October 6, 2022

When the Supreme Court ended the constitutional right to abortion, investigative journalist Jordan Smith knew the implications. She summed up the dilemma in the headline of her analysis for The Intercept, “In Overturning Roe, Radical Supreme Court Declares War on the 14th Amendment.”

While some may disagree with her stance, Smith focused on the erosion of liberty in the aftermath of Dobbs v. Jackson Women’s Health Organization.

Few media outlets fathomed the impact of the court’s decision on one of the most treasured doctrines of democracy.

Bernadette Meyler, Stanford Law School professor, published a scathing critique of Justice Samuel Alito, who wrote for the majority in Dobbs. “His opinion adduced 19th-century state statutes restricting abortion as evidence that the right to obtain an abortion was not part of a constitutionally protected liberty interest.”

Meyler believes the Dobbs decision might erode other rights on similar grounds, including same-sex marriage — also protected by the 14th Amendment.

“All of these rights were established on the basis of a much broader conception of liberty, one capable of evolution rather than embalmed in the amber of history.”

One can argue that the 14th Amendment is somewhat unique in this respect. Other amendments are far less flexible, including the two most popular: the First and Second.

Those amendments emphasize “freedom,” which relies on the government and constitution of a country enacting laws that secure individual rights.

Freedom is not synonymous with liberty, which removes obstacles, barriers and constraints enabling people to take control of their lives and achieve their individual goals.

Simply put, it is “the right to choose.”

The 14th Amendment is longer in word length than any of the 26 other amendments. It has five sections:

  • The first affirms natural born citizenship, fundamental liberties and equal protection under the law.
  • The second restores formerly enslaved people to full person status in deciding congressional representation, assuring voting rights.
  • The third bars from public office anyone participating in insurrection.
  • The fourth bans payment of any debt incurred by the Confederate States, including any compensation to former enslavers.
  • The fifth empowers Congress to enforce the above provisions, elevating the federal government over states’ rights on these liberties and inviting laws to punish violators.

We seldom hear how the 14th Amendment applies to situations governing immigration and birthright citizenship, civil liberties, racial gerrymandering, voting rights and insurrection, among other topics in the news.

Part of the problem concerns coverage of the high court, which requires a thorough grounding in history, philosophy and jurisprudence — in addition to applicable case law — so that decisions are put into proper context.

It is not enough to translate and interpret legal jargon.

As one study notes, “Supreme Court reporters are less participatory in the processes they cover than their colleagues in other governmental settings; therefore, it is difficult to argue that journalists have any impact on court decisions.”

Tom Hodson, director emeritus of Ohio University’s E.W. Scripps School of Journalism and former judicial fellow at the U.S. Supreme Court, agrees with the above assessment. Court reporting, he says, “has become more like sports reporting — who won and who lost instead of insightful information about past cases and potential future cases.”

When the court dilutes, obfuscates or diminishes the impact of the 14th Amendment, the public needs to know the ramifications beyond the specifics of any particular hot-button issue.

In the case of Dobbs, that includes the erosion of liberty.

Divisive doctrines

The 14th Amendment has been controversial from its inception to the present. To reenter the Union, former Confederate States were forced to ratify it. Historians note that “the ongoing presence of the Union Army in the former Confederate states ensured their compliance.”

In 2010, Republicans debated amending the first section granting birthright citizenship. Sen. Lindsey Graham and other conservatives objected to children of undocumented immigrants gaining rights of citizenship. In 2018, former President Donald J. Trump wanted to abolish the clause by executive proclamation. (He may have more personal reasons to object to the 14th Amendment as his opponents want to use it against him as an insurrectionist unqualified anymore for office.) The Texas GOP Party wants to amend birthright citizenship, requiring at least one biological parent to be a citizen.

Journalists should check the log of 14th Amendment cases that reached the Supreme Court, reviewing attempts to amplify or diminish personal and civil liberties.

An apt example is Minor v. Happersett, decided in 1874.

Virginia Minor, cofounder and first president of the Woman’s Suffrage Association of Missouri, believed that section one of the 14th Amendment bestowed on her the right to vote. It certainly seemed to do just that:

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.

