Chapter 14: An Examination of the 14th Amendment of the U.S. Constitution: Has it Aided Crafting Social Policy in America, Specifically Equally?
Abstract
This collection of historical events is an examination of the 14th Amendment of the U.S. Constitution, existing literature, and the impacts on social policy relative to privilege and power. This discussion provides information that may add to understanding of the question posed: Since the ratification of the 14th Amendment in 1868: Why has it taken 100 years to bring about any meaningful judicial and social reform? In hind-sight the 14th Amendment has aided in crafting social policy; not all policy consideration resonated equally under the protection of law. The struggle to maintain power and privilege is the result of many years of complicated issues accompanied by complacent behaviors and the human rationalization process. Specific to this review, complacency and the rationalization process is promulgated by those that enjoy privilege and power either wittingly or unwittingly. This is in stark contrast to those that have waited for equality through hundreds of years of ancestry disadvantage. The intent of the 14th Amendment to the U.S. Constitution and Social Policy provides an exercise in critical thinking and conclusions through personal research.
Key Terms: Power and Privilege, Complacency and Rationalization, Discrimination, Public Policy and Equality.
Introduction
AMENDMENT XIV-Section I:
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 the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (Hall & Feldmeier, p.604, 2017).
The historical review of the 14th Amendment of the United States Constitution ratified July 9, 1868 is provided in a fashion to answer one question. That is, since the inception of the 14th Amendment, why has it taken nearly 100 years for social and criminal justice to gain a foothold in public policy? The purpose of the following text is submitted for the sole purpose of energizing intellectual thought. In preparation for your final course assessment. Who can tell me what if any significant events occurred in the mid 1860’s? Yes, that is correct this country was just emerging from one if the most conflict-ridden clashes executed in America.
Arguably, the bloodiest conflict ever taken place on American soil was the Civil War. Some may argue the Native American Indian massacres are equal to if not greater than the former aggression based on the magnitude of outcomes. These two historical maladies are not mutually exclusive. On the one hand the Civil War was a conflict dealing with states’ rights to include the right to control slavery. The privilege of the larger wealthy and powerful to force labor and inequality from the less powerful group for the benefit of the more authoritive. The latter was the taking of native land, disavowing property rights, while rationalizing government sanctioned genocide. The property interest rights of Native Americans were well established prior to the influx of the European population. The property interests of Native American Indians is propositioned upon consideration of equal status as their European counterpart. Both events occurred as a result of a mindset asserting authority of one group over another. However, these remain salient elements of this examination and is provided for intellectual incitement.
At this juncture you are undoubtedly questioning what in the world does the Fourteenth Amendment have in common with power and authority? Patience my mindful practitioners, your final assessment question is forthcoming but first let us collectively examine what we know. The 13th, 14th, and 15th Amendments are regularly expressed as Reconstruction Amendments to the U.S. Constitution. The Thirteenth Amendment (1865) abolished slavery, presumably freeing the Negro; The Fourteenth Amendment (1868) providing due process and equal protection of laws, two of four substantial sections that is significant to this discussion; and the Fifteenth Amendment (1870) citizens shall enjoy all rights, regardless of race or color or previous condition of servitude (Hall & Feldmeier, 2017). The 14th Amendment was a bitterly debated amendment due to the citizenship rights of equal protection of the laws set forth during post-Civil War. This amendment contains several clauses to include: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause and the Equal Protection Clause all of which are posted in the forefront of the first section of the amendment.
Court Doctrine
Important to this discussion is the requisite but brief appraisal of the Warren Courts, aptly named for the Chief Justice of the U.S. Supreme Court (1953-1969). Chief Justice Earl Warren was clearly active with both social and criminal justice reform. The Warren courts afforded individual protections in landmark decisions impacting social and criminal justice. These include: right to an attorney during an interrogation (Miranda v. Arizona), (Mapp v. Ohio) securely linking all law enforcement efforts to the first Ten Amendments through a strong interpretation of the 14th Amendment, right to counsel during all court proceedings (Gideon v. Wainwright), and voting rights, civil rights, women rights to name a few. These decisions by the courts are often assessed in view of the constant flux of America’s social and public policy landscape. The Warren Court and subsequent courts relied heavily on strong interpretations of the 14th Amendment to protect civil liberties against government over reach.
