Why We Must Defend the Fourteenth Amendment

It became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.…I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.

US Supreme Court Justice Ketanji Brown Jackson, October 4, 2022

At the founding of our nation, the framers of the Declaration of Independence wrote: “We hold these truths to be self-evident, that all men are created equal.” Yet application from the outset was limited to the very few.

At the Constitutional Convention held 11 years later, delegates agreed to count each enslaved person as three-fifths of a person to advantage slaveholders in terms of political power and taxation. They denied voting rights—and the political power that comes with those rights—to people without property, all Indigenous people, and all enslaved people.

The Fourteenth Amendment—with its guarantees of birthright citizenship, due process, and equal protection under the law—stands as a crucial democratic pillar.

Nearly 100 years later, between 1865 and 1870, our nation attempted to correct its course. In the aftermath of the Civil War, Reconstructionists advocated for the Thirteenth (abolition of slavery), Fourteenth (civil rights and citizenship), and Fifteenth (voting rights) Amendments, often referred to as the Reconstruction Amendments. When Congress and the states ratified these changes, the possibility of a multiracial democracy emerged.

The amendments’ explicit intent toward this ideal was laid out plainly by Supreme Court Justice Ketanji Brown Jackson during oral arguments in Merrill v. Milligan (now Allen v. Milligan)—a 2022 case challenging the race-consciousness of the Voting Rights Act. Her analysis, as described in Slate, was that “the entire point of the 13th, 14th, and 15th Amendments was to provide equal opportunity for formerly enslaved people, using color-conscious remedies whenever necessary to put them on the same plane as whites [italics in the original].”

In particular, the Fourteenth Amendment—with its guarantees of birthright citizenship, due process, and equal protection under the law—stands as a crucial democratic pillar.

Today, its core provisions are under attack and must be defended.

The Nation’s Second Founding

Next year, the nation will celebrate its 250th anniversary. But in many ways, the United States that we know today was not founded in 1776. Rather, it was built and refounded through the crucible of the US Civil War and the resultant abolition of slavery.

Indeed, many historians, such as Eric Foner, have argued that the three post-Civil War constitutional amendments were so important and so altered the nature of the US Constitution that they comprised, in essence, the nation’s “second founding.”

As Foner explained in an NPR interview, “This was a country with strong belief in liberty but with a strong racial barrier excluding nonwhites from enjoyment of many of those liberties. And so Reconstruction is an effort to shatter those boundaries and to create a new—really, a new republic.”

While the idea of expansive freedom embedded in the Reconstruction Amendments was the necessary first step toward atonement for the sin of slavery, ultimately, it offered a promise without a guarantee.

Within these clauses, the new founders offered a vision of what the governed could demand: due process, equal protection, the exclusion of insurrectionists, birthright citizenship, and more—even if the Constitution itself says very little about the mechanisms through which these objectives might be achieved. The courts, of course, have limited reach. Organizing a political voice to make the words on the page real, has always been critical.

What Does the Fourteenth Amendment Say?

The Fourteenth Amendment is considered one of the most important amendments in the US Constitution because it guarantees the rights of citizenship and equal protection under the law to all people born or naturalized in the United States. The amendment has five clauses, the majority of which are provisions that governed the aftermath of the Civil War: representation rules, who can hold office, invalidation of any Confederate debts, and a ban on compensation claims by former enslavers.

Section One, known as the Equal Protection Clause, is the most cited. It reads in full:

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.

This is where the right to birthright citizenship comes from—as well as the key provisions of due process and equal protection under the laws.

The phrasing “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” was intentional, and what it did was “incorporate” many of the provisions of the Bill of Rights to apply not only to actions by the federal government but to actions by state governments as well. Much of what comprises present-day “common sense” about US rights is only common sense because of the provisions of the Fourteenth Amendment.

These provisions have paved the way for many of the nation’s landmark legal decisions on issues like racial segregation—leading to the Brown v. Board of Education decision calling for integration of public schools in 1954; overturning bans on interracial marriage in the 1967 case of Loving v. Virginia; overturning bans on same sex marriage in the 2015 case of Obergefell v. Hodges; and the advancement of reproductive rights in the 1973 decision in Roe v. Wade (notably overturned in 2022).

Threats to the Fourteenth Amendment

Today, the Fourteenth Amendment is under attack. The disappearance of immigrant activists off city streets, the erosion of voting rights across many states, the takeover of our courts by “originalist” radicals, and the back-and-forth redistricting machinations are part of the same active assaults on the Fourteenth Amendment. Each is a distinct but additive swipe at equal protection under the law.

There are many rights and protections that those who are building White supremacist power could go after. Why is the Fourteenth Amendment in the crosshairs? The answer is simple. Whether 150 years ago or today, supporters of authoritarianism share a tactic: Divide to conquer.

The Fourteenth Amendment unites us. It protects immigrants and their citizen children. It protects the descendants of enslaved people. It protects every one of us who hopes to keep our life, liberty, and property from being summarily seized by the government. It is the codified point in our nation’s history in which the “We” in “We the People” became bigger and, therefore, harder to ignore. To divide, to conquer, the Right must dismantle the protections the Fourteenth Amendment affords us.

Many additional rights and freedoms are rooted in the protections granted within this amendment. From the right to collectively bargain to rules limiting discrimination in housing, education, or healthcare; the Fourteenth Amendment undergirds much of what we fight to enact, and, in this moment, strive to defend.

Losing the Fourteenth Amendment would dismantle foundational principles of US citizenship and civil rights, potentially creating a large, stateless underclass.

Specifically, repealing birthright citizenship would swell the population of undocumented people and create generational barriers to integration and economic opportunity. Erosion of the Equal Protection Clause would allow states to enact discriminatory laws without constraint, while losing the due process clause would severely weaken protections for life, liberty, and property.

By exercising rights loudly, courageously, and openly, people protect them.

What’s more, without the promise of due process or equal protection, the very act of questioning the decisions of our own government becomes riskier, if not impossible.

The aggression aimed toward immigrants and activists today foretells what may lie in store for every American if the nation does not mobilize to uphold these rights now.

Restoring Our Rights: The Road to a New Reconstruction

Imagining a world with a weakened Fourteenth Amendment is not difficult. After all, the United States has functioned under selective authoritarian rule before; we called this political caste system Jim Crow. As a nation, we carry that legacy, and therefore, the sacred responsibility to prevent its resurgence.

As organizers and practitioners of democracy, we must act every day to protect these invaluable rights—irrespective of race, class, or status.

Canvassing, engaging communities in principled struggle, and challenging institutions to be responsive to the needs of our communities are not only expressions of rights but also the best ways to restore them in this moment.

By exercising rights loudly, courageously, and openly, people protect them. The nation’s second founders pushed forward the Reconstruction Amendments to radically expand the freedom and rights that they and their counterparts had access to.

The Fourteenth Amendment says freedom and dignity belong to all of us. Those who want to reserve respectful treatment for the rich, the powerful, mostly White males, attack it for this very reason.

The attacks of the administration of President Donald Trump on the Fourteenth Amendment serve to divide and distract people as the White wealthy class consolidates power. But just like those who walked before us, we can claim our rights. We can chart a clear path out of chaos that leaves us stronger than when we started.