On this day in 1868, the Fourteenth Amendment to the United States Constitution “was declared in effect.” Or so says the Times. But what does that mean? The Fourteenth Amendment was ratified on July 9th of 1868. So, does a Constitutional Amendment have to be “declared in effect” in order to be in effect? Alas, my books are thousands of miles away, so I can’t solve this problem myself. I need help.
Regardless, for those of you who thought I was going to tell you something about the Fourteenth Amendment, sorry. As a consolation prize, I offer you the text:
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 one 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 power to enforce, by appropriate legislation, the provisions of this article.
Looking it over, I think the Fourteenth’s probably my favorite Constitutional Amendment. The Equal Protection clause has done a lot of good work through the years. Not to mention the way the whole of Section 1 dispatches the Dred Scott case. Section 2 then obliterates the 3/5 Compromise. And the rest isn’t bad, either.
So what about you? What’s your favorite Amendment? The First? A bit on the nose, if you ask me. The Second? Um, yeah [backs away], sure, that’s a really good one. No offense, but the Third’s a bit anachronistic. Numbers Four through Eight? What are you, some kind of criminal? The Ninth is actually pretty cool. The Tenth is for neo-Confederates. You say you want the Eleventh? Suit yourself, loser. The Twelth? Elitist. The Thirteenth is a safe bet. The Fifteenth, too. The Sixteenth? Seriously? Yeah, that’s what I thought. The Seventeenth has certain charms. But I trust that nobody around here is going to claim the Eighteenth. The Nineteenth is a contender, of course. The Twentieth? Zzzz. Yes, you’re super cool if you said the Twenty-First, Mr. Party-pants. The Twenty-Second? A good one, to be sure. The Twenty-Third isn’t exactly setting the world on fire. We’ve talked before about the Twenty-Fourth. The Twenty-Fifth probably should be invoked more frequently. As for the Twenty-Sixth and Twenty-Seventh, if you know what both of them say, I doff my cap to you. So yeah, I’m sticking with the Fourteenth. But YMMV.


29 comments
July 28, 2008 at 11:54 pm
herbert browne
I’m liking the 26th Amendment… but 27? Izzat saying that the Reps can’t raise their own salaries during the term in which they bring forth the legislation?.. so that they have to get re-elected to collect on their largesse unto themselves? (that’s what I got… but I learned to read a long time ago… and things change, eg fine print on insurance contracts and PDR copy, etc) ^..^
July 29, 2008 at 12:05 am
herbert browne
I’m sure I don’t understand the 12th right, because the way I’m reading it, Joe Lieberman shoulda been V-P in 2000, based upon votes cast… but I’m sure that’s just not right… no (& you don’t have to point that shotgun at my face, buddy… I’m going). ^..^
July 29, 2008 at 3:50 am
anon
13th, 19th, 15th, 14th, 1st, 4th, 6th, 5th, 22nd, 8th, 16th, 21st, 17th, 24th, 9th, 12th, 7th, 3rd, 20th, 23rd, 26th, 25th, 27th, 11th, 2nd, 10th, 18th
July 29, 2008 at 4:30 am
Adam Roberts
Speaking sciencefictionally my favourite would be the twenty-eighth amendment, repealing the second.
July 29, 2008 at 6:03 am
foolishmortal
Tenth, motherfuckers, tenth. Of course, they print it on Capitol Hill toilet paper these days, but I agree with the sentiment. If that makes me a “neo-Confederate”, that just means I’ll rise again.
July 29, 2008 at 6:11 am
professordarkheart
I vote 9. There’s something ineffable about it that I love, something that hints at infinite human capacity while conceding, “You didn’t think this document was going to be able to get at ALL of it, did you?” It exhorts: “Get out there, you guys, and find your unenumerated rights!”
I’d call it the meta-amendment that underwrites 13, 15, 19, 24, and 26; and explains the fact that the only amendment that ever abridged the rights of citizens (yeah you, 18–how many parties do you get invited to?) didn’t last very long, and has so far stood as a warning to legislators trying to get the constitution to do their jobs for them.
July 29, 2008 at 7:05 am
foolishmortal
6:11 is true. I think both 9 and 10 are very elegant. As an IT guy, I think of them as exception catching (bug-trapping) amendments. But nobody gives a shit about either. Of course, it’s not like the other ones are holy ground, except for 16 of course. Has the SCOTUS ever decided a notable case on either ninth or tenth amendment grounds?