This amendment is conspicuous in numerous deliberations of Supreme Court Justices providing a foundation for their decisions. The amendment rationale is evident in cases such as but not limited to Mapp v. Ohio (1961) guard against illegal searches, Katzenbach v. Morgan (1966) Congress preempting states voting laws, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) deciding the 2000 Presidential Election, Lawrence v. Texas (2003) dealing with privacy between consenting adults, and Obergefell v. Hodges (2015) regarding same-sex marriage.
These cases are examples of the previously stated clauses within the 14th Amendment that are: Citizenship Clause, Privileges or Immunities Clause, Due Process Clause and the Equal Protection Clause. These clauses are used to argue against government abridging individual liberties. Although the 14th Amendment is clearly designed to safeguard individuals from states over reach, the Court has decided cases regarding discrimination by an individual toward another individual. In other words it provides protection against discrimination by private and government entities. Since the tumultuous 60’s social revolt witnessed in the United States the courts have remained somewhat consistent reviewing legislation and practice based on bias and discriminatory impacts.
Concurrent with Chief Justice Earl Warren’s tenure was the enactment of substantial social justice reform legislation such as 1964 Civil Rights Act, 1968 Voting Rights, and an array of women rights. The pieces of legislation listed may be viewed as in direct conflict with Jim Crow Legislation and other equal protection abridgement endorsed during the span from 1868 to 1960 in-spite of the 14th Amendment existence. A prominent factor for consideration that is incorporated further on in this discussion of a Supreme Court Justice ideology and the weight of public opinion.
U.S. Supreme Court Justices Demographics
Since the dawning of the highest court of the land, it remained nearly white male and protestant for approximately 180 years. This inclination relative to the selection of Justice(s) continued until the appointments of Lewis Brandeis (1916, Jewish), Thurgood Marshall (1967, African-American), Sandra Day O’Connor (1981, Female), Antonin Scalia (1986, Italian-American), and Sonia-Sotomayor, (2009, Hispanic/Female) (A&E Bibliography). With few exceptions, the nominated justices were required to have a law degree or training in the law to secure appointment to the bench. Although no such requirement is contained in the Constitution.
Sufficient historical assessment of court membership is available to examine the nomination process through a Justices term demonstrating the majority of those confirmed are not only white males but were considered “Privileged”. Not until the mid-1900’s was there a concentrated effort to accrue justices of a more ethnically, racial, and gender diverse background. Preceding this time frame much of nominations could be labeled the elite class. With recent confirmations to the court the elitist sectarianism has not necessarily been dismissed. Albeit the 20th Century witnessed greater diversity in U.S. Supreme Court Justices appointed, there remains many ethnic groups yet to be represented on the court and geographically 19 States have never yielded a Supreme Court Justice (O’Brien, 2003). Native American Indians or Pacific Islanders are visibly absent from the list even though they are determined significant to list as an ethnic identifier for census data. Nor have Korean or Vietnamese descendants been selected for the court. This is not to say that these groups have not been considered for nomination however, considered is the key word (Bryan, 2010; Taranto, 2005). The current slate of Justices are all graduates from prestigious Ivy League College/University School of Law.
At this point in the conversation it is appropriate to suggest that not unlike the courts compliment of white males until the 19th Century, so goes the Chief Executive Officer (CEO) demographics of the industrial complex, media outlets, and government. The white male remains dominate in this landscape on into the year 2012. Distinctively 74% of all CEO positions of Fortune 500 companies currently have a white male at the controls (Zweigenhaft, 2013).
