Recent discussion of the 14th Amendment has motivated me to take another look at this Reconstruction Era Amendment to the U.S. Constitution. The most familiar part of the 14th Amendment is its prohibition of State deprivation of “life, liberty, or property without due process of law.” A close second is the prohibition of State denial of “equal protection of the laws.” Then there is the incorporation “clause” applying Bill of Rights protections (or some of them) to the States. The term “clause” was in quotes because there is no such clause. Still, our courts often cite the 14th Amendment as though it contained an incorporation clause.¹ To the CLB the supposed incorporation clause of the 14th Amendment is simply a mystery of faith similar somehow to that mystery of transubstantiation in religious communion. You may believe in it, but there is no sort of proof.
Moving on from Section 1 to Section 2 we see language of congressional apportionment counting all of a State’s population, except for “Indians not taxed,” whatever that means. Then there is a grant of voting rights to all males over the age of twenty-one (21) years. Clearly, Section 2 tells us that the “equal protection” of Section 1 did not apply to women seeking to vote.
Section 3 could have relevance in today’s politics. There we see the disqualification from federal office of those who “have engaged in insurrection or rebellion” against the United States after having taken the oath to support the Constitution. For the disqualification to apply, no conviction is required.
Section 4 of the 14th Amendment garners the most current attention from its text on “the public debt.” Here is that text:
“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,² shall not be questioned.”
So what “public debt” is “authorized by law”? We could say all of it included in a Budget or none of it incurred in violation of a debt ceiling.
Continuing in Section 4 we see some remarkable text about a sort of slavery reparation far different from what is discussed today:
“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;”
The slavery reparations mentioned at Section 4 are those of former slaveholders whose lawful property was taken from them by force of law with no discernible due process or compensation.³ If such reparation were to be suggested or even mentioned today there would be pushback and protest on a monumental scale.
Section 5 is a single sentence permitting congress to enforce the Amendment with “appropriate legislation.”
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¹ See, for example, the SCOTSI decision in Timbs v. State, 84 N.E.3d 1179 (Ind. 2017) wherein Justice Slaughter wrote against incorporation of the 8th Amendment “excessive fines clause.” The SCOTUS reversed at 139 S. Ct. 682 (2019).
² Mention of “insurrection or rebellion” is explained by the context of its Reconstruction Era origin.
³ The CLB has opined in the past that slavery was an inexcusably vile institution. It is not defended here.
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