Rethinking the 14th Amendment
Proposals to re-examine the 14th Amendment are being greeted with something verging on panic. I’m having a little trouble with the logic here. Aren’t we told the Constitution is a “living document” whose meaning changes with the times? Why is it okay to debate whether the Second Amendment might need re-thinking, but not the 14th? Why is it okay to dismiss the people who insist on a literal reading of the Constitution and then get all literal about what Congress meant when they drafted this amendment? As for the fact the amendment has been law for 150 years, well, the Supreme Court has overturned laws a lot older than that. After all, banning abortion was considered wholly Constitutional and a prerogative of the states for over 180 years, and heterosexual marriage is teetering after over 220 years.
Frankly, the whole amendment needs an overhaul. It’s a mishmash of vague guarantees of rights (mostly not honored if they interfere with anything the Government wants to do) coupled with sanctions against rebellion, purely legislative matters that don’t belong in the Constitution at all. After all, it’s not like we have wars of secession every second Tuesday. The amendment is a complete mess from a logical standpoint, and interpreted so selectively and arbitrarily as to be meaningless. “Equal protection of the laws?” How does that square with a tax code full of special interest loopholes? Or let’s say I wound a burglar in my home. He’s tried for burglary and I’m tried for assault because I allegedly used excessive force. He’ll get a free lawyer. I won’t. Equal protection? Oh, but that’s because of the economic disparity between the burglar and me. So let’s say the burglar sues me, backed by the ACLU and a law firm with lots of money. I win. Can I recover my costs from my much more affluent opponents? Nope. No worries about economic disparity there.
In fact, regardless of how loopy the burglar’s case might be, he can bankrupt me with legal expenses, and I have no recourse. Can I recover damages from a criminal who takes or damages my property, or creates other expenses for me? Virtually impossible. What happened to the protection against being deprived of property without due process? Can the criminal sue me for injuries received during the commission of a crime? Yes he can. So much for “Equal protection of the laws.” Can you possibly understand how the idea that criminals have rights but ordinary citizens do not have corresponding rights might just fuel the “irrational” anger from the Right?
The 14th Amendment’s protection against loss of property without due process is a complete farce when it comes to Government regulation. You can be saddled with unlimited regulations requiring unlimited expenses with no recourse whatsoever. Your use of your property can be so tightly circumscribed that its value to you effectively disappears, but there is no legal remedy. Even the rest of the Constitution bows before the mighty 14th. Free speech? Not if someone else considers it harassment.
The clause prohibiting abridgment of “privileges and immunities” could be a very powerful protection for individual liberty in the right hands. Or it could be used to create all kinds of new “rights” that everyone else will have to pay for (one European group has recently declared Internet access a basic human right). And when gun owners attempted to use the “privileges and immunities” clause as an argument in the recent challenge to D.C.’s gun prohibition, the Supreme Court simply declared they would ignore it.
The 14th Amendment is applied in a completely ad hoc manner. It protects and creates rights for whatever groups happen to have the favor of Congress or the Supreme Court, but routine, systemic violations of the 14th Amendment against everyone else go completely ignored. The reason for panic over the idea of modifying the 14th amendment is partly that opponents know perfectly well that a large number of Americans view the 14th Amendment as a threat to their liberties rather than a protection. And as for anything that might actually severely impede the powers of the state, like requiring a tax code that treats all taxpayers equally, or a protection of rights and immunities with real teeth in it that enables courts to throw out laws right and left because they’re intrusive, unreasonable, or just plain stupid, the 14th Amendment is pure fiction.