Hello and welcome back to the Civic Flame, a podcast where we talk about the US Constitution
and how it is and is not working today. IÕm your host, Amber Vayo, a professor of law and policy
at Worcester State University, and this week, weÕre going to get ourselves into a heck of a
conversation.
This week, weÕre going to be looking at the 14th Amendment.
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00:00:55 The Fourteenth Amendment is a big deal
What you have to know about the 14th Amendment is that it was so contentious, it almost caused
a second civil war. There are a few podcasts that cover this. Bound by Oath has several episodes
here, NPRÕs Throughline does a good one, and there are a bunch more. Why? Because the 14th
Amendment fundamentally redefine what it means to be American and what the relationship
between the states and federal government should be are.
00:01:35 Section 1 of the 14th Amendment and Birthright Citizenship
ÒAll 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.Ó
This is where we get birthright citizenship. There was a famous Court case called Scott v
Sanford, commonly known as the Dred Scott case. Through this case, an enslaved man had lived
and worked in the free territories for a number of years. Upon returning to Missouri, he went to
court to say that because he lived in a free state, he should have his freedom.
The US Supreme Court said otherwise. Some say Justice Taney made his decision to stop the
civil war by putting to bed the legal question of Black citizenship. At this time, there were cases
where enslaved people were suing for their freedom, some being successful.
Taney didnÕt like that because he was a white supremacist. So, his said in Dredd Scott that Black
people could never be citizens. This resulted in some hilarious things like Massachusetts giving
out its own passports to Black citizens because the federal government would not. And some not
hilarious things like the US Civil War.
00:04:00 Birthright Citizenship and US v Wong Kim Ark
So, in the aftermath of the Civil War, the federal government wants to rectify that by clarifying
that everyone born or naturalized in the US is a citizen of the US AND the state where they
reside.
Early on people asked whether or not the birthright citizenship clause meant everyone of whether
it was only for formerly enslaved folks. In the 1897 case US v Wong Kim Ark, the Supreme Court
said the legal doctrine of jus soli is the controlling law, meaning that children born in the country
are citizens of the country. And in 1897, that was that. Or so we thought. The Supreme Court is
currently re-reviewing this and trying to change the parameters of birthright citizenship.
00:06:22 Privileges and Immunities were supposed to be a big deal
The next part of the 14th Amendment is the load bearing part.
ÒNo 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.Ó
So, Bound By Oath has an episode called Òall but redactedÓ about how the privileges and
immunities clause was basically kicked out of the Constitution in the Slaughterhouse cases. In
the reasoning of the Slaughterhouse cases, the Court said that privileges and immunities only
applies to the federal government. Now, this is problematic for multiple reasons. One, as you
know if youÕve been a long time listener, there already is a privileges and immunities clause in
the US Constitution that has to do with the federal government. So, even people in the 1800s
were like, Òwhy would it mean the federal government when thatÕs already in there? Of course it
means the states.Ó But because we didnÕt punish the Confederacy enough, there were people on
the Court who absolutely did not want any more discussion about Black rights and the rights of
the formerly enslaved. They wanted Òhome ruleÓ and in this case, home rule was the rule that
you could discriminate against Black people.
See, privileges and immunities at the federal level says you canÕt discriminate against someone
based on state of origin. The part in the 14th Amendment, paired with the notion that you are a
citizen of the federal government and your state, was supposed to say states canÕt discriminate
against their citizens. Imagine what the history of civil rights would have looked like if right
from the get-go it was clear that states could not discriminate against their own citizens. But,
thanks to a bunch of racists wankers in the 1800s, and for some reason, every Court after, the US
was just like, Ònah, we donÕt want that, go ahead and discriminate.Ó
So, there goes privileges and immunities.
00:09:22 Due Process and Equal Protection are for persons not just citizens
It is worth noting that privileges and immunities is relegated to citizens. Due process and equal
protection of the law refer to all persons, citizens or not.
This due process clause is used to do what we call incorporate the Bill of Rights (that first ten
amendments) to the states. According to the Supreme Court in 1833, the Bill of Rights only
applied to the federal government. What the 14th Amendment did was incorporateÑor work
togetherÑthe Bill of Rights and the state laws. This is to establish an equal protection under the
law.
00:12:00 The 14th Amendment and the Doctrine of Selective Incorporation
Equal protection sets a floor of rights across all the states that they cannot fall below. Due
process tends to be how we see that working. You get a lot of cases in the 1960s especially that
deal with this in terms of rights of the criminally accusedÑwarrants with Mapp v Ohio, public
defenders with Gideon v wainwright, and protections from self-incrimination with Miranda v AZ.
00:14:00 Right to an attorney and civil Gideon
Look, you can teach entire semester on each section of this 14th Amendment, and to me, it is the
most interesting Amendment in the Constitution. So, I encourage you to look it up and listen to
other podcasts about it.
00:14:12 Section 2 of the 14th Amendment and representation
Section two says, ÒRepresentatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each State, excluding Indians
not taxed. But when the right to vote at any election for the choice of electors for President and
Vice-President of the United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male citizens shall bear to
the whole number of male citizens twenty-one years of age in such State.Ó
Section 2 overrules that 3/5 Compromise which said Black people only counted as 3/5 of a
person for voting purposes. The 14th Amendment makes clear that everyone is counted as a
whole person. The section also curtails voting rights for anyone who has committed rebellion or
other crimes.
00:16:40 Section 3 of the 14th Amendment and the Insurrection Clause
Section Three says ÒNo 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.Ó
00:19:33 WeÕre in a legal civil war
Section three is something that came up during the last election about what happens in the case
of insurrection. This is of course directly speaking to the US Civil War, but has to deal with any
future political violence, conflict, or insurrection.
00:21:00 Section 4 of the 14th Amendment and refusal to pay the confederate traitors
Section 4 is fun, ÒThe 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.Ó Basically saying that weÕre not paying for
insurrectionists.
00:24:50 Section 5 of the 14th Amendment and reaffirming Legislative Supremacy
And Section 5 reaffirms Congress and Legislative Supremacy in our Constitutional system by
says, ÒThe Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.Ó This is that space where Congress gets the ability to write things like the Voting
Rights Act and the Civil Rights Act.
Ultimately, this is what ends up moving a lot of the good ideas of the 14th Amendment into
actual practice. For instance, Brown v Board the 1954 case that ended legal segregation of K-12
public schools in the segregated South didnÕt do much in practice until the Civil Rights Act of
1964 added benefits (money) and penalties (also money) to press for real desegregation and
integration.
So, all in all, the 14th Amendment is a biggie, even though we took a pretty serious crash course
in it (although PBS Crash Course Government does a pretty solid and quick run down of the 14th
Amendment, too).
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00:26:00 Season one finale!
Well, thatÕs a wrap on the Civic Flame season one! Thank you to all of our listeners. WeÕll be
posting campfire updates as they come forward over the spring and summer and think about
what kind of content we need to be putting out in the future.
Until then, like, follow, and share this podcast. Follow us on Instagram and BlueSky at Dr Fun
Sponge. And as always, keep the civic flame burning bright!
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00:23:00 Thank you!
The civic flame is a dr fun sponge production with sound producer Matt Munyon and writer
Amber Vayo. Thanks for listening.