The Mighty, Mighty 14th Amendment

Eva PatersonThose of you who have seen the movie Lincoln now know all about the 13th Amendment. A couple of years later, the nation passed the 14th Amendment, which among other provisions enshrined equality in the sacred and living document that is our constitution.

One of EJS’s primary goals is “reclaiming the 14th Amendment.” The conservative Supreme Court has made it difficult to use the 14th Amendment to reverse discrimination. Now, one must show that the discrimination was intentional. Those of you familiar with the work of EJS know that we are all about demonstrating that racism in current America is usually not the result of overt racist attitudes. Unexamined and unacknowledged stereotypes often result in discrimination. The intent standard renders the 14th Amendment a less effective tool.

Last week, many commentators were talking about the 14th Amendment when discussing the two gay rights cases that the U.S. Supreme Court decided to take-Prop 8 and DOMA.

Marriage between women or men should be treated the same as marriage between a man and a woman. For those of us here in California and for those of us connected with the Equal Justice Society, this proposition is a no-brainer. We are hopeful that the Court, and particularly Justice Kennedy, will agree. Equal Justice. Equality.

The 14th Amendment also has been mentioned in the often insane debate around immigration. After the Civil War, it was imperative that the kidnapped Africans who had been so miserably treated in this country be citizens. The 14th Amendment assures that anyone born in these United States is a citizen. The children of undocumented immigrants born here are citizens. Some very mean spirited and racist folks have argued that we should amend the 14th Amendment in order to deny citizenship to these children.

We should recall that the 14th Amendment was a Constitutional remedy reacting in part to the horrendous Supreme Court decision in Dred Scott v. Sandford, which held that Black people were not protected by the constitution and not entitled to citizenship. Passed despite fierce opposition from almost all of the southern states, the 14th Amendment exists as one of our bedrock protections against discrimination – but only if we are vigilant against its erosion by the intent standard and similar judicial doctrines.

It was heart-warming to hear the 14th Amendment referred to on all the newscasts about the legal challenge to DOMA and Prop 8. The U.S. Constitution is a living breathing document. An amendment originally designed to ensure the inalienable rights of Black people is now being used to protect immigrants and gay people.

Viva the mighty, mighty 14th Amendment.

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