In 1869, a year after the amendment was adopted, Minor gave the opening address at the Missouri Woman Suffrage Convention.

Her speech contains objectionable language concerning untaxed Indigenous peoples and naturalized male citizens. Nevertheless, she makes cogent arguments. If women cannot vote, she said, they should be exempt from taxation. Moreover, a naturalized man not only may vote but also can run for Congress, representing disenfranchised women’s interests.

She would have no part of that.

Thus, she asserted, “I believe that the Constitution of the United States gives me every right and privilege to which every other citizen is entitled; for while the Constitution gives the States the right to regulate suffrage, it nowhere gives them power to prevent it.”

Three years after her speech, Minor tried to register to vote in St. Louis. But the registrar, Reese Happersett, forbade that, prompting Minor to file suit. The trial court, Missouri Supreme Court and, ultimately, the U.S. Supreme Court ruled against her.

She was represented there by Francis Minor, a lawyer and women’s rights activist who was also her husband, who, according to the court, “went into an elaborate argument, partially based on what he deemed true political views, and partially resting on legal and constitutional grounds.”

Francis Minor argued:

  • Minor was a citizen of the United States and thereby entitled to any and all the “’privileges and immunities” that every citizen enjoys.
  • Suffrage was a privilege of citizenship, “in the highest sense of the word.”
  • Only the U.S. Constitution could deny this privilege and, if not found there, no other authority can exercise the right to exclude women.
  • The Constitution expressly declares that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
  • The Missouri Constitution and registry laws must yield to the U.S. Constitution.

While Francis only required five arguments in making Minor’s case, Chief Justice Morrison Remick “Mott” Waite required 34 in restating and rebutting her claims, concluding that suffrage was not mentioned in the Constitution. He acknowledged Minor’s stance about suffrage. However, he noted, if state laws excluding a woman’s right to vote are wrong, they ought to be changed, “but the power for that is not with us.”

Minor v. Happersett is not mentioned in Dobbs. In that case, the court held that the Constitution “does not confer a right to abortion,” thus overturning Roe and leaving abortion rights to the states and elected representatives.

Justice Alito recognized the 14th Amendment’s primary emphasis on liberty. He called the term “capacious,” providing “little guidance.” Thus, he observed, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”

Alito also acknowledged that the due process provision “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

Virginia Minor’s stance on suffrage is associated with liberty in the highest possible order.

Why it matters

Journalists should contemplate the meaning of liberty associated with the 14th Amendment. Our profession is based on that concept. As Thomas Jefferson stated in 1786, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

When constitutional law is on the docket, opinions ripple through society. They set precedents. They alter how we work, maintain well-being, raise families and pursue life goals and happiness. They help alleviate the specter of injustice and discrimination.

Rosemarie Aquilina, judge of the 30th Circuit Court in Ingham County, Michigan, and perhaps best known for presiding over the Larry Nassar sexual abuse case, states that the 14th Amendment is void of language that discriminates against or differentiates between the rights of women and men. “It allows each human unhindered freedom to privately make individual choices.”

“And yet,” she adds, “the 14th Amendment has been the vehicle used to deny women their naturally given liberty, forcing them to prove their worth, equality and equity.”

In rendering his decision, she asserts, Justice Alito failed to recognize “the deeply rooted concept” that any right not specifically denied is protected by the Ninth Amendment, which affirms unenumerated rights.

Aquilina calls the Dobbs decision “open season” on a plethora of inequities and privacy invasions. “That is not freedom. That is not the Constitution our forefathers envisioned.”

In the end, America would be much different today if section one of the 14th Amendment bestowed on women all privileges of citizenship, including the right to vote. They would not have had to wait until 1920 for the ratification of the 19th Amendment. The 14th also might have been viewed as providing equality for women, perhaps eliminating the need in the 1970s for the Equal Rights Amendment, which failed to gain state ratification.

Had Virginia Minor prevailed, democracy would have been enhanced along with the status of women in debates about justice, equity and yes, liberty, otherwise known as freedom of choice.

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Michael Bugeja, distinguished professor of liberal arts and sciences, is author of Interpersonal Divide in the Age of the Machine (Oxford Univ. Press) and Living…
Michael Bugeja

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