In this episode, we discuss the 14th Amendment, and how it has been misused and abused over the years. We are joined by law professor Ryan Turnipseed to discuss the history of the amendment and the abuses it has caused.
00:00:58.320One of the biggest ones that everyone is talking about, of course, is the change to birthright citizenship.
00:01:04.580It is addressing a problem that the 14th Amendment has kind of created.
00:01:10.660The language of the 14th Amendment, I think, ultimately can be properly understood.
00:01:15.580But the way that it has been abused and manipulated repeatedly has created this scenario where anyone born in the United States, even if both of their parents are illegal, is suddenly a U.S. citizen.
00:01:26.540A lot of people can recognize the problem with that issue, but there are many other issues that have arisen from the 14th Amendment.
00:01:33.720It's an amendment that did something important early on, but has been interpreted over and over again to stretch the limits of the Constitution, and in my opinion, regularly break the limits of the Constitution.
00:01:45.380So, I think, with President Trump bringing a focus on some of the issues that the 14th Amendment has experienced, or at least the abuses that it has experienced, now is a great time to take a look at the history of the 14th Amendment.
00:02:18.160And I think today we're going to break into a subject that a lot of people probably aren't super familiar with.
00:02:23.980They know the 14th Amendment was somewhere in that batch of Civil War amendments, but they don't know probably what it all does and what's involved with it.
00:02:33.980So, I'm excited to dive into this today with you.
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00:03:40.100So like I was saying, I used to teach high school, but, you know, very often covered this period in history, including these amendments.
00:03:47.280We would often refer to the 13th, 14th and 15th amendment pass after the Civil War as either the Civil War, the Civil War amendments or the Reconstruction amendments, depending on how you're using that phrasing.
00:04:01.980But these are the amendments that came again at the end of the Civil War.
00:04:05.820The 13th amendment ended slavery in the United States.
00:04:09.000The 14th amendment did a wide swath of things that we're about to get into today.
00:04:12.840And then the 15th amendment granted voting rights to African-American men in the United States.
00:04:19.420Now, before we dive into the 14th amendment, I know a lot of people are going to look at the title or they're going to start taking the, you know, the different clips out of context.
00:04:27.560We want to just make it clear that the 14th amendment, one of the core things that it does is give citizenship to freed slaves in the United States after the Civil War.
00:04:38.500And this is not us giving any kind of commentary on that, not pushing back against that, not saying that was a terrible thing or something like that.
00:04:46.760Obviously, when you have a freed population in the United States with the understanding, at least of the franchise at that time, it made sense that they were going to become United States citizens.
00:04:57.400We can have a larger discussion about the nature of the franchise, the United States, its expansion, what that has done to the American constitution.
00:05:04.960But that is not the discussion for today.
00:05:07.420And in the context that we are discussing, the 14th amendment did indeed ensure that freed slaves were given citizenship.
00:05:16.180That was the original purpose of the text that people now abuse for birthright citizenship.
00:05:21.140We are not challenging that today, that that is not the issue at hand.
00:05:24.640So all of that said, Ryan, I think it would be best to start at the beginning with the 14th amendment.
00:05:31.680We'll get into the text and the clauses and everything in a minute.
00:05:34.420But for people who are unfamiliar, can you give a little bit of like the basic origin of the 14th amendment?
00:05:41.400How was it ratified, these type of things?
00:05:45.900And I think that we covered this in quite granular detail before.
00:05:51.600So just very basically, after the Civil War, the Southern states were back and the slaves in a good chunk of the territories were free.
00:06:04.380This presented a couple of issues for the North that had won the Civil War.
00:06:08.520Number one, if they're back in the country, their states, they never left, according to some of them.
00:06:16.200They are going to have representation and everything that comes along with that.
00:06:20.920So it kind of just seemed like if nothing was going to happen for the Northern radical Republicans in particular,
00:06:28.200the Southern states were just going to go back to exerting what they saw as a disproportionate amount of power over the country
00:06:35.680due to their representative and electoral power.
