Federal Courts and Nominations

OP-ED: The Fourteenth Amendment Turns 150 Today: Will Trump’s New Nominee Follow Its Text and History?

As the Fourteenth Amendment turns 150 years old today, President Donald Trump is going to announce his nominee to replace Justice Anthony Kennedy on the Supreme Court. The legacy of this Amendment, its purpose, and its continuing, urgent relevance show exactly how high the stakes for this nominee and the future of the Supreme Court.

One hundred and fifty years ago, in the wake of a bloody civil war fought over slavery, the Fourteenth Amendment fundamentally altered our Constitution’s protections of individual rights, adding to our nation’s charter sweeping guarantees of liberty and equality protecting all persons from abuse of power by state governments.  Against the backdrop of suppression of fundamental rights in the South—including the right to bodily integrity, right to marry, and many others that are not specifically listed elsewhere in the Constitution—the Framers drew on the principles of the Declaration of Independence to broadly guarantee the protection of fundamental rights.

The Fourteenth Amendment made equality for all persons a constitutional command, forbidding government subordination of disfavored persons.  The Framers declared that the Fourteenth Amendment would be “the gem of the Constitution,” because “it is the Declaration of Independence placed immutably and forever in our Constitution.” In the process, the Fourteenth Amendment perfected the Declaration, extending its protection not only to men, but to all persons.  Our Reconstruction Framers erased the stain of slavery from the Constitution and created a new republic built on the promise of equal rights—though we of course still struggle to make that promise a reality for all.

Of particular resonance today, the Fourteenth Amendment was also written and ratified against the backdrop of anti-immigrant sentiment, much of it directed against Chinese immigrants in the western United States.  But the Framers refused to indulge these prejudices and wrote the Amendment to safeguard the rights of immigrants.  The Fourteenth Amendment guarantees birthright citizenship to all persons born in the United States—no matter where they or their parents are from.  Speaking directly to a hot button issue currently litigated in the federal courts, it requires the federal government, in carrying out the constitutionally-required census, to count all persons—citizens and immigrants alike—to ensure equal representation for all.  It safeguards the rights of all persons, not merely citizens.

The Fourteenth Amendment—like the other Reconstruction Amendments that together represent our nation’s “Second Founding”—gives to Congress broad sweeping powers to guarantee basic rights and end discrimination.  This explicit grant of power provides the constitutional foundation for many of our most important civil rights laws.

As the New York Times recently observed, “[i]nterpreting the 14th Amendment in light of its history and original meaning — a method the conservative justices swear by in most other cases — should lead the Supreme Court to wield it much more aggressively than it has.”   But instead, the freedom and equality that the Fourteenth Amendment and other Reconstruction Amendments promise are at risk today.

In cases like Shelby County v. Holder and others, the Supreme Court’s conservative majority has already whittled down Congress’s enforcement power, ignoring, as Justice Ruth Bader Ginsburg put it, the Framers’ aim “to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the State.”  Justice Kennedy’s landmark 5-4 Fourteenth Amendment rulings protecting substantive fundamental rights, including the right to marry and the right to choose abortion, and striking down government discrimination against gay men and lesbians, survive only by a thread.

President Donald Trump has insisted that he wants to appoint conservative originalists to the Court.  But these jurists all too often practice a selective form of originalism that exalts the features they like in the 18th-century Constitution, while ignoring the subsequent Amendments, like the Fourteenth Amendment, that ensure freedom for all and put an end to government-sponsored discrimination.

When exercising its role of advice and consent in coming weeks, the Senate must ensure that President Trump’s nominee is willing to respect the whole Constitution, not just the parts of our national charter that fit the President’s agenda. It would be a betrayal of our most sacred values, and perhaps our most majestic constitutional text, to rubber stamp a nominee who would fail to recognize the progress written across our Constitution that has made our nation more equal, more inclusive, and more free.

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