Tag Archives: 14th Amendment

The Equal Protection Of The Laws

From day one, the Trump administration has made its disregard for the Equal Protection Clause of the 14th Amendment and its deep-seated racism too clear to ignore. Just a few examples will suffice: the recently-announced intent to limit the number of refugees the country will accept to 7500, while giving priority to White South Africans; directing ICE to stop and harass people based on nothing but skin color; the constant and ferocious attacks on DEI; the ongoing efforts to disenfranchise Black voters…the list goes on. And on. 

The best response to MAGA protests that the racist label is unfair was in a recent headline from The Hill. It read “If MAGA doesn’t want to be labeled racist, it should stop elevating racists.”

Memo to President Trump’s backers: If you want people to stop calling you racist, stop saying and doing racist things. And stop excusing racist posts and rants by leading voices in the MAGA media.

When Nick Fuentes and Tucker Carlson recently ranked among the top five on Spotify’s list of top trending podcasts, it screamed out that racism and antisemitism are not a problem for their MAGA-world fan base.

None of this, of course, surprises those of us who have understood since 2016 where Trump’s support lies. MAGA’s racism has been too glaringly obvious to ignore. But more recently, it seems that MAGA’s animus goes beyond race, gender and religion; the administration is evidently determined to undermine the very concept of Equal Protection–the belief that all citizens are entitled to the equal application of the laws. (For that matter, Trump clearly wants the effective repeal of the entire 14th Amendment–beginning with birthright citizenship, but definitely not ending there.)

The Washington Post has reported on the administration’s most recent assault on the very concept of Equal Protection of the Laws. The administration now wants to deny people who hold different political beliefs a benefit to which they are legally entitled.

Employees of nonprofit organizations that work with undocumented immigrants, provide gender transition care for minors or engage in public protests will have a hard time getting their federal student loans forgiven under regulations advanced Thursday by the Education Department.

The 185-page rule revises eligibility requirements for Public Service Loan Forgiveness, which cancels the education debt of government and nonprofit employees after 10 years of service and 120 monthly loan payments. It will allow the education secretary to disqualify employers — not individuals — who engage in activities the department deems to have a “substantial illegal purpose” on or after July 1 — when the rule takes effect

Current law makes those holding student loans eligible for a federal program offering loan forgiveness if they focus on areas that serve the public good. The law has defined those categories as including careers in education, public health or public interest law. The proposed rule would dramatically change a program that has offered debt relief “to more than 1 million student loan borrowers across more than 20 sectors of the economy.”

The proposed rule was prompted by a Trump Executive Order that designated disfavored nonprofits that should no longer be eligible for government benefits. 

A partial list of those the administration wants to deem ineligible is telling:

Aiding and abetting violations of federal immigration laws.
Supporting terrorism or engaging in violence for the purpose of obstructing or influencing federal government policy.
Engaging in the chemical and surgical castration or mutilation of children in violation of federal or state law.
Engaging in a pattern of aiding and abetting illegal discrimination.

The subjectivity is obvious–and the point. We’ve seen how ICE defines the obstruction of government “policy.” We’ve seen what the administration considers “aiding and abetting” (i.e. offering opinions that are protected free speech). The administration defines medical treatment of transgender children to be “mutilation.”

And of course, the administration takes the position that any effort to level the playing field for minorities amounts to “illegal discrimination” against White Christians.

You can almost hear the mob boss. “Want your student loan forgiven, so you can afford a house or a new car? It would be a shame if all those payments you’ve already made didn’t count…maybe you should change jobs.” 

I doubt that Trump can spell, pronounce or define “arbitrary and capricious” but those terms describe what would result from his efforts to ignore the clear meaning of the 14th Amendment–and for that matter, the rest of the Bill of Rights.  Citizens would no longer have an automatic right to equal treatment–their access to government programs would depend upon the degree to which they are willing to bend the knee.

Like it works in a monarchy…..
 

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Good-By To The Constitution

As some of you may have noticed, I’ve been providing “Constitutional Minutes” to Women4Change; for the past few weeks, I’ve been sending a brief description of a constitutional provision, and an explanation of how Trump is violating it, to the organization for posting on its webpage. It occurs to me that I should share a couple of those explanations here, in support of my assertion that we are in the midst of a grand-daddy of a Constitutional crisis.

