CV Explainer: What is the Fourteenth Amendment?

CV NEWS FEED // The 14th Amendment to the United States Constitution appears frequently in Democratic talking points on issues ranging form abortion to voter discrimination. Many far-left politicians and lawyers use it to justify violating some Americans’ rights in favor of the rights of others. It has been used to promote homosexual “marriage,” males using female bathrooms, and even in the recent debates over the national debt.

Why was the 14th Amendment originally added to the Constitution? Why are politicians able to use it so frequently, and in such a variety of ways? What does this Amendment actually say?

Here is everything you need to know about the 14th Amendment.

The History

After the Civil War and the ratification of the 13th Amendment, some southern states had yet to recognize black Americans as citizens. Legal structures such as the “Black Codes,” “Jim Crow Laws,” and “Vagrancy Laws” were meant to keep black Americans enslaved in everything but name.

The Civil Rights Act of 1866 gave adult black men the ability to be self-governing citizens with access to both state and federal legal systems. The act brought an end to the laws which kept them from forming contracts, being employed, and owning property.

The 14th Amendment

Two years later, the states ratified the 14th Amendment in order to make the Civil Rights Act of 1866 permanent. 

Since then, a series of Supreme Court cases citing the amendment has expanded its narrow influence from addressing racial issues to having legal applications in the broad, nebulous realm of identity politics.

>> For a quick VIDEO on “Identity Politics”, CLICK HERE <<

Section One of the amendment, considered by many to be its heart, consists of three broad and open-ended clauses:

• The Privileges and Immunities Clause: “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.”

• The Due Process Clause: “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…”

• The Equal Protection Clause: “…nor deny to any person within its jurisdiction the equal protection of the laws.”

Roe v. Wade

The 14th Amendment was used to justify a sweeping federal abortion mandate in Roe v. Wade, which was overturned in 2022 in Dobbs v. Jackson Women’s Health Organization. 

The “right to privacy” cited so often in pro-abortion arguments and used as justification in Roe often appears alongside interpretations of the broad clauses of Section One of the 14th Amendment. The term “right to privacy,” however, is found nowhere in the amendment itself. It was only recognized by the Supreme Court in 1965 in Griswold vs. Connecticut, which ruled that the state may not prohibit married persons from using artificial contraception. 

In that case, one justice – John Marshall Harlan – invoked the 14th Amendment as the basis for a couple’s “right to privacy.” His logic was later extended to the so-called “right” to abortion in Roe v. Wade. 

A ‘Right to Privacy’? Not in the Constitution

In Justice Samuel Alito’s majority opinion for Dobbs v. Jackson Women’s Health Organization, he stated that Roe v. Wade ignored the vast history of court rulings on the local level of government which held that killing an unborn child was illegal.

Alito argued that the Due Process Clause of the 14th Amendment should apply only to practices “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” 

This interpretation of the 14th Amendment would have the potential to overturn rulings about same-sex “marriages,” though Alito did specify “our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Justice Clarence Thomas, however, stated in his opinion that he would reconsider and potentially overrule “all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” He added that substantive due process is “’particularly dangerous’” because it “’exalts judges at the expense of the People from whom they derive their authority,’” “distorts other areas of constitutional law”; and (as in Dred Scott) “is often wielded to ‘disastrous ends.’”

Civil Rights Laws

The 14th Amendment, originally intended to solidify the rights of black Americans, has since been used by progressives to craft legislation favoring other self-identified oppressed groups. 

The amendment was used in the Obergefell v. Hodges case in 2015, which cited the 14-Amendment right to “Liberty” as grounds for the federal legalization of so-called same-sex “marriages.” 

In dissenting opinions, Justices Antonin Scalia and John Roberts argued that marriage is mentioned nowhere in the Constitution of the United States, including the 14th Amendment. Therefore, marriage law falls under the aegis of state legislatures. The federal government’s action in Obergefell v. Hodges removed power from the people to make decisions about identity politics and sexual orientation laws in their own state governments. 

The interpretation of the 14th Amendment in Obergefell has paved the way for future potential decisions. 

Most recently, LGBTQ activists “have brought a number of challenges under the Equal Protection Clause against public school boards’ policies that prohibit” males who identify as females “from accessing the bathroom consistent with their gender identity,” the Congressional Research Services stated. “Federal appellate courts reviewing such challenges have recently split on how constitutional protections apply.”

The closing clause of the 14th Amendment gives Congress the power to “enforce, by appropriate legislation, the provisions of this article.” 

>> For a great overview of “Identity Politics”, CLICK HERE <<

The Debt Ceiling

As Congress discussed and ultimately raised the nation’s debt ceiling in April 2023, the 14th Amendment came up yet again. This time the debate arose over the powers granted to the different branches of government. 

Politicians on both sides of the aisle cited Sections Four and Five of the 14th Amendment as grounds for their arguments. 

• Section Four reads, “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, shall not be questioned. 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; but all such debts, obligations and claims shall be held illegal and void.”

Those advocating for raising the debt ceiling cited this section as proof that the president had the power to raise it. “The section was designed to remove debt payments from potential post-war partisan bickering between the North and South,” CNN reported, “but it also applies to the wide divide between Democrats and Republicans today.”

“Invoking the 14th Amendment would also open the door to potential abuse of presidential power by allowing the executive branch to circumvent Congress, said Philip Wallach, senior fellow at the right-leaning American Enterprise Institute.” CNN continued. “And it could forever end the ability of lawmakers to negotiate with the president over the debt ceiling.”

Wallach’s comments refer to Section Five of the Amendment, which gives Congress – not the president – the power “to enforce, by appropriate legislation, the provisions of this article.” If the president were ever to invoke Section Four of the Amendment, it would remove power over the debt ceiling from the people’s representatives in Congress.

Consequences

The broad nature of the 14th Amendment should give Americans pause. As seen in Roe v. Wade, the language can be interpreted to give the federal government vast powers not originally intended by the framers. 

The Civil Rights Act, which the 14th Amendment solidifies, is often not interpreted in a way that results in some citizens’ rights being curtailed.

The rights of unborn children were not taken into consideration in Roe v. Wade, and the rights of female children in public school bathrooms are still under debate. 
In a post-Dobbs era, the American public should be acutely aware not only of the subversive potential of the 14th Amendment, but also of its power to protect the rights of all Americans, not just those favored by progressive politicians and activists.