The 14th Amendment is one of the post-Civil War amendments, alongside the 13th and 15th. In these episodes it appears in three distinct roles: as the vehicle by which the Bill of Rights has been applied to the states, as the source of birthright citizenship, and as the site of a dispute over unwritten fundamental rights. Bob Zadek calls it perhaps one of the most important amendments ever in the history of the Constitution, and notes that most people who know it exists associate it with slavery without being sure of the details Revenge of the Pen and the Phone (2018).
The Excessive Fines Clause and the incorporation question
The amendment’s application to the states was the issue before the Supreme Court in the case of Tyson Timbs, discussed with Sam Gedge of the Institute for Justice. Timbs was arrested and police took his $42,000 car under Indiana statute. The trial court held that taking his most valuable piece of property was so disproportionate to his offense that it was an excessive fine under the Eighth Amendment’s Excessive Fines Clause, and the intermediate court agreed. The Indiana Supreme Court then took what Gedge calls a really weird turn: it said it did not care whether taking the car would be an excessive fine, because the US Supreme Court had never told it that the Eighth Amendment’s Excessive Fines Clause applies to the states at all Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge lays out the Eighth Amendment’s three separate protections: the protection against cruel and unusual punishments, the right to be free from excessive bail, and the right to be free from excessive fines — protection against the government imposing disproportionate, crippling economic sanctions. It was the third that came into focus in Timbs’s case. Zadek frames the broader question: the Bill of Rights limits what the federal government can do, and it was pretty clear it was not intended to apply to the states when drafted and enacted, but the 14th Amendment applied the Bill of Rights to the states for the first time. The question that arose was whether it applies to all of the rights in the Bill of Rights or only some Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge describes the Supreme Court’s approach over roughly the past 80 years as “selective incorporation” — a right-by-right examination of the first eight amendments to determine whether each right is so fundamental to the legal tradition and Anglo-American heritage that it is incorporated into the 14th Amendment and applies to state and local authorities as well as the federal government. Zadek notes that some rights are obvious, such as freedom of speech and the exercise of religion, and the right to bear arms more recently in the Heller case, but that the Supreme Court has not decided as to each and every right — and that the Excessive Fines Clause had never been found to apply or not apply to the states Awaiting the Verdict in Timbs v. Indiana (2018).
Birthright citizenship and the first sentence of Section 1
In a separate episode, Sheldon Gilbert of the National Constitution Center reads the first sentence of 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.” Gilbert says the purpose of that sentence was first and foremost to undo the Dred Scott decision and wipe it off the books, but that it does more: it creates a categorical rule for how one becomes a citizen Revenge of the Pen and the Phone (2018).
Zadek describes the Dred Scott decision, written by Chief Justice Taney, as probably the worst Supreme Court decision in the history of the Supreme Court, and says Taney was from Maryland, an avowed pro-slavery justice. Gilbert explains the post-Civil War context: the country was fractured and broken, and one of the first questions to be answered was the status of former slaves in the South — whether they would be citizens or treated like Native Americans as dependent sovereigns — and what to do about a decision holding that anybody of African descent could not be an American citizen Revenge of the Pen and the Phone (2018).
Gilbert identifies the next major moment in the story as the 1890s, with Wong Kim Ark, born in San Francisco in 1873 to Chinese immigrant parents, who worked as a cook. When he was about nine, Congress passed the Chinese Exclusion Act, which banned more Chinese immigration and blocked the Chinese from becoming citizens. As a teenager he left the country to visit China, and on his return immigration officials told him he could not come back because he was not a citizen and was excluded from citizenship under the Act. His case, United States v. Wong Kim Ark, went to the Supreme Court, which had to grapple with Section 1 of the 14th Amendment for really the first time. The court agreed that because he was born in the United States and subject to its jurisdiction, he was a citizen, and the decision was handed down in 1898 Revenge of the Pen and the Phone (2018).