July 29, 2008 at 7:19 am
John B.
the 21st, most definetly…let’s raise a toast to the 21st amendment…the baby jesus knows that the rest is enough to drive a man to drink…
July 29, 2008 at 7:23 am
politicalfootball
Another vote for the ninth. I’ve seen it described as “the rule for reading the Constitution,” and I think that accurately describes its role in real-life jurisprudence. Nobody cites it, but sensible justices read the Constitution with the 9th amendment in mind.
Your originalists and strict constructionists, however, ignore the literal meaning and historical intent of the ninth. Go figure.
July 29, 2008 at 7:26 am
PorJ
The First and the Second are the only ones that really matter. They guarantee the others. Basically,without those two, the government could abridge all the others and there would be no recourse (in fact, there might be widespread, governmentally-imposed ignorance of such actions). You can’t begin to go down the list unless you establish the right to talk, assemble, and defend yourself…. from the black helicopter, UN beret-wearing, shape-shifting, Bildeburger crowd determined to use the government against you…. oops. Said too much.
July 29, 2008 at 7:38 am
jim
Scalia once claimed that the decline of federalism stemmed from the 16th and 17th amendments, so they have that going for them.
July 29, 2008 at 8:00 am
mb
Seems for every right you have they have an amendment taking it away.
Whats with that?
July 29, 2008 at 8:07 am
potchkeh
The delay between the ratification threshold and the ‘effective’ date has something to do, as I recall, with the fact that, by the time the required threshold had been reached, a couple of states that had previously ratified had also purported to rescind, and there was time spent working out the question of whether those rescissions were legitimate. But my books are at home, and I’m not finding much online.
Scalia once claimed that the decline of federalism stemmed from the 16th and 17th amendments, so they have that going for them.
I think there’s a good case that the 14th (and 15th) marked the real beginning of the decline of federalism–gave the federal government a strong role to play in what had earlier been considered internal state-level matters, and vastly expanded Congress’ jurisdiction, paving the way, along with an expansive understanding of the commerce power, for its eventual near-plenary powers. Turned on its head the earlier notion of states as a bulwark of liberty against potential overreaching by the federal government. It’s the mechanism by which most of the other rights enshrined in the constitution apply to the states. And the due process clause is, I think, the linchpin of the lion’s share of constitutional remedies in court. For those reasons, as well as the immediate substance of the equal protection and due process clauses, it’s by far my favorite.
July 29, 2008 at 8:15 am
stefan
I’m also away from my books, so I need to google. It looks like a July 28 executive branch declaration (by whom?) held that the Amendment had been ratified by 28 of 37 states, counting both Ohio and New Jersey as having ratified, even though both these states had rescinded their ratification before enough other states had ratified the Amendment for it to become valid (the New Jersey legislature then ratifying again, but with a veto from the Governor).
No court seems to have ruled on the validity of this procedure, though the validity of the 14th Amendment is settled law. It seems the Utah Supreme Court wrote in 1968 in dicta that ‘In order to have 27 states ratify the Fourteenth Amendment, it was necessary to count those states which had first rejected and then under the duress of military occupation had ratified, and then also to count those states which initially ratified but subsequently rejected the proposal. To leave such dishonest counting to a fractional part of Congress is dangerous in the extreme.’
Political history — no reason to leave it to the nuts.
July 29, 2008 at 8:21 am
SomeCallMeTim
Is being “in effect” different from being “in the house”? And, assuming differences, how does that effect the judicial construction of the 14th?
July 29, 2008 at 8:33 am
MichaelElliott
Ari — what about section 4 of the 14th? Doesn’t that drain a little of the energy out of it as a tour de force.
I think I’m going to stick with the 1st. Predictable, I know.
July 29, 2008 at 8:36 am
potchkeh
It looks like a July 28 executive branch declaration (by whom?)
Ah, it was Sec. of State Seward. Huh. Procedure set down by statute, apparently. See here (lower part of page, and pages following).
July 29, 2008 at 8:38 am
TF Smith
Come on, there is only one for-profit industry protected by name in the U.S. Constitution, so as a good capitalist, I have to go with the 1st.
