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All amendments are not created equal

Some are gospel, others mere suggestions

It helps that the Second Amendment has a powerful manufacturing lobby behind it. It helps that the press, churches, and the ACLU stand behind the First. Case after case has reached the U.S. Supreme Court about those. The problem, of course, is that other, better-funded conservative advocacy groups exist to make application of the Constitution’s provisions as selective as possible as Frank Wilhoit so adroitly observed, if only by implication.

Poor little 14th Amendment. It’s long as amendments go (the longest). Maybe that’s why its application has been so contested and/or ignored. Too long to read? Or perhaps too radical to enforce.

Sherrilyn Ifill writes in the Washington Post:

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.”

Depends on your definition of age.

States of the former Confederacy and others saw fit not to apply Section 1 for nearly 100 years after its passage. And the Supreme Court let them, Ifill wants us to remember. It’s still contested nearly 60 years after passage of the Civil Rights and Voting Rights Acts.

Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 3 is even more an orphan. No lobbying groups, powerful or otherwise, to fight for it. And that provision in Section 2 about reducing states’ representation for disenfranchising its citizens? It may as well not be there.

Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or 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, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Ifill reflects on the reluctance of courts to enforce the 14th Amerndment even now in the wake of the January 6 insurrection, and after a Colorado judge found that Donald J. Trump incited an insurrection, BUT:

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 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 proved 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.

We hold these truths to be self-evident, that Americans are better at spouting phrases from their founding and governing documents than they are at living by them.

Remember when conservatives accused liberals of moral relativism? Yeah.

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