00:06:40.060But even more this time, because now every slave that was in these Confederate territories is, well, they're a freed man.
00:06:50.500So they would get the apportionment as well.
00:06:54.820It would basically, if nothing was going to happen, they just let the South back into the Union with the Emancipation Proclamation in full effect.
00:07:04.600Maybe even with the 13th Amendment passed, it's just going to make the South very powerful electorally.
00:07:40.960Even though they were in the Union, they never left.
00:07:43.780But they were also now going to not be represented.
00:07:48.000They were going to be led by military governors.
00:07:51.780And part of the conditions for readmittance into the Union was ratifying this 14th Amendment.
00:08:00.400And this 14th Amendment kind of looks like a Frankenstein Amendment.
00:08:04.360If you actually look at it, it has five parts.
00:08:08.620And they each are targeting something in the country at the time that it's passed to ensure that the radical Republicans can maintain their electoral dominance.
00:08:19.940That's sort of the very brief overview.
00:08:23.760This was forced onto the country illegally, if you will.
00:08:28.780We don't really have a constitutional process for militarily occupying states that never left, according to the accepted narrative.
00:08:38.680So but that's what that's what that's what's happened.
00:08:41.940The southern states would ratify this 14th Amendment, among other things.
00:08:47.180So that's this is the very basic history and context.
00:08:51.600Do you want me to go farther maybe into the modern day or?
00:08:54.940Oh, no, we'll we'll we'll go through the text and then we'll start kind of applying the modern day here, I think.
00:09:00.160But yeah, I know that that's a good history for people to kind of understand, again, the context into which the 14th Amendment is entering onto the scene.
00:09:10.600Like you said, this amendment, one of the reasons I kind of titled it, It's a Mess, is like you said, is a little bit of a Frankenstein Amendment.
00:09:16.620It feels like they really did stitch together a large amount of, you know, different aspects and try to cobble together and cover a lot of the things that they needed to address.
00:09:27.720As you point out, you know, there wasn't really a procedure for what if states left the union because, well, the country had been founded on the idea that people had the right to leave the government,
00:09:42.300that they were a part of if they thought it was no longer just, if it was no longer doing what was supposed to be doing.
00:09:48.920That's what the Declaration of Independence says.
00:09:51.620Now, there have been many different questions across, you know, the many different decades since the Constitution had been written as to whether or not states had a right to secede.
00:10:01.520That question was was asked many times over, sometimes answered in the affirmative, sometimes answered in the negative.
00:10:06.900But like you said, there was really no doctrine for, you know, defeating states that had left and had seceded in a war, putting them under military occupation and adding them back.
00:10:19.480So in a lot of ways, the union was kind of making this up as they go.
00:10:23.360And once, you know, the states, if they wanted to have any political participation in the process after they had been defeated, the southern states, if they wanted to rejoin the union and have any voice, then they had to ascend to the 14th Amendment.
00:10:37.880So, again, many people can, you know, point to that and say, well, that was a problem that makes it illegitimate.
00:10:43.120Other people would say, well, what else are you supposed to do?
00:10:45.360These are the political realities after the Civil War.
00:10:47.880Again, we're not here to to litigate that today, but that is just the historical context in which we're going to look at the the 14th Amendment.
00:10:58.460Now, the 14th Amendment, as you point out, has has five sections.
00:11:04.540You know, Section five is pretty obvious.
00:11:07.620It just says Congress has the power to enforce by appropriate legislation the provisions of this article.
00:11:13.700So it's it's just going to say Congress can enforce the rest of this.
00:11:17.880Section one is where all of the significant clauses in the 14th Amendment really reside.
00:11:25.160And that's the one we'll probably read out and pay most of our attention to.
00:11:29.300Is there anything in in sections two, three and four that you want to touch touch on?
00:11:35.140Obviously, Section three usually isn't one that is particularly relevant.
00:11:39.400However, it did come into play with with Donald Trump here recently, because many you heard this many times, probably from the media.
00:11:48.140It might have been the first time you'd ever paid attention to this clause in the 14th Amendment.
