Understanding our Constitution
by Rob Natelson – November 15, 2021
Last week’s installment covered the first three parts of Section 1 of the 14th Amendment—the Citizenship Clause, Privileges or Immunities Clause, and Due Process Clause. This week’s installment addresses the remainder of Section 1 as well as Sections 2 through 5.
Section 1 (concluded): “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”
Comments: This is the Equal Protection Clause. It applies against state governments a principle of trust law underlying the original Constitution: that government has a duty to treat people fairly and impartially (pdf). Like the rest of Section 1, it generally doesn’t apply to private, non-governmental, conduct.
Although “living constitutionalism” usually isn’t a good way to construe the Constitution, the Equal Protection Clause is one provision that authorizes something like living constitutionalism. This is because a court must consider how facts have evolved over time when determining whether a group is being treated fairly.
For example, in 1896, the Supreme Court ruled that governments could enforce racial segregation in public accommodations as long as the races were treated equally (pdf). This was known as the rule of “separate but equal.” But by 1954, experience had proved that separate was never equal: In reality, segregation always presented African Americans and other politically disadvantaged people with the short end of the stick. This is one reason the court was correct to reverse itself that year (pdf).
As flexible as the Equal Protection Clause is, the Supreme Court has managed to exceed its scope. Notable illustrations are the court’s reapportionment cases, which ruled that the Equal Protection Clause requires states to apportion both houses of their legislatures entirely on population. The reason these decisions are erroneous is that the clause doesn’t apply to suffrage. As the word protection suggests, the Equal Protection Clause regulates how government impacts persons—what the post-Civil War generation referred to as “civil rights.” It doesn’t affect “political rights”—people’s impact on government. Voting is in the latter category.
Moreover, if the Equal Protection Clause had covered suffrage, the apportionment rule of Section 2 (discussed below) would have been unnecessary: Congress could have merely passed laws enforcing the Equal Protection Clause, using its power under Section 5 (also discussed below). For the same reason, the 15th Amendment, protecting minorities’ right to vote, would have been unnecessary.
But Section 2 and the 15th Amendment were deemed necessary, precisely because the Equal Protection Clause was not relevant to voting.
Section 2 is as follows:
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.”
Comments: Section 2 abolished the “three-fifths rule,” which reduced a state’s representation if it permitted slavery. With the end of slavery, the three-fifths rule was no longer relevant.
Section 2 also allowed states to deny suffrage to criminals and for “participation in rebellion”—specifically the former Confederates. However, it sought to guarantee minority voting rights by providing that if a state infringed the access of newly freed slaves or other minorities to the ballot, then that state lost Representatives in Congress. This term proved unworkable.
Section 3: “No person 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.”
Comments: Section 3 prevented any Confederate from serving in state or federal office without a two-thirds vote of each chamber of Congress. When the 14th Amendment was being considered, this was one of the most controversial provisions, because it denied Southern states the official services of some of their most experienced and able people. Many cited it as evidence that the amendment was overly partisan.
After the Capitol riot of Jan. 6, 2021, enemies of former President Donald Trump spoke of applying Section 3 to him—of disqualifying him permanently from office because he had “engaged in insurrection.” This talk faded, however, as it became clear that there was little, if any, evidence that Trump had incited the Capitol incursion. On the contrary, Trump specifically had exhorted his followers to proceed “peacefully.” Moreover, the Capitol riot, as bad as it was, was not an “insurrection” or “rebellion” under any accepted use of those words.
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 slaves; but all such debts, obligations, and claims shall be held illegal and void.”
Comment: Section 4 mandates payment of the debt of the United States and prohibits payment of Confederate debt or compensation for lost slaves. During the debates over the 14th Amendment, opponents also cited Section 4 to support their argument that the amendment was overly partisan.
In modern times, when politicians seek an increase in the federal debt limit, they often refer to this section. They claim that if the debt limit is not increased, the government will default, in violation of the 14th Amendment. The mass media sometimes repeat this claim uncritically.
However, it’s not true. If spending remains at existing levels, there’s always more than enough to pay the debt under the existing debt limit. The only reason to raise the limit is to authorize more debt and thereby permit additional deficit spending.
Section 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Comments: This has been called a “little necessary and proper clause.” Just as the original Constitution enables Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” Section 5 allows Congress to make laws to enforce the foregoing parts of the 14th Amendment. For example, Congress may enforce the Equal Protection Clause by banning state discrimination based on race or gender. (Congress addresses private discrimination under other constitutional provisions.)
In the early 1940s, the Supreme Court stretched the Necessary and Proper Clause out of all recognition, enabling Congress to regulate the entire economy under the pretense of regulating commerce (pdf) (pdf). More recently, the justices have endeavored to prevent the same thing from happening to Section 5. The court therefore maintains that any legislation under Section 5 must be “congruent and proportional” to 14th Amendment goals (pdf). It would be wild overreach, for example, for Congress to abolish state capital punishment on the pretense that this was “appropriate legislation” to guarantee “due process of law.”
Robert G. Natelson is a retired constitutional law professor, senior fellow in constitutional jurisprudence at Colorado’s Independence Institute, and the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).