How the 14th Amendment Is Democracy’s Leg-Shaped Lamp

The 14th Amendment to the Constitution has been treated like the leg-shaped lamp in A Christmas Story, if the leg-shaped lamp were a motion-sensitive high-intensity laser that would vaporize you if you got too close. Certainly, it has its uses. If it hadn’t had its uses, conservatives would not have been so dedicated to dodging its requirements, minimizing its importance, and otherwise stashing it in the old constitutional attic in the hopes that nobody notices it still works if you turn it on. As my friend, the constitutional scholar Garrett Epps put it in Democracy Reborn, his exemplary history of the 14th:

By the first decade of the Twentieth Century, white Southerners had found dozens of ways to lock black Southerners, and their white allies out of political power. They had begun to rebuild the “intellectual blockade,” enforcing ideological unity on the region[…]Meanwhile, the federal courts, which were to be the backstop for Congress, had refused even to try and make the states live by Republican rules.

Section 1: 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.

Section 2: Representatives 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.

Section 3: 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.

Section 4: The 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.

Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

It’s indeed a whopper, passed in the wake of the Civil War and aimed at eliminating all of the proximate and long-standing causes of that war, particularly slavery and white supremacy. To wit: That is some serious constitutionalizing there. No wonder it scared the galluses off of hayshaker racist politicians and Gilded Age plutocrats the way it did. No wonder they rigged things so that the 14th didn’t mean what its authors plainly meant.

But damned if the 14th didn’t fight back. It was central to the winning arguments in important civil rights and civil liberties cases, including Brown v. Board of Education and Roe v. Wade. Its guarantees of due process have been central to every decision concerning a right to privacy, even though there is no specific right to privacy mentioned in the Constitution, which drives conservatives batty.

But recently other parts of the 14th have been activated. All those clauses referring to “rebellion” and “insurrection” began to blink red on January 6, 2021. And as Michael Meltsner, of Northeastern University’s school of law, writes inThe American Prospect, Section 2 pretty plainly empowers the federal government to knuckle states that engage in voter suppression:

Though few even know of its existence, Section 2 of the 14th Amendment is perfectly clear. It provides that, if any state abridges the franchise of males over 21, “except for participation in rebellion, or other crime,” that state loses the equivalent population numbers counted to determine representatives in Congress. Subsequent amendments to the Constitution erased the gender and age limitations, but the core meaning of Section 2 remains intact. The irony behind the indifference is extreme. When we think of the 14th Amendment, the focus is almost always on the ambiguous due process and equal protection clauses asserted daily in the courts. But in 1868, the members of the then-dominant Republican Party were far more concerned that the 13th Amendment, by abolishing slavery, had excised the infamous three-fifths clause of the original document. If no further action was taken, former slaves who were still blocked from voting by state policies and multiple forms of intimidation, would nevertheless be counted in the population of the rebel states, threatening to increase their representation in Congress. The result was a provision that explicitly applies to almost any means of disenfranchisement, not just racial.

As Meltsner observes, there is currently a case, Citizens for Constitutional Integrity v. Census Bureau, that seeks to rectify what he calls “155 years of indifference.”

It is alleged in the suit that Wisconsin’s strict photo ID law, which former GOP staffers have acknowledged was intended to disenfranchise Democrats, results in abridging the votes of some 300,000 voters, approximately 9 percent of the state’s registrants. If Section 2 were applied as intended, Pettinato argues that Wisconsin would lose a congressional district due to this disenfranchisement, a seat that New York, for example, would gain.

This long-shot suit, of course, would be a valuable weapon in cracking the death grip on democracy that unfettered gerrymandering has placed upon it. Which is probably why, sooner or later, some judge is going to see its merits, get righteously terrified, and turn it down while hiding under his bed.

The same goes to the more celebrated references to Section 3, which clearly states that any elected official hallowed by oath to defend the Constitution who then attempts to obstruct or overthrow constitutional government doesn’t get a second chance at federal office. As Rep. Jamie Raskin explained to The New York Times, “We have to dust it off.“

Not Being Able To Run For Office is a pretty light punishment for attempting a coup, especially relative to what happens to leaders of unsuccessful coups elsewhere. As the forgotten hero of the original drama, Rep. John Bingham, who has been called the Madison of the “Second Founding,” the father of the 14th Amendment, made exactly that point at the time of the congressional debate, saying that former elected federal officials who had gone over to the Confederacy, should consider themselves lucky that they only would be disqualified from office. They were lucky not to be hanged.

I could be wrong, but I don’t think any of our constitutional institutions have the guts to use the 14th Amendment the way John Bingham and his colleagues intended. The 14th Amendment has always been scary because it calls every bluff in American politics from the Declaration of Independence forward. It demands aggressive engagement not only by elected politicians, but also by the people who elected them. Far better to leave it up there in the attic, where the children can’t find it and hurt themselves.

Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.