00:11:51.960But in Section three, there is specifically a clause saying that people who have engaged in insurrection and rebellion cannot be, you know, holding specific offices.
00:12:02.320And this was what people were trying to say applied to Donald Trump, that he had read he had led an insurrection.
00:12:09.020That's why the media settled on that specific term, even though you never heard them say it previously.
00:12:13.920They wanted to to exploit this section.
00:12:16.660But is there anything from sections two, three and four that you wanted to focus on before we go to Section one?
00:12:21.300Not on the stream, I would just say to the audience that to kind of really imbibe the at least the narrative that we provided here, that this was a Frankenstein amendment that was that is firmly contextualized.
00:12:32.680And at the end of the Civil War, you can kind of read through those sections and just see that it's very clearly targeting the newly readmitted states or perhaps the states that never left.
00:12:45.040It's kind of a kind of a conflicting narrative from the from the radicals during the Civil War.
00:12:50.800You can read those sections yourself and you can kind of see this is a this is very much a Civil War amendment that's that we've just drug into the modern era kicking and screaming.
00:13:03.220Yeah. And, Brian, if you have a chance, if you can increase your volume a little bit, that would be helpful.
00:13:07.080But the yeah, it's very clear, you know, the 13th Amendment very obviously is targeting the the abolition of slavery.
00:13:16.020The 15th Amendment is very clearly giving the right to vote to African-American men.
00:13:21.560The 14th Amendment is much more of a hodgepodge.
00:13:24.760It really does feel like, well, we needed to stuff everything that was applicable to the the kind of the end of the Civil War.
00:13:33.720And we're going to try to, like, tidy this up and put it together.
00:13:36.720And I don't think it was very successful in that.
00:13:38.940But, yes, as you point out, this was everything about this amendment.
00:13:42.740If you look at Section four, it talks about a debt incurred during wars, but not the debt if it was if it was created during a rebellion or insurrection.
00:13:51.760Three again is about rebellion and insurrection.
00:13:54.460You can see very clearly that this entire 14th Amendment is in the context of that Civil War and trying to tie up those loose ends.
00:14:03.460So that's going to be really important when we look at Section one, which today regularly gets involved in many different acts aspects of our law.
00:14:13.180The fact that we're kind of pulling those things that were really very specifically trying to address issues that were only applicable right after the end of the Civil War and the fact that we're trying to slap those as some kind of principle onto given law cases today really shows a problem probably with with parts of our judicial process.
00:14:36.680Like we said, this is the one that is going to have most of the key clauses that are regularly disputed or applied in modern constitutional law.
00:14:46.200So we'll just start at the beginning here.
00:14:48.180Section one of the 14th Amendment says all persons born or naturalized in the United States and subject to the jurisdiction thereof.
00:14:56.680That's going to be the key phrase that the Trump administration is focusing on right there, subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside.
00:15:10.460So this is the birthright citizenship clause that at least has been interpreted as the birthright citizenship clause.
00:15:18.500And again, as we said, its very specific purpose at the time of it being written was to clarify that all states in the Union, including the southern states, would need to grant citizenship to freed slaves.
00:15:32.720The 13th Amendment had freed those slaves, but the 14th Amendment was going to grant citizenship, make sure that once those slaves, you know, a lot of questions of, OK, this person was a slave.
00:15:45.920They're free now, but they weren't a citizen when they were a slave.
00:15:50.140That was the question that needed to be answered.
00:15:52.880And so that was what this first clause was attempting to point to.
00:15:57.120You, yes, you were born or naturalized in the United States and subject to the jurisdiction thereof.
00:16:03.040Slaves were obviously still subject to the jurisdiction of the United States, even if they weren't citizens when they were or considered citizens when they were born.
00:16:10.880Therefore, these are people who will continue to or will become United States citizens on the passing of the 14th Amendment.
00:16:19.200Do you want to get any thoughts on kind of the that first citizenship clause and the way it gets applied today?
00:16:25.340Not necessarily the way it gets applied today, but just for historical continuity, everyone, in fact, I think they probably learn more about this than any details about Reconstruction.