Let’s look, for example, at Trump’s attack on birthright citizenship.

Section One of the 14th Amendment reads as follows: 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.

Trump’s Executive Order, in pertinent part, reads: It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The law is clear. A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Or let’s look at Elon Musk’s rampage through the federal government.

In our constitutional system, power comes from We the People. Only officials selected through constitutional methods may wield power in our name. Past Supreme Court cases have make it clear that individuals who serve in “continuing” positions and who exercise “significant authority” on behalf of the United States must be appointed consistent with Article II’s  Appointments Clause. That clause sets forth two methods to appoint “officers of the United States.” “Principal” officers must be nominated by the president and are subject to the advice and consent of the Senate.

With respect to “inferior officers,” the Constitution allows Congress to give the appointment power to the president, to the head of a department, or to the courts. However, inferior officers must be subject to the supervision of someone other than the president. Those who report directly to the president are by definition principal officers.

The Appointments Clause subjects individuals wielding significant authority — principal officers —   to Senate confirmation. Elon Musk is clearly wielding significant power (as evidenced by growing references to him as a “co-President.”) His activities through DOGE—a “department” that does not exist—are wreaking constant havoc with the operations of critical government agencies, threatening everything from FEMA’s responses to South Carolina’s fires to the timely delivery of Social Security checks.

There are at least two pending lawsuits alleging that Musk’s power cannot be squared with the Appointments Clause—that to exercise the authority he is exercising, he must be appointed as provided by the Constitution. (One such case, in Maryland, was filed by current and former federal employees and contractors; another, in Washington, D.C., was brought by a number of states.) The judge in the Maryland case said that he was “highly suspicious” of the administration’s (phony) explanation for Musk’s role. The judge in the Washington case has found that  Musk has “rapidly taken steps to fundamentally reshape the executive branch,” with no apparent “source of legal authority” and that his actions appear to describe “precisely the ‘executive abuses’ that the Appointments Clause seeks to prevent.”

Over the past few weeks, I’ve identified several other obvious and egregious violations of America’s founding charter. There are numerous lawsuits pending, and growing public anger, but there is no guarantee that Trump will obey the courts, and thus far, no indications that Congressional Republicans will locate their spines.

Meanwhile, Trump and Musk are busy destroying the federal government’s ability to operate domestically, and betraying our allies abroad.

As the saying goes, we aren’t in Kansas anymore….

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No Equal Rights For You!

In case you consider the concerns addressed in the book I promoted yesterday to be exaggerated, allow me to offer the following evidence that that the GOP is indeed waging war on women–that the Republican Party is working overtime to ensure that we females remain decidedly second-class.

The “Grand Old Party” is focused on denying us bodily autonomy, and in case we missed getting the message, has recently reinforced the message by refusing to extend the deadline for passing the Equal Rights Amendment.

The ERA passed Congress in 1972, having been first proposed in 1923. Constitutional amendments, under U.S. law, must be ratified by three-quarters of all state legislatures, meaning 38 states.

In 2020, Virginia became the 38th state to ratify the ERA, but it did so after the 1982 deadline to ratify the amendment had passed.

The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Sen. Ben Cardin (D-Md.) and Murkowski were the resolution’s lead co-sponsors.

Murkowski and Collins were the only Republicans to support the extension. The vote was 51 to 47 to invoke cloture on a motion to proceed, falling short of the 60 votes it it needed.

This would be a good time to reiterate my opposition to the filibuster as it is currently employed. In its current iteration, it bears little or no resemblance to the original rule.

A filibuster used to require a Senator to actually make a lengthy speech on the Senate floor–unlike today. In its current form, it operates to require government by super-majority, and it has become a weapon routinely employed by extremists to hold the country hostage.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster, and in 1975, the Senate again changed the rules, making it much, much easier to hold the Senate hostage.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes sixty votes to pass any legislation, and has brought normal government operation to a standstill.

Operating together, gerrymandering, the Electoral College and the current iteration of the filibuster have allowed a minority party to exercise unwarranted power and throw sand in the levers of government.