Public Opinion or Ideology
The election of Barack Hussein Obama II, the first African-American President of the United States (2009 -2017), was thought to be a turning point in American history. This election may suggest a softening toward the notion of desegregation in the White House. In the last two decades it appears that a new-found benevolence embracing the advances of gender and gay/lesbian rights, same sex marriage, and health care access and economic equality may now have added footing. Public opinion is extolled in favorable decisions of the court relative to these issues. The long-standing process of gender nullification in the Oval Office was thought to hit the glass ceiling with the nomination by democrats of Hillary Rodham Clinton. The celebration of equal footing for all may be a bit premature. The tumultuous winds of discord have abruptly halted the progress, at least temporarily, in the immediate presidential election following the Obama Administration. The anticipation of the “Good Old Boy Club” (White upper class) demise seems overly exaggerated at this juncture.
Giles, Blackstone, and Vining (2008) contend that the court is affected by public opinion. This works viewed judicial decision making through two specific lenses. These are strategic behavior of the court and the mechanism of attitudinal change. If the decision-making avenue of choice is to decide cases to avoid negative reaction, it may be considered strategic. If court rulings are based on ideology or attitudinal change then prominent precedent setting case law may not impact a decision.
Using the American Health Care Act as an example (Obamacare) found an ally in the courts delineating the penalty portion of the bill as a tax rather than a penalty (Financial assessment for failing to secure health care coverage.). The court turned away challenges to the law by finding an avenue that was constitutionally permissible; Congress may levy taxes. One should expect with reasonable certainty that this debate will rage on. The court may be confronted with the conundrum of: Is health care a right or privilege? Should the court find consensus with this issue as a right then how may the court deal with funding issues through challenges of legislation that may have an adverse impact on the disenfranchised or marginalized portions of society? Generally, the courts have rendered decisions in-spite of the cost factor or creating discomfort to litigants. During the courts dismantling of segregation in schools, it implemented busing, disregarding citizen interest of a residential purchase near a school of choice or the cost of additional bussing. An unpopular ruling for certain and rendered without regard to popular opinion.
In the U.S. Supreme Court decision Buckley v. Valeo 424 US 936; 96 SCt 1153, decided January 30, 1976, the court ruled that mandatory limits placed on campaign contributions and campaign spending was unconstitutional. The court found campaign reform legislation in part was an abridgement of speech. In other words, money is a form of speech. Recall that the 14th Amendment provides that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. This decision did much to expand the growth of campaign contributions either directly or indirectly through political action committees by special interest groups that may have served to further erode access to the political system. The incumbent has an advantage to assure campaign financing while limiting the ability of a lessor funded campaign/candidate (NYT, 1998).
Brown v. Board of Education, decided by the Warren Courts in 1954, had far greater impacts on the south than just segregation or repeal of the separate but equal doctrine. Again, clearly outlined in the 14th Amendment, “nor deny to any person within its jurisdiction the equal protection of the laws”. This single decision shifted from a strict rights issue to social perspectives to a moral and social justice question. In this decision, the Warren Court forced the south to examine male masculinity and treatment of not only African-Americans but the treatment of gays as well (Friend, 2009).
This behavioral modification within the southern states was not established in a vacuum or necessarily the result of a single judicial decision. As outlined in the conference examining, “Beyond Brown: How the Supreme Court Shaped the Modern South” the University of Sussex, Brighton (March 2007), four significant and relevant criteria added to the southern masculine metamorphosis. These are: First, the courts handling of other race cases in the immediate shadows of Brown; Second, the courts attitude toward race in criminal justice reform; Third, the Black freedom struggles on the part of activist inspired judicial expansion that protected all citizens prosecuted in the south; and Fourth, was the expansion of federal procedural protections afforded in other areas linked or not linked to federal law.
These associations were forged resultant of the Warren Courts disdain of white southern public authorities’ disregard for the guarantees fundamental to the equal protection clause (Beyond Brown, 2007). Garrow (2008) supports the argument of expansion of federal judicial authority “Yet the muscular and far-reaching self-assurance that the Warren Court exhibited from 1961 until 1967 was induced not only by the malfeasance and dishonesty of white southern officialdom. It also was influenced, in equal if not greater part, by the activism and courage of newly-emboldened Black southerners” (p.37).