00:16:36.000Everyone kind of learns about the Dred Scott case in their American history class because it's scary to modern ears.
00:16:44.880You know, look at how terrible it was.
00:16:46.460But this is a that was sort of the legal precedent by interpretation of the law that said that blacks, slave or free, could not have citizenship in the United States.
00:16:57.540This is the radical Republican response.
00:17:00.980Or this be a little over a decade later, if I remember correctly, codifying into law using the that branch of government and basically just saying, actually, they are citizens.
00:17:12.040And the Supreme Court couldn't really do much because its power base had been militarily occupied.
00:17:19.540So this is this is sort of like the political dynamics of the time in the modern day.
00:17:24.940Most people don't cite the 14th Amendment to discuss the citizenship of black people, which is kind of how how far removed from the context we are.
00:17:33.920We've we've reached the sort of simulacra where we've like we had the original and then we had something referencing the original and then we have we've just divorced it from its context completely now.
00:17:44.980Right. And that is why we have the current executive order that we have, because this very obvious application.
00:17:52.340And again, you know, you point out the historical context as to why it was being drafted.
00:17:57.140But but, you know, again, however you feel about the political realities of that time, that was very obviously its intention.
00:18:04.320So if we have any interest in the intention of that in the context of it, that's what it is.
00:18:09.440The fact that that amendment, as you point out, has been plucked entirely out of that context.
00:18:13.600No one talks about it in reference to black Americans and their citizenship, but instead it is always brought up as to whether or not, you know, a Chinese woman who has purchased a birth tourism, you know, trip so that her child can have dual American and Chinese citizenship.
00:18:31.240Like whether that's valid or whether illegal immigrants who have been smuggled into the country by a coyote, by a cartel looking to do human trafficking or traffic drugs, whether if they if they have a baby and suddenly that baby is an American citizen or whether, you know, two two workers overstaying their visas from a foreign country and then have children.
00:18:52.380All of a sudden, all of a sudden that that child is a U.S. citizen.
00:18:55.500And because these children are all created or granted citizenship, they are then basically create that is the anchor baby.
00:19:03.840Right. This is where you get the phrase anchor baby, that once that child is given the citizenship, then all of their than their parents have a claim.
00:19:12.720You know, they are more likely to receive the ability to stay in the country, less likely to be deported, more likely to receive some form of.
00:19:22.380Visa, in order to stay inside the United States.
00:19:24.780And this means not only that the child that has the citizenship and the parents that are using that child to anchor themselves in the United States, but then we get the chain migration, their children, their parents, their grandparents, their aunts, their uncles.
00:19:39.620All of a sudden, everyone who is connected to this birthright citizen has the ability to get some level of priority into entering the United States legally or more likely if they're already here expediting their ability to receive proper documentation.
00:19:55.020And so this the application of this has just been a disaster.
00:20:00.720And if Trump is going to face a lot of court battles over this one, this will probably be the most significant court challenge he will receive of all of his executive orders.
00:20:10.260But if he can get this to stick, and I think, again, there is a very good case that his understanding of the 14th Amendment, that his administration will argue that that is the correct understanding.
00:20:22.420And therefore, however, however, we feel about the 14th Amendment in general, that that that you will be able to at least rectify some of the abuse done through this clause by birthright citizenship.
00:20:33.240Right. And as you mentioned earlier, it's that specific that specific group of words and subject to the jurisdiction thereof that's going to be the the the the fulcrum of this whole thing, because clearly, now that we understand the context, the historical context, why why was this written the way it was?
00:20:54.420The purpose was not just to make sure that anyone could come over here, have a child, and that child would then become a United States citizen.
00:21:01.000The purpose of this was to basically enfranchise a formerly enslaved population that was denied citizenship on the on the judicial level.
00:21:12.320And then that's kind of why the rest of this follows is to make sure that those people are then protected with the force of the law.
00:21:18.820No state shall make or enforce any law which shall bridge the privileges or immunities of citizens.
