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The Fourteenth Amendment Turns 155 - What Have We Learned?

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.

United States Constitution, Amendment Fourteen, Section 1

John Bingham wrote this as an opening act to the Fourteenth Amendment. There are five sections, however this first section resonates as it stands for the principle that the Bill of Rights should be incorporated to the states. The Fourteenth Amendment was ratified 155 years ago this month (arguably ratified on July 9, 1868 but finally certified on July 28, 1868). The purpose of section one was to limit state powers and protect civil rights, particularly for formerly enslaved people as they were most at risk from overreaching state legislatures. It sought to protect the vulnerable, the other, the minority, and the overshadowed from those who would wield power over them with oppressive state laws.

One hundred years ago, the Supreme Court of the United States reversed several criminal convictions of teachers for the crime of, well, teaching. Certain state legislatures determined that there was a serious danger in “foreigners” raising their children with a language other than English because if they spoke another language, they would think in that language and if they thought in that language they would harbor, “ideas and sentiments foreign to the best interests of this country.” So, these states passed laws requiring that all education was to be conducted in English. Then some pesky teachers taught children how to read in another language so - of course - they had to be prosecuted as criminals.

The Supreme Court relied on the Fourteenth Amendment to reverse the conviction of Robert Meyer, a Nebraska teacher who had the audacity to teach children to read in German declaring,

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.

Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923) (internal citations omitted).

That was the Court 100 years ago. Let's see how this idea of liberty is faring.

In the last year or so, the Court has continued to muse about the Fourteenth Amendment and ideas of liberty. Interpreting the First Amendment (incorporated to the states via the Fourteenth Amendment), it cracked down on a school district in the state of Washington when it sought to prohibit public prayer on school property. A football coach conducted not just his own prayer of gratitude after every game in the middle of the field, but also included his players kneeling, bowing their heads, and saying a prayer at a public school event. The school district determined that this display violated the Establishment Clause. So, in stepped the Supreme Court against this oppressive school district to declare that the prohibition against endorsed religion in the Establishment Clause could not hold a candle to one person's individual expression of the Free Exercise Clause (which happened to coerce his players to participate - but, details). The Court ruled that the state did not have a legitimate interest in stopping the prayers at the school in Kennedy v. Bremerton Sch. Dist.,142 S. Ct. 2407 (2022).

Continuing its quest for freedom and liberty in the Constitutional sense, following the most devastating year in the United States for gun-related deaths in which nearly 49,000 people died because of homicide or suicide by firearm, the Court determined that states really had limited legitimate interests in restricting handguns. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Court ruled that the Second Amendment, incorporated to the states through the Fourteenth Amendment, establishes the right of "ordinary, law-abiding citizens" to carry a handgun for self-defense outside the home.

The majority was so emphatic in Kennedy v. Bremerton Sch. Dist. and in New York State Rifle & Pistol Ass'n, Inc. v. Bruen that it came as a surprise (not really) when that same court averred that – ya know – when it comes right down to it - the concept of “liberty” in relation to due process under the Fourteenth Amendment is just amorphous anyway and no one really knows what it means. So - it decided just to abandon bodily integrity for women in favor of the state of Mississippi’s “legitimate state interest” in protecting the “lives of the unborn” by essentially banning abortion in Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022). (Note: the Fourteenth Amendment starts out by identifying who is a citizen - “all persons born or naturalized in the United States…” not “all fetuses conceived in utero”. A bit of a head scratcher that Mississippi’s protection of a non-citizen over a citizen establishes a legitimate state interest. It's a trip - the entire opinion is an exemplary exercise in revisionist history.)

155 years ago, this nation added one of its most brilliant codicils to the United States Constitution. 100 years ago, the Court spoke of the notion of liberty embodied therein – that it was not just freedom from bodily restraint but also a certain autonomy to engage in an orderly pursuit of happiness without despotic control by a meddling government feigning to protect an arbitrary public interest though its police powers. Today the Court finds that state legislatures overstep when they seek to protect the public from the very real threat of gun violence; they have no legitimate concern about the perception of imposing one religion over another – or over no religion at all – when their schools are stages for shows of prayer. That would impose too harsh a burden on individual liberty. Yet, when it comes to the right to contract with a medical professional, plan a family in whatever form that takes, including abortion, somehow the Court finds that the state has unlimited power to restrict behavior leaving no liberty left for individuals.

Congress understood that the Civil War could not end until after the Reconstruction Amendments became part of the United States Constitution. Sandwiched between abolishing slavery and ensuring the right to vote for Black men, they gave us the gift of the Fourteenth Amendment prohibiting states from depriving people of equal protection and due process thereby guaranteeing life and liberty. The original intent was to be a shield, not a sword, defending the vulnerable from overzealous, ideological state legislatures. 155 years later and it's still a work in progress.

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