The Warren Court legacy (Chief Justice Earl Warren), appears to have leaped light years ahead partially filling the social and criminal justice void of the previous 100 years subsequent to the ratification of the 14th Amendment in 1868. The Burger Court (1969-1986) was less amenable. Burger was thought of as a strict constructionist interpreting the constitution and upheld Georgia sodomy laws as a sound critic of gay rights. Burger was followed by Chief Justice William Rehnquist (1986-2005). Rehnquist applied greater levels of analysis to federal legislation protecting the reconstruction amendments (Greenhouse, 2009). Notwithstanding personal ideology of Justices, a study of court rulings in comparison to public opinion in two-thirds of those cases studied, the court provided preference to much of American opinion (Marshall, 2008).
The preceding section may elucidate the attention required for on-going social and judicial researchers regarding the nomination and vetting process for members of the bench. Often the vetting process of nominees include questions of what ideological camp does the nominee hail. Commonly previous decisions of a sitting judge in a lower prominent court sufficiently provides a road map of future decisions. The nominee’s judicial history is therefore considered paramount in securing or being denied a seat on the court. A relevant issue in the process as well as expectation of justices is how the justice may resolve dissonance between ideology and public opinion.
Interpretation Process
Judicial review of contended discriminatory laws and practices are commonly resolved in some form through interpretation of the Fourteenth Amendment. The court determinations are typically controlled by either substantive or procedural due process. Substantive due process, while also based on principles of “fundamental fairness,” is the measure used as to whether a law can be equitably applied by each state, regardless of the procedure applied (Justia Law, n.d.). “Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and non-economic matters” (GPO-14th Amendment, p. 1678, 2002).
The Due Process Clause of the 14th Amendment applies specifically to states in that “No State shall….” similarly located language already exist in the 5th Amendment’s Due Process Clause barring unequal laws by the federal government. Nonetheless both clauses have been interpreted to encompass identical tenets of procedural due process and substantive due process (Curry, Riley, and Battiston, 2003). Constitutional experts will often argue that in theory, the issues of procedural and substantive due process are significantly affiliated. The reality is that substantive due process has had greater political significance, as considerable portions of a state legislature’s substantive jurisdiction could be circumscribed, limited, or curbed by this application (GPO-14th Amendment, 2002).
Political, Social, and Economic Impacts
Political implication may be viewed in U.S. Supreme Court cases such as, Dred Scott v. Sandford, 60 U.S. 396 (1857). The decision is prior to the Civil War that determined a slave was not a person under the U.S. Constitution and therefore could not bring suit to establish freedom. Exactly how did the court define a person? The normal definition of a person may consider terms such as a being, human, individual; however, in the Scott decision the black man was determined as chattel, property, or personal possession. Subsequent to the war the public policy of “Separate but Equal” doctrine was a court fashioned social policy in reaction to the 14th Amendment. The doctrine was settled public policy positioned in the case of Plessey v. Ferguson, 163 U.S. 537 (1897). The doctrine remained in America public policy for approximately 60 years until Brown v. Board of Education I, 347 U.S. 483 (1954) at which time the separate but equal doctrine appeared to have lapsed.
Based on the foregoing the immediate question may be: Has “Separate but Equal” doctrine truly ended? Perhaps, the once overt socially acceptable practices of prejudice, bias and discrimination challenging race, ethnic origin, sexual preference, education, and gender has since gone underground. Self-righteousness and rationalization have since replaced active, open, aggressively violent, and socially accepted intentional practice of discrimination. As an example, although outwardly publically accepted segregation in schools was outlawed, the reality persists that countless populations consisting of the poorest of the poor are frequently sheltered in American inner cities. Populations within inner cities largely consists of minorities, immigrants, and economically disadvantaged creating covert segregation. Notwithstanding discrimination practices today, being covert and in many cases unintended, nonetheless it amounts to segregation. This salient point provides for the baseline discussion of America in Crisis. Perhaps contemporary discrimination in America is in denial or perhaps most have simply become complacent or in apathetic agreement with the status quo.
