The Fourteenth Amendment

Here is the talk I will be delivering to the Danville Unitarians this morning. It’s longer than my usual posts, so–unless you feel the urge to visit or revisit the 14th Amendment– feel free to skip it!


Thanks to our current political environment—and especially to an argument that Section 3 of that Amendment requires barring Donald Trump from the ballot—we’ve seen an explosion in references to the 14th Amendment to the U.S. Constitution. But the 14th Amendment has been incredibly important for a long time, for reasons having nothing to do with Section 3. Together with the 13th and 15th Amendments, the 14th is credited with strengthening and “reframing” the Constitution and Bill of Rights. Together, they are frequently referred to as our Second Founding.

It’s presumably due to that current interest that I was asked to talk about the 14th Amendment today, so you will get the equivalent of my class lecture on the subject. I apologize in advance…

The 13th Amendment, as you undoubtedly know, outlawed slavery, and the 15th forbid abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” Together with the 14th, they are the Reconstruction Amendments.

Of the three, the 14th Amendment is the lengthiest and most ambitious. Thanks mainly to the Equal Protection clause, it is now considered to be a part of the Bill of Rights.

The first Section is the one with which most of us are familiar; It reads:

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.

The Congressman who drafted the 14th Amendment, John Bingham, was very clear that his intention was to make the Bill of Rights binding on the states. Most Americans don’t realize that, prior to passage of the 14th Amendment, the Bill of Rights limited only the federal government. Bingham insisted that his language—“privileges and immunities” encompassed the entire Bill of Rights, and made them binding upon the states, and the contemporaneous arguments for and against passage tended to focus on that stated outcome.

Nevertheless, after the 14th Amendment was passed, it took the Supreme Court a number of years and a collection of discrete cases to apply most of the constraints of the Bill of Rights against state and local government actors, a process called (for some reason) incorporation.

Prior to passage of the 14th Amendment, state and local officials could “establish” religions, prevent you from exercising your right to speak freely, engage in blatantly discriminatory behaviors and other activities that violated the first 8 Amendments of the Bill of Rights.

An important clause in Section One established birthright citizenship—which has recently become something of a flashpoint for the considerable number of racists and self-defined “patriots” who want to close America’s borders and prevent the children of immigrants from becoming American citizens. Since most, if not all of the people arguing against birthright citizenship are not descended from Native Americans, the hypocrisy is rather noticeable.

The Second Section of the Amendment is historically interesting, but generally obsolete—it forbids denying the right to vote to any “of the male inhabitants” of a state who have reached the age of 21 and are citizens. Since passage of that language, we’ve extended the vote to women and lowered the voting age to 18.

The Third Section of the 14th Amendment is the one that has recently become relevant to the current election cycle. It reads:

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.

The Supreme Court of the State of Colorado concluded that the language of Section 3 precludes Donald Trump from appearing on Colorado’s ballot. That decision is on appeal to the U.S. Supreme Court, which will now have to decide to affirm or reject Colorado’s analysis–whether Section 3 bars Donald Trump from appearing on all the nation’s presidential ballots. It certainly seems straightforward; in order to evade the clear language of Section 3, the Court would have to find that the President wasn’t an “officer” of the United States, or that the provision isn’t what lawyers call “self-executing”—that is, that it requires Congress to pass a bill to make it operative. Neither argument passes the smell test. The Court could also find that Trump didn’t engage in insurrection, a finding which would be equally unpersuasive. Given the Justices’ performances at the oral argument on this case, I think we can safely assume that they will find a way to duck the clear implications of the Constitutional language.

Finally, Sections 4 and 5 confirm the validity of the national debt and authorize Congress to enforce the provisions of the 14th Amendment by “appropriate legislation.”

The most important operation of the 14th Amendment—at least in my opinion—is that it constitutionalized the Declaration of Independence’s promise of freedom and equality. Scholars refer to the Reconstruction Amendments as America’s “Second Founding,” because passage of the 13th, 14th and 15th Amendments transformed the nation’s charter from what was really an aggressively pro-slavery document into one that prohibited chattel slavery; it changed it from a document that was silent on the Declaration’s call for equality to one that granted equal citizenship to everyone born on American soil; and it changed the Constitution from a charter that stood aside while state governments abused individual rights to one that protected these rights against state government abuses.

