congress after the Civil War. They were so named because of their commitment to eradicating slavery and its vestiges from American political life. A number had been abolitionists, and all had seen the threat that white supremacist ideology and the spirit of insurrection posed to the survival of the United States as a republic. Although the South had been soundly defeated on the battlefield, the belief among most Southerners that insurrection was a worthy and noble cause, and that Black people — even if no longer enslaved — were meant to be subjugated to the demands of Whites, was still firmly held.

The 14th Amendment was meant to protect Black people against that belief, and the nation against insurrection, which was understood to constitute an ongoing threat to the future of our country. Frederick Douglass, the formerly enslaved abolitionist who rose to become one of the most prominent voices of the Reconstruction period, had no illusions about the persistence of the “malignant spirit” of the “traitors.” He predicted that it would be passed “from sire to son.” It “will not die out in a year,” he foretold, “it will not die out in an age.”

It was of this understanding that Section 3 was born. Most lawyers never learn about Section 3 during law school or thereafter. The recent scholarly duels that have emerged over its meaning reflect its surprise introduction to many seasoned constitutional scholars. But there is little room for confusion in interpreting it.

The language is clear: “No person shall … 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 … shall have engaged in insurrection or rebellion against the same.” William Baude and Michael Stokes Paulsen, widely respected conservative constitutional legal scholars, have combed through the legislative history to answer the question of whether the president is to be considered an “officer of the United States.” Their exhaustive research points inexorably toward the conclusion that Section 3 is meant to cover both the president and vice president as well as other federal and state officials. They note the “absurdity” of imagining that the Reconstruction Congress would include all other officers, yet exclude those two.

Wallace’s decision is of a piece with courts’ frequent unwillingness to contend honestly with all the radical demands of the 14th Amendment. During Reconstruction and the first half of the 20th century, it was the Supreme Court that left unprotected Southern Black people seeking to vote and engage in the political process in the face of deadly violence by White mobs seeking to disenfranchise them (United States v. Cruikshank, 1875). It was the Supreme Court that held that the 14th Amendment did not protect Black citizens from discriminatory conduct by private actors (Civil Rights Cases of 1883). And it was the Supreme Court that endorsed a system of Jim Crow segregation that essentially nullified the 14th Amendment for Black people in the South for nearly 100 years after its ratification (Plessy v. Ferguson, 1896). Later, the court created onerous burdens to prevailing in discrimination cases brought under the 14th Amendment.

In short, post-Reconstruction courts have rarely upheld or applied in full the ambitious demands of the 14th Amendment. Instead, its guarantees have been watered down to accommodate the political forces of the day or repurposed to serve powerful interests (such as the dubious determination that corporations are “persons” entitled to its protections), or treated like an a la carte menu, in which some items — such as the guarantee of privileges and immunities and all of Section 2 (which would reduce state representation as punishment for voter suppression) — are essentially ignored.

The 14th Amendment is treated as a suggestion, but rarely imposed in full measure when the status quo will be upended. This was perhaps most famously on display in 1955, in the case of Brown II, when the Supreme Court undercut its majestic decision of a year earlier in Brown v. Board of Education, by hedging on the immediate end to segregated schools and counseling instead that local officials should move with “all deliberate speed.”

The Colorado court’s approach to Section 3 continues this tradition. To find that a president incited a violent insurrection against the United States, but to hold that such a president can still run for public office — indeed to return to the presidency itself — could not stand in starker opposition to the words and spirit of Section 3.

The 14th Amendment has once again proven too bold for the judges empowered to interpret it. Political forces are at play again, this time fearful of a backlash if Trump is removed from the ballot. As this case makes its way through the appellate process and, most likely, to the Supreme Court, it should be understood in the context of how the timidity and unwillingness of judges to acquiesce to the judgment of the 14th Amendment’s framers effectively derailed our democracy’s promise after Reconstruction and until the mid-20th century. We must ensure that it does not do the same in the 21st.



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