The momentum of the powerful and privileged, commonly thought of as white America, grew during the industrial revolution amplifying their grasp of public policy. The birth of the American Industrial Revolution primarily came about in the early 1800’s. The Cotton Gin invented by Eli Whitney (1793) separated cotton from the seed at a higher rate. Whitney’s invention separated the cotton at a higher rate but did not grow or pick the cotton. Thus, the Cotton Gin did not reduce the need for slavery but rather had the unintended consequence of increasing the need for slaves. Additional slaves were required as the workforce of choice to maintain sufficient inventories to keep up with Whitney’s invention. By 1860 one in three included in the southern census was a slave (Educators Resource, n.d.). On the other hand, the Cotton Gin did promote the need for additional inventions that stimulated the invention of spinning and weaving machines for cotton and the sewing machine for finished products. Additional impacts such as the Embargo Act (1807) and the War of 1812 aided the development of the textile industry in the northeast (Scherr, 2007).
Eli Whitney expedited the progress of the American Industrial Revolution with the introduction of interchangeable parts in manufacturing. From this idea of interchangeable parts spawned other industries such as steel, railroad, and auto. The need for factory workers had begun to transform America from the agricultural southern life style to the industrial north. Factories required workers as 72% of all American industry resided in the northeast by 1850 (Educators Resource, n.d.). However, the mass exodus of Black America from the south to the northern cities did not actually take place until after WWII (Piven & Cloward, 1993).
The social policy of the differing eras may suggest the conscious of many white workers in America. Specifically, the Irish did not fondly look upon the Negro’s emancipation for fear of a glut of workers impinging upon employment opportunities held by the Irish ethnic group. Minorities such as Negro, Mexican, and Asian workers were initially denied access to labor unions fearing these groups would inevitably degrade the quality of work (Hill, 1961; Takaki, 1993). Albeit many more African Americans have since joined the middle class after the ratification of the 14th Amendment, they do not necessarily find acceptance (Cose, 1993). There remains a vast Black populace that reside in poverty in contrast to whites as is the case for many minorities. Successful African Americans have described inclusiveness or lack thereof as issues including the inability to fit in, lack of respect, low expectations, faint praise, identity troubles, self-censorship, collective guilt, and exclusion from the club (Cose, 1993). Simplified, mere economic means does not necessarily measure equality (Amico, 2016).
What then or how much attention should be provided in this discussion regarding the plight of Native American Indians. The Indian in this discussion is an underprivileged class. One glaring contributing factor of this plight was that the value of Native American Lands was realized by western businessmen in America as early as President George Washington’s first term of office (Avlon, 2017). The powerful businessmen relied heavily on Congressional Lobbyist more so during the 1880’s to eliminate tribal communal living and property sharing practiced by the Cherokee Indians. The Cherokee illustration represents the intent of the businessmen to gain Indian properties. Often this plot was administered through treaties. The businessmen created a ruse, shrouding a land grab through the illusion of a feigned benefit to the Cherokee. The deceptive con used was property allotment for each male tribal member. Each male tribal member was issued his own piece of property rather than the existing communal practice. The suggestion fostered by this scheme was that it added to Cherokee manhood. The cessions were publicized as a benevolent and compassionate means to integrate the Native American into mainstream America (Stremlau, 2009). Problematic for the indigenous population was the fact Congress or the President may invalidate treaties at will and often did. As America struggles with its relationship with slavery, little or no attention is provided to Americas first tenants or natural born citizens. Advocates enthusiastically engaging in the process are erroneously viewed as similarly situated with early abolitionist (Stremlau, 2009). Treachery between American lobbyist (at behest of the American businessman) and Congress (Congressional Acts) has landed the Indian land acquisitions at the feet of the courts, that have subsequently ruled in favor of Native Americans reparations based on treaties or contractually based legalism.