A constitutional insistence on “equal protection of the law” effected a fundamental change in American politics and society. As historian Eric Foner has explained, no state gave Black people full legal equality before the Reconstruction era and the 14th amendment. Supreme Court decisions over the last century – outlawing racial segregation, decreeing “one person, one vote”, and many others – have rested on the 14th amendment. Foner and many other historians think the 14th Amendment should be seen as a form of “regime change” — an attempt to change the United States from a pro-slavery regime, which is what we had before the Civil War, to one based on equality, regardless of race. That’s a pretty fundamental change. Historian Heather Cox Richardson has written that the 14th Amendment established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.

The Fourteenth Amendment prevents government from denying citizens the “equal protection of the laws.” What constitutes “Equal Protection” can be complicated, because governments need to classify citizens for all kinds of perfectly acceptable reasons. For example, the law draws distinctions between children and adults, between motorists and pedestrians, and between smokers and non-smokers, and those classifications don’t run afoul of the 14th Amendment.

The Equal Protection doctrine is intended to prevent government from imposing inappropriate classifications; those based on criteria that are irrelevant to the subject of the law, or that unfairly burden a particular group.  The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.

Complicating it further, although laws can be discriminatory on their face (for example, a law saying only white males can vote); these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters must weigh over 180 pounds would prevent many more women from being firefighters than men, despite the fact that weight is not an indicator of the ability to handle a fire hose or climb a ladder.

There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.

The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Lawyers call that process of taking a closer look “heightened” or “strict” scrutiny.

The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights—  apply only to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, our civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so unless you live in a city or town with a civil rights ordinance, private companies in your town can fire people for being gay, and restaurants can refuse to sell pizza to someone perceived to be gay.

Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality.  That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. As we are seeing, it has also motivated a considerable backlash from people who see equality for “those people” as an attack on their “rightful” social privilege.

Critics of Equal Protection often argue that equality and liberty are at odds: that an individual’s liberty includes the right to dislike or disapprove of others and that true liberty would include the right to act on those negative opinions. What the 14th Amendment says, in essence, is: fine. Dislike Black people, or Jews or Gays. Don’t invite them to dinner. Tell your daughter not to date them. But you may not ask government to pass rules that discriminate against them or that prevent them from  participating as equals in the political system or civil society.

With that, I will conclude this admittedly very superficial description of the 14th Amendment. I’m happy to answer questions!


  1. Longer? Yes, a little bit.
    Skip it? DEFINITELY NOT!! It’s the best discussion of the 14th. . .no, make that the 13th, 14th, 15th Amendments you’ll ever read.
    And thank you for posting this, Dr. Kennedy.

  2. With regard to the former President, your comment about SCOTUS finding a way to wriggle out of deciding to ban Trump from the ballot is most salient these days. As history has shown us, demagogues will pack courts, fudge laws and perform outrageous acts in order to stay in power. Donald Trump is a deteriorating psychopath, but he stacked the court … as did his Republican predecessors … with fellow ideologues. Add Thomas and Alito to the three bent Justices that Trump and the Republicans put on the court and you have NO guardrail against somebody violating the letter – never mind the spirit – of the law for their own personal benefit.

    At age 81.5, I managed to shoot 78 on the golf course last November. I hope to break my “age” again. Then, after novel #10 gets published this year, I’ll be ready to pull the plug. I want my last days to be in the arms of my loving spouse and watching the few good movies that come out. Hey. Somehow one must find a silver lining.

  3. Even the Democratic court appointees were making statements indicating they’d be siding against Colorado. A signal that our corrupt courts don’t care about politics: at least some of the courts have shown backbone and fined Trump nearly $500 million. A Go-Fund-Me account has been established to raise money for his fines. People have lost their bloody minds!

    It’s the same mindset as those politicians crying about the death of Navalny when he was a NeoNazi CIA asset looking to start a color revolution in Russia. He only polled around 2%, so he was unpopular in Russia. However, he had a loyal following among the corrupt political class and their media outlets.

    The people in this world are very disappointing. Any form of critical thinking is absent from the populace because they are brainwashed not to be thinking men and women.

  4. I think SCOTUS will dodge the question of Trump on the ballot by weaseling out of an immediate decision. It says “hold office” and they will announce that he is just at this point “running for office”. Worst case scenario, Trump wins election and now the supreme court will create a constitutional crisis when they have to refuse to swear him in. But like LBJ isolated on an airplane, Trump will get someone to swear him in and he will be president.

    I know this sounds as ludicrous as the other reasons Sheila gave as to why the 14th amendment will apply, but if you’re in full weasel mode, this argument is at least technically correct.

  5. Your posts are always thought provoking and often educational, Dr. Sheila, but this one takes the cake. One read-through wasn’t enough, and I will be revisiting it. Many thanks for sharing this with us all!