00:21:23.040So that's to make sure that you can't have a legal system of second and third class citizens, even though they are they're enslaved.
00:21:29.120This is a this is one one method that you can find in, say, European countries was to just have different legal classes of citizens with different privileges and immunities and whatnot else.
00:21:40.360And then it just keeps going that without the due process of the law is another famous one that feeds into this as well.
00:21:50.800That's just to make sure that if it if it does occur that a a citizen of the United States once again,
00:22:00.240the population that was in the population that was in mind when this was written was newly newly freed black now citizens,
00:22:08.180this was to make sure that they wouldn't just be, say, screwed over by a local court system.
00:22:12.980That that was the idea if you give this the the most positive reading that you can.
00:22:17.360Instead, what we end up finding is that each of these sentences have been pulled apart out of context and quite frankly,
00:22:25.360out of context within the same section of this amendment to just found their own legal doctrines so that the courts and the
00:22:33.100the federal government can do whatever they want, which, you know, it's a question as if that's the is that the ultimate end of all law.
00:22:42.080I don't know, but that's what this is now.
00:22:45.620Well, and that's a lot of what we're going to talk about here.
00:22:48.460So let's look at our as you said here, we've got the privileges and immunities clause.
00:22:53.500No state shall make or enforce any law which shall bridge the privileges or immunities of citizens of the United States.
00:22:59.960Now, this clause has remained relatively dormant because it only applies to privileges and immunities that are granted at the federal level.
00:23:08.240The state level privileges were not generally applied through this.
00:23:12.840However, it does team up with the next one here, which is, as you pointed out, our due process clause.
00:23:18.880Nor shall any state be deprived, deprive any person of life, liberty or property without due process of law.
00:23:25.960And these two clauses are the ones that I would you think it would be fair to say basically abolish the 10th Amendment.
00:23:34.440Abolish is kind of understating it a little, completely reversing the 10th Amendment, perhaps.
00:23:43.420Utter destruction of the 10th Amendment.
00:23:47.020Raising insulting of the earth of the 10th Amendment.
00:23:50.440That's getting a little bit closer to what's actually happened.
00:23:53.940And it took however many generations, probably three or four, for the 10th Amendment to go from one of the most cherished amendments to, you know, slowly getting subsumed.
00:24:05.620And then by another couple more generations, it's just no one knows what it is anymore.
00:24:36.100There were attempts to make both of those do the same thing, which was, what if we applied the Bill of Rights, which is supposed to regulate Congress on the federal level, make sure that Congress can't do anything against people within the country or different states.
00:24:55.080What if we made that apply to just everyone so that state governments, county governments, or whatever else couldn't actually violate what's in the Bill of Rights, even though that was originally meant for Congress on the federal level?
00:25:14.100There was an attempt to make both of them do the same thing.
00:25:17.440The Privileges and Immunities Clause, as you said, was made dormant by the Slaughterhouse cases.
00:25:22.620The audience can go and read those on their own time.
00:25:26.800It's not the most important clause because it was gutted, is kind of the general narrative around it.
00:25:33.300The Due Process Clause, though, is why your state government can't establish a church anymore, even though we have established churches for the first few generations of the country.
00:25:42.700And that's because that violates the First Amendment on the state level, something that wasn't supposed to exist in law,
00:25:51.040because we say that if your state establishes a state church, that violates the First Amendment, which is necessary for the due process of the law.
00:26:02.760We've sort of just inverted our whole legal system using something here that was meant to be a firmly historical amendment that probably wasn't going to do much else.
00:26:16.200So the writers thought, then, enfranchised the blacks themselves.
00:26:20.180Right. So we did an entire episode on this, the incorporation doctrine, as it's usually called.
00:26:26.720And so if people want to get, you know, an hour long explanation of the incorporation doctrine and what it has done to kind of the understanding of the Constitution and the way that the states are supposed to function and kind of destroying federalism as we understood it, they can check that out.
00:26:45.160The most important thing here, as you point out, is this was initially not understood this way.
00:26:50.560And to be clear, the 14th Amendment radically changes the way that constitutional work, constitutional law works in the United States.
