On the 150th Birthday of the 14th Amendment, Its Future Hangs in the Balance

U.S. Representative John Armor Bingham, principal drafter of the 14th Amendment to the Constitution. Photo: Mathew Brady

We were told the big reality-TV-style announcement of the president’s second Supreme Court nominee was timed to occur before his seven-day trip to Europe. After all, if his choice is to be confirmed before the October term of the Court (not to mention the midterm elections), there’s no time to spare in making the case for him or her.

So it’s probably a coincidence that the likely occupant of this key position on a closely divided Court is being named on the 150th anniversary of the ratification of the 14th Amendment, that most radically worded of the Reconstruction Amendments, which has inspired both progressives and conservatives over the years with broad visions of the Republic’s ideals. The Amendment itself was intended by its post–Civil War radical Republican sponsors to stop the efforts by the former Confederate states to nullify emancipation via the so-called Black Codes that imposed terrible political and economic restrictions on former slaves. Its broad language promoting “liberty” and “equal protection of the laws” made it an instantly controversial and regularly reinterpreted part of the Constitution, as Jeffrey Rosen explains:

[T]he Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the [Supreme] Court, and for nearly a century it protected economic liberty alone.

The constitutional law of the second half of the 20th century was heavily affected by the revival of the 14th Amendment as a guarantor — against the states as well as the federal government — of equality and individual rights, and the abandonment of the idea that it prohibited social legislation in the name of inviolable property rights. The Amendment was central to judicial projects ranging from school desegregation to the establishment of a federal constitutional right to contraception and abortion, and most recently, to marriage equality and other rights for same-sex citizens. But conservatives have learned to adapt the 14th Amendment to their own purposes, such as restrictions on race-conscious affirmative action and voting-rights policies. There are some conservative legal thinkers who want to bring back the idea that the 14th Amendment enshrines permanent private property rights that no legislature can disturb, and others who would turn Roe v. Wade on its head by recognizing fetal personhood as protected by the Amendment.

All this flux in interpreting the 14th Amendment could be vitally affected by the ideological balance in the Supreme Court as it is shaped by Donald Trump. As Rosen notes, Anthony Kennedy embraced both liberal and conservative notions about the Amendment:

 Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.

In naming that replacement, it’s unlikely Trump will have in mind any such long-range impact on constitutional law: He is clearly focused on redeeming a campaign promise to a crucial constituency that mostly just wants SCOTUS to retreat from abortion and gay rights and instead protect the “religious liberties” of conservative Christians. But with two SCOTUS picks already (as many as any president since Reagan), he’s well on his way to placing a heavy hand on the supreme law of the land.