This day in history in 1958:
http://www.nasa.gov/mission_pages/exploration/whyweexplore/Why_We_29.html
July 29, 2008 at 8:54 am
TF Smith
As a good capitalist, I like the 1st, which is the only time that a for-profit industry is protected by name in the Consititution.
Here’s this day in history, 1958:
http://www.nasa.gov/mission_pages/exploration/whyweexplore/Why_We_29.html
July 29, 2008 at 9:27 am
Hebisner
The Fourth Amendment is my favorite, despite the fact it has been effectively ignored if not repealed during the Neo-Con captivity we have endured these past 7 years. Second only to the Great Writ in my estimation, in protecting the individual against the power of the state.
July 29, 2008 at 10:29 am
foolishmortal
I know it’s silly, but thinking about this reminds me how much I love the Constitution. The balls on those guys, thinking they could restrain a “l’etat c’est moi” state with carefully drafted words! From a committee! And it halfway worked! It’s stupid, I know, but I still get sentimental about it every so often.
July 29, 2008 at 10:29 am
JPool
The third may seem anachronistic, but I sure don’t want any soldiers showing up, making me sleep on the couch and riffling through my fridge. I suppose we’re in a state of Perpetual War ™ now, but they’d at least have to pass the Manadtory Take a Soldier Home Act of 2009 before they knock down my door.
More seriously, I have some personal affection for the third, because it inspired some early historical imagination on my part (”Yeah, I can see how guys with guns wandering in would be annoying”).
So about section 4 of the 25th, the Vice President and the cabinet or some other folks can declare the President not really fit for office, but only after the President has done so themselves? Why was this the approach taken?
July 29, 2008 at 1:06 pm
Amos Anan
I’ve little knowledge of history but I’ve at times wondered about the 14th amendment and its significance in American history and what it says about America. Simply, could anything like the 14th amendment have ever been ratified other than under the gun as it effectively was in 1868 (or at least still effectively under the gun of the Civil War)? Looking at the current congress and the recent good will package bill that was stopped by the Republicans I have a very hard time seeing America as much better than South Africa or possibly worse. Of course Americans did fight a war for the 14th amendment and so deserve credit in that regard. Still, does anyone believe that the 14th amendment would be ratified today?
The primary focus of the 14th amendment today seems to be in establishing the corporation as the main beneficiary of constitutional concerns and the bill of rights. The corporation as the über citizen.
July 29, 2008 at 1:24 pm
andrew
Have you ever looked at the dates of ratification by various states? Some amendments have still not been ratified by some states, I believe. And in certain cases an amendment was ratified by enough states to be in effect in the 1870s, for example, and then the remaining non-ratifying states started ratifying in the 1960s. (I wonder why that would be?) Some examples from the 1990s.
July 29, 2008 at 2:14 pm
kid bitzer
totally the ninth.
without that, people might think that the rights listed in the other amendments were actually *created* by the constitution, or by their inclusion in it.
it’s the ninth that clarifies the point: your rights as citizens are neither created nor determined by the constitution. that document lists a few of them, it expatiates on some of them a bit, but that’s all. it does not create them or originate them. (and by “constitution” here I mean “1787 + bill of rights + other amendments”.)
not only did you have all of those rights before the constitution, you had more, which it doesn’t list. and the rights that are not listed are just as important as the rights that are listed (that’s why “disparage” is added to “deny”).
it’s more than just the epistemological point that prof. darkheart makes (which is a good point, too). it’s a metaphysical point, even if a somewhat negative one. it does not finally settle where the rights *did* come from, but it decisively rules out one metaphysical possibility: they were not created by the constitution.
that fact is essential for understanding every other bit of the constitution.
July 29, 2008 at 10:07 pm
herbert browne
Given the latter half of the 13th, why is Guantanamo still going on? ^..^
July 29, 2008 at 11:07 pm
ari
Given
the latter half of the 13thbasic decency, why is Guantanamo still going on?Because basic decency isn’t a given?
July 30, 2008 at 9:01 am
washerdreyer
Someone already mentioned the “Great Writ,” but I’d like to speak up for the proto-bill of rights in Article I, Section 9, cl.2-3 and maybe for the Republican form of government clause in Article IV as well.
July 30, 2008 at 9:34 am
silbey
Still, does anyone believe that the 14th amendment would be ratified today?
Uh, yes? Next question?