Zadekpedia

Ask BobAsk a question of every episode, 2009–2023 — answers cite the minute

14th Amendment

6 min read

Part of The Constitution and the courts.

Start here

Every episode (5)

Who argued it

Dick Morris · John Giadjopoulos · Evan Bernick · Ilan Wurman · Sheldon Gilbert · Sam Gedge

Originalism · Donald Trump · Federalism · Constitutional Law · Commerce Clause · Enumerated Powers

Background

Incorporation and the Excessive Fines Clause

In the Timbs v. Indiana episode, Bob Zadek frames the 14th Amendment as the vehicle by which the Bill of Rights was applied to the states, noting that the Bill of Rights originally limited only the federal government and that the 14th Amendment, one of the Civil War amendments, applied it to the states for the first time. He raises the question whether the amendment applies all of the rights in the Bill of Rights or only some. Awaiting the Verdict in Timbs v. Indiana (2018)

Sam Gedge describes the Supreme Court’s “selective incorporation” process, under which the Court looks at rights “on a right-by-right basis in the first eight amendments” and determines whether each is so fundamental to the legal tradition that it is incorporated into the 14th Amendment and applies to state and local authorities as well as the federal government. He gives the example that a local mayor cannot violate First Amendment rights. Awaiting the Verdict in Timbs v. Indiana (2018)

The Timbs case turned on whether the Eighth Amendment’s Excessive Fines Clause applies to the states. Gedge explains that the Eighth Amendment has three protections: against cruel and unusual punishments, against excessive bail, and against excessive fines. In Tyson Timbs’s case, two levels of the state judiciary said taking his $42,000 car was an excessive economic sanction, but the Indiana Supreme Court said it did not care whether the taking was an excessive fine because the US Supreme Court had never said the Excessive Fines Clause applies to the states at all. Awaiting the Verdict in Timbs v. Indiana (2018)

Birthright Citizenship and Dred Scott

In the episode on birthright citizenship, Sheldon Gilbert reads the first sentence of Section 1 of the 14th Amendment: “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.” He says the purpose of that sentence was first and foremost to undo the Dred Scott decision, which said that anybody of African descent could not be an American citizen, and that it creates a categorical rule for how one becomes a citizen. Revenge of the Pen and the Phone (2018)

Bob Zadek describes Dred Scott as written by Chief Justice Taney and as probably the worst Supreme Court decision in the history of the Supreme Court. He places the 14th Amendment among the post-Civil War amendments, the 13th, 14th, and 15th, and calls it perhaps one of the most important amendments ever in the history of the Constitution. Revenge of the Pen and the Phone (2018)

Gilbert recounts that Wong Kim Ark was born in San Francisco in 1873 to Chinese immigrant parents, worked as a cook, and left the country as a teenager to visit China; on his return, immigration officials said he could not come back because he was not a citizen and was excluded under the Chinese Exclusion Act. His case, United States v. Wong Kim Ark, went to the Supreme Court, which grappled with Section 1 of the 14th Amendment for really the first time and held that because he was born in the United States and subject to its jurisdiction, he was a citizen. Gilbert dates the decision to 1898. Revenge of the Pen and the Phone (2018)

Substantive Due Process and the Conservative Constitution

In the episode on the conservative Constitution drafting project, Ilan Wurman argues in his book The Second Founding: An Introduction to the 14th Amendment both that the original meaning of the 14th Amendment precludes substantive due process and that incorporation was wrong. He says substantive due process is the idea that the Due Process Clause is not merely a procedural limitation but a substantive limitation on legislation, under which the Supreme Court has enforced rights to use contraception in marriage, to abortion, and to same-sex marriage and same-sex sodomy. The Conservative Constitution (2021)

Wurman describes the original Constitution as creating a federal structure in which the Bill of Rights limited the national government but did not apply to the states, which had their own bills of rights. He says that after the adoption of the 14th Amendment, especially in the 20th century, the Supreme Court incorporated the Bill of Rights against the states and nationalized unwritten fundamental rights through substantive due process. He gives the examples that California cannot experiment with prohibiting handguns and Texas cannot experiment with abolishing the exclusionary rule, which he says is not commanded by the original meaning of the Fourth Amendment. The Conservative Constitution (2021)

In the team’s draft constitution, 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, while explicitly incorporating the Bill of Rights so that neither the United States nor any state may violate First Amendment, Second Amendment and other equivalents. The Conservative Constitution (2021)

Across episodes: Incorporation

The Timbs episode treats incorporation as an ongoing right-by-right process, with Gedge describing selective incorporation and the Excessive Fines Clause as not yet decided; the Wurman episode, three years later, treats incorporation as a settled feature of modern doctrine that his draft constitution makes explicit while rejecting substantive due process. The birthright citizenship episode addresses Section 1’s citizenship sentence rather than incorporation, so it does not develop the same question.

Backlinks