Substantive due process and originalist objections
Ilan Wurman, associate professor at the Sandra Day O’Connor College of Law at Arizona State University and author of The Second Founding: An Introduction to the 14th Amendment, gives an account of what the amendment was and was not supposed to do. The original Constitution, he says, created a federal structure in which the Bill of Rights limited the scope of the national government’s power but did not apply to the state governments’ power; the states had their own bills of rights, and as of 1868 every state had a First Amendment equivalent and almost all had a Second Amendment equivalent The Conservative Constitution (2021).
After the adoption of the 14th Amendment, especially in the 20th century, Wurman says the Supreme Court did two things. First, it incorporated the Bill of Rights against the states, so that the federal Bill of Rights as interpreted by the national Supreme Court applies everywhere in all 50 states — meaning California cannot experiment with prohibiting handguns, and Texas cannot experiment with abolishing the exclusionary rule, which Wurman says is not commanded by the original meaning of the Fourth Amendment. He says he is not saying incorporation has been a bad thing and thinks overall it has been a good thing, but that there is a cost to it The Conservative Constitution (2021).
Second, Wurman says the Supreme Court has nationalized unwritten fundamental rights under the concept of substantive due process. The Due Process Clause of the 14th Amendment says no state shall deprive any person of life, liberty, or property without due process of law; substantive due process is the idea that the clause is not merely a procedural limitation but a substantive limitation on the substance of legislation itself, such that some unwritten rights are so fundamental the state cannot interfere with them without exceptional justification. He lists rights to use contraception in marriage, to abortion, and to same-sex marriage and same-sex sodomy as enforced under this doctrine, and says it is hardly clear that a lot of these things are commanded by the Constitution The Conservative Constitution (2021).
In his book, Wurman argues both that the original meaning of the 14th Amendment precludes substantive due process — that there is no such thing, and that it was made up in the 1870s and ’80s when the Supreme Court conflated antebellum doctrines that loosely resembled it — and that incorporation was wrong. In his view, states can experiment with Second Amendment, First Amendment and Fourth Amendment rights as long as they do not discriminate and must treat their citizens equally. The modern doctrine, he notes, disagrees with him in both respects The Conservative Constitution (2021).
In the conservative team’s draft Constitution for the National Constitution Center’s Constitution Drafting Project, Wurman says, they nip substantive due process in the bud with language to the effect that the Due Process Clause shall not be construed by the Supreme Court to empower the national judiciary to impose unwritten rights on the nation. They do, however, explicitly incorporate the Bill of Rights, settling that question once and for all by taking the rights in the Bill of Rights and providing that neither the United States nor any state shall abridge them, with First Amendment and Second Amendment equivalents that vary somewhat from the originals The Conservative Constitution (2021).
Across episodes: the amendment as a live question
The excerpts do not show a single argument developing across the episodes so much as three separate treatments of the same amendment. In the Timbs episode, Zadek and Gedge treat incorporation as an unfinished right-by-right project, with the Excessive Fines Clause as the unsettled item. In the birthright citizenship episode, Zadek and Gilbert treat Section 1’s first sentence as settled text with a determinate history running from Dred Scott through Wong Kim Ark. In the Wurman episode, incorporation is treated as an accomplished fact whose costs are weighed, while substantive due process is treated as an error to be corrected by drafting. The earlier treatment asks which rights the amendment reaches; the later treatment asks whether the amendment’s due process clause should be read to reach unwritten rights at all.
What the sources do not cover
The excerpts do not state the full text of the 14th Amendment beyond the first sentence of Section 1, nor do they describe Sections 2 through 5. They do not give the outcome of Timbs v. Indiana at the Supreme Court, the reasoning of the Indiana Supreme Court beyond its refusal to decide the Excessive Fines Clause question, or the current state of the incorporation doctrine as to any right other than those named. The Wurman excerpt breaks off before the discussion of conscription and the Necessary and Proper Clause, and the birthright citizenship excerpts break off before the modern debate over children of illegal immigrants is resolved.