Reparations have been appropriated and distributed to members of the tribal sovereign nations (Trosper, 1994). Once fines are paid does the discussion end regarding equality for a disadvantaged group? Albeit Indian reparations have done little to resolve inequities accomplished by white America it at least provides the pretense of an attempt to right a wrong. Unlike Native Americans, descendants of slavery have no such contractual claims and thus reparations for this class is relied mainly upon the good will of Congress. Consequently, raising further conflict between races as to whom should pay, especially since most contemporary America had not directly engaged in slavery. Does Congress levy an arbitrary tax on citizens today to fund a trust account for payment to an offspring of a former slave? Thus, establishing another entitlement that seems unsavory during current public administrations. A second, and much less desirable avenue for African American reparations is through judicial access. This avenue of relief relies heavily upon the ability for African Americans to demonstrate that their rights have been abridged by slave owners to bring suit against a slave owner’s family. This avenue is a much more difficult pathway to achieve reprieve.
Concerning the topic of bias toward sex and gender may be observed in early legislation. At the turn of the 18th century several states legislated against teaching women to read, own property or vote. During the social conflict of the 60’s considerable advances were experienced by women, nevertheless todays females earns approximately eighty-one per cent on the dollar in comparison of the male counterpart similarly situated in the workforce (BLS, 2013). In 2017 Congress proposed H.R. 1628, Better Care Reconciliation Act of 2017 (BCRA) that could severely undermine current conduits for women’s health care. The U.S. Senate concurrent legislation proposal was rated equally devastating (NYT, June 26, 2017). These proposals could severely cripple health care access through funding cuts in proposed health care bills and future budgets in areas such as Planned Parenthood reimbursements and Medicaid. The poor, elderly, and the minorities would realize the negative impacts (H.R. 1628, BCRA, 2017; NYT, June 26, 2017).
The courts had to intervene in personal partnerships by providing an avenue for relationships between adults to take its natural course. The fact is “We are sex, we do gender”. Has the latter crossed boundaries that now resonates with American society regardless of economic, social, gender, or ethnic status? Then is don’t ask, don’t tell now eliminated from military command consideration? The Department of Defense Directive promulgated by the Clinton Administration (1994) remained in tack until 2011. The medical fitness for duty directive prohibited questioning of military personnel regarding sexual preference. The directive also prohibited military personnel from disclosing the information. Prior to this approach being gay/lesbian could be grounds for dismissal from the military, regardless of a sterling military record. This begs the question, had sexual preference prevented a person from being a good Soldier, Marine, Sailor, or Airman. Perhaps the lack of knowledge creates barriers as opposed to ability. The debate remains with the courts regarding Lesbian, Bisexual, Gay, and Transgender fitness for duty (Miller and Cray, 2013). The issue was further complicated by a recent tweet of the Current U.S. President denying commitment to Transgender military personnel (Personal Communication by The President of U.S., July 26-27, 2017). Perhaps the barrier may have been developed through failing to understand that a person may have been born that way (Dastagir, 2017).
According to Alesina, Glaeser, and Sacerdote (2001), unlike European counterparts, America has placed its dissatisfaction with minorities squarely in the political and racially motivated arena limiting the power of the disadvantaged. Heterogeneous traits are used to separate members of American society rather than to celebrate the differences. Doing so provides an avenue of control without accountability of purpose by the powerful and privileged class.
Discussion
Romantic accounts of constructing the U.S. Constitution are portrayed as James Madison and a Congress of likeminded men that penned into flaming gold a grand and glorious document creating liberty for all. The pinnacle of liberty, equality, and freedom of citizens was crafted within the four corners of this document standing as the guiding light for the future of not only America, but all free societies of the world. Subscribing to the perfunctory obliteration of actual events is to ignore the significance of the attending decrees referred to as Amendments. As America matured, the grand and glorious document was modified to meet social obligations. First the tenuous infancy of this Union was insecurely structured upon frail pillars of an unsure constitutional framework. The great social experiment begins notwithstanding the ambition of the framers, who knew what would work to unite 13 differing colonial self-serving interests.
