« I Don't See Red, Either | Main | Green Days »

Thursday, April 09, 2015

The Fauxriginal Fourteenth Amendment

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

In a jaw-dropping amicus brief recently filed with the Supreme Court, the state’s attorney general argues for a truly originalist understanding of the 14th Amendment, insisting that the Constitution permits discrimination not just against gays, but also against women. This argument is as morally abhorrent as it is historically accurate. And South Carolina deserves some credit for having the chutzpah to raise it.
The crux of South Carolina’s brief...is this: If the 14th Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish.

The state may well have its history right here. Congressional records show that the men who drafted the 14th Amendment were pretty adamant that their measure wouldn’t force states to recognize married women as independent humans with rights of their own. John Bingham, the chief framer of the amendment, assured one sexist congressman that he “need not be alarmed” that the measure would alter “the condition of married women,” since it would leave intact state property laws. Another framer, Samuel Shellabarger, explained that under the equal protection clause, states could still “deprive women of the right to sue or contract or testify.”

Some framers went further:

The 14th Amendment, adopted after the Civil War in 1868 to grant emancipated slaves full citizenship, states, “No state shall ... deprive any person of life, liberty, or property without due process of law, nor deny to any person ... the equal protection of the laws.”

We have the likes of former U.S. Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the 14th Amendment. He then left the Senate to become a lawyer. His Gilded Age law practice was going so swimmingly that Conkling turned down a seat on the Supreme Court not once, but twice. 

Conkling argued to the Supreme Court in San Mateo County v. Southern Pacific Rail Roadthat the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. According to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”

Which explains why the majority of early 14th Amendment cases were not, in fact, about race at all but rather dealt with corporate rights.  But it's always been a puzzle to me why the language isn't more specific in the ratified amendment.

The 14th repeatedly says all "persons" have the same privileges and immunities, defense against deprivation of life, liberty, and property without due process, and equal protection under the law.  It doesn't say anything about being limited to race.  Contrast to the 15th, which explicitly mentions race and color.

I'm more inclined to look at the plain text than consider what disparate members of that Congress said when they had every opportunity to choose their words.  So from where I sit--and Scalia can bite my shiny metal ass--women and queers are covered.


PS--SC also suggests that the 14th Amendment never compelled  "one size fits all" state marriage laws.  You know, 'cept for the ban on polygamy.

April 9, 2015 in Constitution, Schmonstitution | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The Fauxriginal Fourteenth Amendment:


Post a comment