In this case, a majority of Senators voted to assure the equal rights of America’s female citizens–but that majority vote was blocked by the members of what I have come to call the “anti” party–anti-woman, anti-Black/Brown, anti-Gay, anti-“woke.”

Anti-modernity.

I still remember long-ago arguments with what were then fellow Republicans about the necessity or advisability of the Equal Rights Amendment. Those who opposed its passage tended to rely on the language of the 14th Amendment, arguing that women could achieve legal equality under that language, and that a separate amendment was unnecessary.

In the wake of the Dobbs decision, which upended fifty years of 14th Amendment jurisprudence, that argument no longer passes the smell test.

Passage of the Equal Rights Amendment would establish gender equality as a fundamental constitutional right–something that, thanks to Justice Alito, we now know the Constitution doesn’t explicitly guarantee.

It would also bring the United States into compliance with international standards for human rights. (Granted, those standards are widely disregarded, but the United Nations has recognized gender equality as a fundamental human right.)

It took a hundred years for women to win the right to vote–and we have now fought (thus far, unsuccessfully) for an Equal Rights Amendment for exactly that long– it has been proposed and supported by feminists for nearly a century. (A representative of the National Women’s Party, Alice Paul, was the person who first introduced the Equal Rights Amendment to Congress in 1923.)

Currently, an overwhelming majority of Americans (81%) support passage of the amendment. The White Christian Nationalist cult that now controls the Republican Party disagrees.( Actually, it disagrees with pretty much anything promising equality for non-whites, non-Christians or non-males…)

Congress will not reflect the desires of the majority of Americans–and women will not have equal rights– until and unless we reform the systems that have turned our country into a failed democracy: gerrymandering, the Electoral College, and the current iteration of the filibuster.

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Originalism And The Second Founding

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!

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Braun: Another Indiana Embarrassment

As if the election of a truly abysmal legislature, courtesy of gerrymandering , wasn’t bad enough, Indiana’s voters keep giving the state hugely embarrassing statewide officials. I have posted several times about Todd Rokita, Indiana’s widely-despised egomaniac Attorney General; currently, it’s intellectually and morally-challenged Senator Mike Braun who is reflecting negatively on Hoosiers.

The Washington Post was one of several media outlets reporting on Braun’s defense of “state’s rights” during the confirmation hearings for Judge Jackson.

Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
 
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.

 Heather Cox Richardson had a historically-grounded response to Braun’s assertion that the country would be “better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”  As Richardson reminds us, the whole point of the 14th Amendment was to “homogenize” the fundamental rights of American citizens. 

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states. 

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities. 

Richardson points out that it’s impossible to limit an evisceration of the Fourteenth Amendment to a single issue. If states are empowered to award or deny rights as they wish –if they are free of federal restraints on their ability to strip reproductive rights from women, for example–“the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.”

Voters need to realize that the GOP’s assault on fundamental rights goes well beyond efforts to overturn Roe. Tennessee Senator Marsha Blackburn has challenged  Griswold v. Connecticut, the decision that legalized contraception, and Texas Senator John Cornyn has attacked Obergefell, the decision recognizing same-sex marriage.

Braun and the other Neanderthals in the GOP would undoubtedly cheer such results. Most Americans, not so much. Richardson points out that they are “quite literally” making the same “states’ rights” argument used to justify enslaving people before the Civil War.”

More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Eviscerating the Fourteenth Amendment provision that prohibits states from withholding the “privileges and immunities” of U.S. citizenship from their citizens would invalidate the existing jurisprudence of Equal Protection, a jurisprudence that requires all states to respect the fundamental rights protected by the Bill of Rights–to “homogenize” them.

Richardson points out that Braun’s desired reversal of Loving v. Virginia would criminalize the marriages of both Judge Jackson and Justice Thomas in certain states.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

Braun is today’s version of  a mainstream Republican, and Richardson revisits a frequently-quoted paragraph written a decade ago by respected scholars Thomas Mann and Norm Ornstein, who concluded

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

So we’ve seen–and it has only gotten worse.

These days, as the Jackson hearings are painfully illustrating, Republicans have made both civil discourse and  basic, substantive governance virtually impossible.

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