MENTAL FLOSS: Fourteen, Not One, Is The Loneliest Number

PORN VALLEY—While it's pretty clear that most politicians are scared of the U.S. Constitution (which would of course explain why so many have never read it), it's equally clear that it scares Republicans the most. All that talk about "mak[ing] no law respecting the establishment of religion," about not being "compelled in any criminal case to be a witness against himself," about the Fourth Amendment rights against "unreasonable searches and seizures" and "no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized" drives conservatives nuts. And, of course, when it comes to the Ninth—"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"—they'd rather just ignore it altogether, just as the Supreme Court does.

For instance, Justice Antonin Scalia—who recently told an audience at the University of Arizona, "The fight is about the Supreme Court inventing new rights nobody ever thought existed," like abortion and gay sex—obviously has no use for the Ninth ... or the Fourteenth, since he opined to his audience that "if the Fourteenth Amendment had a footnote indicating that the meaning of the phrase 'equal protection of the laws' would be whatever the Supreme Court decided at the time, the American people would never have voted for it." (Of course, he gave no examples of problems that everyone having "equal protection of the laws" had caused.) At a presentation at the Yale Law School in 2006, Scalia also called the Fourteenth's privileges and immunities clause "flotsam."

Attorney Larry Walters begs to differ with the esteemed justice.

"The problem that presented itself when the Fourteenth Amendment was proposed was that the states were entitled to violate constitutional rights at will and citizens had no remedies," Walters explained, "so it's essential to preserve civil liberties throughout the country that the Bill of Rights be applicable to not only the federal government but any and all state, local and county governments, and that's what the Fourteenth Amendment does."

It's not too surprising, therefore, that conservatives hate the Fourteenth—and these days, they're zeroing in on its first sentence: "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." Y'see, even though it was Republicans who proposed the 1868 amendment in the first place, to insure that freed slaves and their kids, not to mention members of the Confederacy who wanted back into the Union, were granted full citizenship rights, their modern-day counterparts now say they want to abolish that clause because too many foreigners (read: Hispanics) are coming into the country illegally and having kids here who, naturally, would vote Democratic when they grew up—and they claim also to have spotted the elusive "birth tourist" who, eight months pregnant, comes to the U.S. to give birth to her "terror baby" and then leaves to rejoin her terrorist buddies somewhere else in the world, thus allowing the kid, once grown, to freely enter the U.S. on a suicide bombing mission or some-such. (As the Bards said, "Paranoia strikes deep/Into your life it will creep/It starts when you're always afraid/Step out o' line, the man come and take you away.")

Anyway, good ol' boy Sen. Mitch McConnell thinks Congress should hold hearings on the "anchor baby" menace to see what laws it could pass to prevent them, thereby displaying McConnell's ignorance of constitutional law—i.e., you can't change the Constitution through legislation, only by amending it—but that's likely just a smokescreen for the conservatives' real objective: Getting rid of the Fourteenth Amendment altogether.

It really does go back to the remainder of the Fourteenth's first paragraph, which establishes that both the substantive due process and equal protection clauses of the Constitution apply to the states: "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."

That's the section that the Supreme Court majority in Lawrence v. Texas used in formulating its decision to strike down Texas' (and the nation's) sodomy laws—and that's what Scalia bashes in his dissent, along with other cases decided under the Fourteenth, including Roe v. Wade. In fact, Scalia concludes that the high court's application of the Fourteenth "effectively decrees the end of all morals legislation"—which, in fact, it should, which is why Lawrence has been cited in motions in nearly every obscenity case since that 2003 ruling.

But believe it or not, that's not the only section that scares them, even though they're unlikely to admit it. Just as scary for conservatives is what might be called the "forgotten paragraph" of the Fourteenth, Paragraph 2: "[W]hen 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." [Emphasis added]

Ain't that a kick in the teeth? Anybody remember poll taxes? Literacy tests which "effectively disfranchised many African-Americans in the south from the 1890s until the 1960s"? Gov. George "segregation now, segregation tomorrow, segregation forever" Wallace? White Citizens Councils? The late Chief Justice William "the white people of the south do not like the colored people" Rehnquist? All of those worked to turn minorities away from the polls, leading to laws being passed and politicians elected by denying or abridging those otherwise-legal voters' right to cast their ballots.

As famed science-fiction author (and sexual libertine) Ted Sturgeon pointed out in an article for The Realist in 1964(!), "Paragraph 2 ... says 'in any way' abridged. That means any one guy in front of a polling place with a billy in his hand and blood in his eye. It makes a Federal offense out of the anti-franchise activities of the KKK and the White Citizens Councils as well as any court clerk who takes it on himself to demand a Ph.D. thesis of a Negro field hand who wants to register. ... It could mean a survey of every vote in every session of every legislature; and where the record showed a close vote, a determination might have to be made to find out how many votes were cast by illegal legislators. ... Not only would a vast amount of existing law just disappear, a mountain of previously 'defeated' legislation would prove to have been passed after all."

(And of course, with the passage of the Twentieth and Twenty-Sixth Amendments, add women and 18-year-olds to the voting population who could have been discriminated against under the Fourteenth.)

But, you say, poll taxes and literacy tests are a thing of the past; surely there's no use for Paragraph 2 nowadays?

Remember Tom Tancredo, the former congressman who's running for governor of Colorado on the Constitution Party ticket? Just last February, he told a Tea Party convention in Nashville that, "[S]omething really odd happened, mostly because I think that we do not have a civics literacy test before people can vote in this country. People who could not even spell the word 'vote,' or say it in English, put a committed socialist idealogue in the White House, name is Barack Hussein Obama."

And then there's that August 9 editorial in The New York Times on the National Voter Registration Act of 1993, better known as the "motor voter" act. Most people don't know that besides requiring state DMV offices to stock voter registration forms, so those applying for licenses can register to vote at the same time, the law also requires that the forms be available at "offices that administer food stamps, welfare, Medicaid, disability assistance and child health programs."

"States were enthusiastic about the motor-vehicle section of the law, and millions of new voters got on the rolls while getting a driver’s license," the Times editorial noted. "But registration at public assistance offices proved far less popular. In part, that was because of additional paperwork at those offices, but in many states, Republican officials did not want to provide easy entry to the voting rolls for low-income people whom they considered more likely to vote Democratic." [Emphasis added]

So we have to wonder: Over the last 17 years, how many citizens of how many states had their voting rights denied or abridged because of these Republican tactics? How many laws were passed and how many politicians elected who shouldn't have been because of these Fourteenth Amendment violations? Maybe Reagan, Ford and the Bushes were never presidents after all? Maybe congressional mush-brains like Newt Gingrich, racists like Strom Thurmond, sexual suppressives like Jesse Helms (father of "obscenity RICO") and the like were never constitutionally elected!

Yeah, who needs the Fourteenth Amendment? After all, it's just one of the last things standing between a free country and a religio-conservative dictatorship!

Or should be.