00:26:59.300Again, you might think that's a good thing. You might be think that's a bad thing, but it is a fact.
00:27:04.720And so that's something we need to understand. You know, the when we give the eras of regimes, if you've ever heard Curtis Yarvin or if you've ever seen my episode on this, you have the you have the articles of confederation.
00:27:19.200You have the original Constitution. You have the 14th Amendment regime. You have the the FDR regime.
00:27:26.680And then I would add the civil rights regime after Curtis Yarvin didn't add that. But those are kind of the regimes, as I would understand the the the eras of the Republic, if you're using kind of the French understanding.
00:27:38.060And the 14th Amendment is one of those pivotal points. It is as important, I think, if you know, as moving from the Articles of Confederation to the Constitution or moving from the Constitution, as we understood it, to more of an FDR bureaucratic managerial governance or the Civil Rights Act.
00:27:56.480Like it has that level of shift in the way that is understood. But as you point out, whether that was the maybe that was the original intention. Right.
00:28:05.220Maybe the after the South lost, the North just wanted, OK, we just rule the South now. They've lost all the state rights. We're throwing that away. We're in charge now.
00:28:15.960The end. And that's what the 14th Amendment is doing. But that is not really how it was applied. Initially, it took a very long time. Right.
00:28:22.660Many of the incorporations didn't occur into well into the 1900s.
00:28:28.020So it's not like they wrote the 14th Amendment and then immediately it was just understood that, oh, well, this one section incorporates everything.
00:28:36.520The states don't have the ability to run themselves at all. The entire Constitution, you know, makes the law for everything in the United States.
00:28:44.380That wasn't actually the process. Right. There was a very slow transition after this clause was created.
00:28:50.400Right. And that's you can kind of see that after the Civil War, there is a evolution in our legal philosophies here where before the Civil War, there was a very strong emphasis placed on decentralization and federalism.
00:29:08.400Federalism. Those aren't like formal laws or principles that you can find in writing, but it was generally understood.
00:29:13.860That's the guiding principle. So that's generally what should be preserved.
00:29:18.140It should be our law should be viewed in that context.
00:29:21.820After the Civil War, you start getting a lot of different and new legal philosophies that are not so kind towards decentralization or federalism or any of these other antiquated ideas is kind of how they would come to be viewed.
00:29:36.300But that didn't take hold in law until the 20th century, which just so happens to coincide with the rise of the managerial class, as you were alluding to, which may have a little bit of overlap with the legal class in the country, especially during that era.
00:29:57.700So that class, the upper middle class, if you will, of lawyers, managers and various other people, that wasn't as large as it is now.
00:30:08.880And those people tended to know each other. Their ideas would kind of flow in the same circles.
00:30:15.160So it's not it's not entirely unexpected that we would get the managerial interpretation of our 14th Amendment here completely ripped from context, only made to serve one function, which is to make sure that foreign populations, which shouldn't have citizenship, get citizenship for free, basically.
00:30:34.880Yes. And again, Samuel Francis, Sam Francis talked about how important it was to the managerial regime to kind of deconstruct all these previous legal and social arrangements.
00:30:50.280And so the text of the law remains the same, but a revolution occurs under the text of the law.
00:30:58.280And this is probably the most important thing for Americans to understand, because, again, I taught history.
00:31:06.520I'm I'm super familiar with all the narratives about that.
00:31:09.340I have I have I've taught the narratives about this.
00:31:11.480But but but because in the United States, we didn't have a revolution every 60 to 80 years, we tend not to recognize the revolution that happened under our feet.
00:31:24.420And so we don't see the radical change between the articles and the Constitution.
00:31:29.720We don't see the radical change between the Constitution as it was and the 14th Amendment Constitution.
00:31:35.380We don't see the radical change between that 14th Amendment Constitution and then the managerial application of it.
00:31:42.600We have one of these revolutions every, you know, 60 to 80 years, but we don't call them that.
00:31:49.640And so because we don't call them that and because the legal that, you know, the clauses stay there.