  6. I’m reading “Prequel” by Rachel Meadow, which is a wonderful history of Fascism and how they got their playbook directly from our legal system. I highly recommend it to all. Sheila, you are the voice of reason that we all need. I look forward to your letters every day

  7. Makes me proud that this wonderful message was delivered in my hometown by one of my favorite thinkers!

  8. Thank you Sheila for posting this thorough explanation of the 14th Amendment.

    Todd – where on earth did you acquire the info you wrote about Navalny being a neo-nazi CIA asset? And are you a Putin sympathizer?

  9. There are many fields of human knowledge that are so challenging in the shear scope of our collectively gathered knowledge at this point in the history of our species that they can take most of a lifetime to learn.

    As my focus from early childhood has been on how the Universe works I really am woefully lacking in how humans work cognitively and how culture and law organizes the brain software of large numbers of individuals into a productive society.

    Sheila has been my guide for decades through the maze of our laws as a force for such organization.

    It all makes me wonder if we aren’t suffering from such of an explosion in collective knowledge that too many individuals have been left too far behind in the minimum required school and experience educational process.

  10. The Constitution also allows the states to set the rules for elections. What we are facing is the prospect of the wildest election in history. If the court allows Colorado and Maine to take tRump off the ballot, we can be sure that several red states will bar Biden. Due to the inequality built into the Electoral College, tfg would be 47.

  11. Thank you Sheila, for another deeply thought provoking dive into Our Constitution. You are an amazing educator.

  12. Section 3 has never been used with a prerequisite of adjudication. Tens of thousands of rebels were subjects of its applications on a prima facie basis. State governors applied and there was no recourse or appeal. Colorado requesting SCOTUS review was an unnecessary over lawyered approach. Trump can be banned by any state ballot for any reason. States and states alone have jurisdiction over presidential electors selection. Colorado needed no clarification. Lastly, the current tendency by the legal community to relegate the 14th and 15th amendment to categorical obsolescence. Merely because there are no side paths to enforcement. Thus, no work for lawyers. The only expiration date in the Constitution is the forbidding of laws regulating the slave trade being passed by Congress until 1808. Trump committed a prima facie act of insurrection. State jurisdiction over presidential elections is absolute. Bush v. Gore as an over reach from which SCOTUS should retreat. Congress kicked the can. But should been left to step to its responsibility in January, 2001.

  13. Sheila. Please comment on Joe Castelo’s post. Can any state legislature ban any candidate from being listed on the ballot? That seems nonsensical to me. Maybe that is not what he meant?

  14. The right is always complaining that the federal government is too powerful and over rules state laws until it’s something they want like 45 on the ballot in CO. Just like the bible, they pick and chose the areas they agree with and then demonize the parts they disagree with. Their hypocrisy is exhausting.

  15. Sharon @ 12:19. This is not an area of the law with which I am familiar, but this seems like an overgeneralization to me; certainly, removal of someone from a ballot could not be arbitrary or capricious–it would have to be consistent with the election law of the state, and not a violation of either the state or federal constitution.

  16. Excellent explication of this important provision of our Constitution, worthy of publication and distribution as a civics primer for school students and others in need of instruction or a reminder. Your legal education beautifully informs your teaching, Professor! Well-done, counsel! Judge Sarah.

  17. Ian, Putin tried to destabilize our government when he bombarded social media in 2016 in critical states with anti-Hillary lies that favored Trump.

    Of course the US tries to de-stabilize tyrannical dictators. We shouldn’t rest until liberal democratic freedom is the global norm.

  18. Depending on the Supreme Court’s decision regarding removing trump from the Colorado State ballot looks like that Court considers itself above the law. If they don’t let it stand or send it to Congress to vote on, then they are engaging in some of that “Umwege Jurisdicial procedures” that Maddow explained in her book “Prequel”. They start with the conclusion they want and then manipulate via legalese to get to that conclusion. Regular citizens are left scratching their heads and demoralized by that kind of gaslighting. Hoping that won’t happen but thinking they will. The effect could be similar to congress kicking the can during Trumps impeachment trials.
    Thanks, Sheila, for your brave clarification of our laws; reading your blogs is helpful to strengthen our rights.

  19. Justice KBJ observed that at the time of the 14th Amendment, citizens did not vote for president, or even for the electors who would vote for president. Rather, the electors were chosen by state legislatures. She suggested that the amendment’s specific reference to electors might have been seen as sufficient protection against an insurrectionist becoming president. She might be right, although I’d sure like to see Trump booted off the ballot.

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