Slavery was a bitter pill for many of the framers but to address it during the initial framing of the Constitution was assuredly a receipt for disaster (Avlon, 2017). In order to gain southern states assurances of ratification of the initial document, the Slave, Negro, Black man was expressly denied inclusion into the American fabric. At least as a free person. Paradoxly the slave was considered chattel used as a bargaining chip to establish national unity expressing equality. Slavery was not limited to the black man in this country. Most if not all immigrant populations as a rite of passage to citizenship were exposed to some form of slavery.
Conspicuously absent from this examination of the 14th Amendment and social policy is the term “Diversity”. America, although much better during contemporary periods, has not fully embraced diversity. As illustrated in the previous sections, those of diverse cultures have predominately been relegated to the labor class and has experienced a glass ceiling relative to power and privilege.
The 14th Amendment and public policy is provided for your review in a historical perspective in preparation of the final assessment. The examination of materials as submitted provides a window to review historical events in the context of the courts application of the 14th Amendment and constructing or deconstructing of public policy. The court is often looked upon as the righteous vein of American life. The concept of oversight by an authoritative watchful eye to gain compliance of government rather than its citizenry is within the purview of the courts. The court has often fallen in line with public opinion but this appears more fortuitous than planned dependent upon prominence of the decision (Giles, Blackstone, and Vining, 2008). The discerning eye of the beholder gazing into social issues at differing times of history provides a look at how or why the courts may have ruled as they did. The onerous task of resolving political, economic, and social issues in the court cannot be decided solely on what the crafters of the U.S. Constitution meant. The flexibility of government to operate is provided in the Constitution by its crafters and is likewise sewn in the fabric of society with the same consistency.
A final reflection of the amendment itself may provide insight into the perceived or actual intent and strength of the 14th Amendment. The crafters of the U.S. Constitution did so by creating the document with foresight of flexibility sufficient to deal with an ever-changing society. During the near 80 years from of the inception of the U.S. Constitution until ratification of the 14th Amendment, life as known during that period was altered several times. Undoubtedly the federal government acted appropriately in its attempt to provide security, protection, and equality through an amendment considering the known prior treatment of an entire Negro population. Although the Negro population was freed, it would appear it was not the intent to permit the Negro to live among a more powerful white population.
Constitutional experts will substantively agree to the correctness and need of the 14th Amendment to at least on its face ensure equality for all. However, they are equally resonant to point out the strong-arming tactics required to gain state ratification of the Amendment. The intimidation for approval came on the heels of the deadliest conflict on America soil (Possible exception is the treatment of the Native American Indian.) that surrounded states’ rights (continuation of slavery). The proposal and eventual ratifying of the 14th Amendment signaled that “No State Shall ….” abridge the civil rights of another through creation of laws. Conspicuously absent from this obligation toward human rights was any restriction placed upon the courts to act. This point as previously provided herein did not prevent the court from protecting one class over another class interest as observed in Dred Scott or Plessey v. Ferguson. The separate but equal doctrine remained intact for approximately 100 years following these decisions. Thereby raising a pertinent question in this discussion; Has this amendment crafted social policy, negatively or positively?
Final Assessment
In preparation of your response you may wish to further contemplate: Was the very powerful 14th Amendment manipulated by those in control of a nation? In a written articulation of such magnitude how then could bigotry and prejudice reside in public policy for substantial periods within civilized America? Is bigotry and prejudice a tool of the wealthy or an emotion that simply over-rides logic? Who is in control of American social policy? How is or was the American populace part of the problem or part of the solution? How has rationalization of personal bias endured? Finally, the Assessment: The Fourteenth Amendment of the U.S. Constitution was ratified in 1868. The Fourteenth Amendment contains a due process and equal protection clause guarding citizen rights against overzealous state law, to wit:
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 the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (Hall & Feldmeier, p.604, 2017).
The 14th Amendment was ratified in 1868 providing protections for citizens against civil rights abuse:
Why did it take approximately 100 years (1868-1960’s) since the inception of the 14th Amendment to bring about momentous and more consistent social and criminal justice reform in the United States?
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