00:31:54.040No one changed the words in the 14th Amendment, but they took the 14th Amendment apart piece by piece, especially the Section one.
00:32:04.340And they started to say, well, actually, maybe this piece means this over here and maybe this piece deconstructs that over there.
00:32:11.200And they just kept pulling out little individual pieces of it and saying, well, actually, this isn't a specific clause written to address a specific problem and a specific historical context.
00:32:24.620Each one of these is an abstract principle that we can apply to our own ends.
00:32:33.380And this is the problem kind of always with having a strict, you know, attempt to just focus on the text.
00:32:41.720Right. This is how people abuse the Bible. Right.
00:32:44.120They pull out. They don't use any of the context.
00:32:47.140They don't want to know what people were doing at the time.
00:32:49.340What did people believe? You know, what was the actual tradition of the time?
00:32:52.820What was it addressing? No, they just want to pull out, you know, one little passage and say, oh, well, this this says what I want it to say.
00:33:00.440So it it says that you have to be kind to the stranger. So that means infinite illegal immigration.
00:33:05.220Right. Like this is the way that people use the Bible.
00:33:07.780And unfortunately, it's the same kind of abuse that happens with the United States and its Constitution.
00:33:13.140And so while we might look at these words in their historical context and say, well, of course, this is obvious.
00:33:19.040The problem is that it has been wildly distorted.
00:33:22.500And the more hodgepodge and uncareful the language of the amendment, the easier it is to abuse.
00:33:29.420And that's why I think the 14th Amendment is one of, if not the most heavily abused amendments in the entire Constitution, because it was so easy to pick apart.
00:33:39.420Now, again, that doesn't mean that in its context, there wasn't some degree of necessity for what it was doing.
00:33:44.920But it it makes it very easy today for people to pull it apart.
00:33:50.080And that leads us to our last clause in the Section one of the 14th Amendment, nor deny to any person within its jurisdiction the equal protection of the law.
00:34:00.140And this phrase right here, we're going to get into due process as well, because it's been abused.
00:34:05.300But this phrase right here, equal protection of the law, has been used in everything, like every case that you can think of that has just been an absolute disaster.
00:34:21.620So, Ryan, do you have any thoughts on that phrase before we get into the cases themselves, or do you just want to move to examples?
00:34:28.720It's it's just going to be another rerun of everything you were just saying.
00:34:32.780Equal protection means something completely different in the 1860s and 70s than it does with the sort of very modern progressives coming out of the West Coast and part of the East Coast.
00:34:44.000And the mid to late 20th, yeah, 20th century.
00:34:49.040So this is a it turns out that if you make the written law the the one and only foundation and guide for a country, the written law, you know, the words don't change on the page and you can change the meaning at will.
00:35:04.700So this is this is kind of the lesson that we learn here.
00:35:08.160Maybe maybe writing down the proposition doesn't actually form a coherent nation just because meanings of words change over the time.
00:35:16.800That's that is something something that maybe a few a few people in American politics now should consider when they when they argue for these things.
00:35:26.080And something else to point out as well, just to prevent any any hardcore pendulum swinging from one side or the other, we did have a functioning country under the 14th Amendment, even after the turmoil of the Civil War, that didn't have all these modern redefinitions and meanings.
00:35:45.800And there's a very important implication there, which is it really does not matter what the written law says.
00:35:52.000If you have people that are seeking to abuse it and rule over you like tyrants, you can have as many amendments as you want.
00:36:00.980But as long as the wrong people are interpreting and enforcing them, your country will just dissolve.
00:36:07.780Speaking of which, yes, and that's precisely right.
00:36:12.760And this is why Joseph de Maestro warns so much about what gets written down in constitutions.
00:36:19.120And again, this was an argument that the anti-federalists or rather that the federalists had against the anti-federalists, even though I think largely anti-federalists had a lot of good points there.
00:36:28.040One of the things that they said is if you make a bill of rights, if you write down these amendments, people will assume that what they have is limited to them,
00:36:38.460that the words themselves are somehow kind of bringing in everything that is involved.
00:36:42.940And Joseph de Maestro specifically warns us that when we try to enshrine principles and constitutions, we immediately open them up to people who would manipulate those words, right?
00:36:53.940So principles, traditions, customs, folkways, they are far more robust, actually, than a written constitution.
00:37:04.200Now, that doesn't mean that at some point you don't need to write down certain aspects of a constitution.
00:37:17.060However, the warning was the more you need to add, the more specific you need to get, the more that you need to put on paper, the more you will open yourself up to manipulation.
00:37:28.700The less that you can rely on the traditions, the folkways, the customs, the culture, the expectations of your nation,
00:37:36.360and the more you have to rely on the word as written down, the more you will make yourself subject to lawyers.
00:37:43.860The more, when we say the rule of law, we usually mean rule by lawyers, right?
00:37:48.540Actually, it's the way in which you can stretch and pull the amendments.
00:37:52.720And if you don't think that's true, just look at what President Trump is now going to be facing with birthright citizenship, right?
00:37:59.620This clause was never meant to create the anchor baby phenomenon, not even close.
00:38:05.700It never in their wildest dreams was that the way that this was going to be applied.
00:38:10.160And yet today, we are going to get full-throated, firing on all cylinders, defenses of that understanding, that anchor baby kind of clause, that interpretation of it.
00:38:23.740That is going to be acted on as if it is gospel, as if that is core to the American identity, even though it was never intended to be in the 14th Amendment at all,
00:38:35.180it will be argued as if it is the only thing that has ever defined the United States.
00:38:40.020And that's what you need to understand, is if you let people change the narrative on the tradition, then the words in the 14th themselves are not sufficient.
00:38:50.700And so there is something to the idea that being literal about the text of the Constitution might have some benefits.
00:39:01.020But if you are relying on that itself to impose the will of the people who originally wrote the Constitution or its amendments,
00:39:09.780then you misunderstand the nature of human beings and the way that they interpret law.
00:39:15.880Right, especially the nature of those that interpret law for ill of others.
00:39:23.700You would think that the conservative movement, I grew up hearing the conservatives were the people most in tune with how human nature works.
00:39:31.900You would think that this fundamental fact of there are bad people and they will misappropriate things that you have written down to make sure that bad things won't happen,
00:39:40.240you would think they would understand that here, but unfortunately, still seems to be a lesson to be learned, but perhaps we'll learn it.
00:39:48.700That's our hope. That's what we're here to do.
00:39:51.060Hopefully everyone grasps that lesson. That's why we're doing what we're doing here.
00:39:54.500So, I'm going to just go, I'm going to list off a whole bunch of cases that have cited the Equal Protection Clause.
00:40:02.820And I want to make it clear, this is by no means exhaustive.
00:40:07.000This has been cited by hundreds, if not thousands, of judges, you know, in many different ways.
00:40:13.960We're just hitting the highlights, the ones you might know, the ones that you know will be influential.
00:40:18.140So, the Equal Protection here has been cited in Brown v. Board of Education, Loving v. Virginia, which is the case when it comes to interracial marriage,
00:40:28.300Roe v. Wade, Bush v. Gore, the 2000s election case, Obergefell v. Hodges, which is the gay marriage case,
00:40:36.440and Students for Fair Admissions to Harvard, which is the case that theoretically ended affirmative action.
00:40:42.500So, just from that wide swath, you can see that it applies to segregation, interracial marriage, abortion, elections, gay marriage, and affirmative action.
00:40:56.320It has been used in cases that are wild distortions of, you know, kind of the founders' intentions.
00:41:03.580It has been used for conservatives to defend some of these things.
00:41:08.060It has been applied to all of these cases, but the continuous thing we see is that it depends on how the 14th Amendment is being applied, right?
00:41:16.840So, it's very unlikely that some of the justices who are trying to apply the 14th Amendment one way in Obergefell would have applied it the same
00:41:25.680if they had been on the court during, you know, Students for Fair Admissions v. Harvard.
00:41:30.180Again, same amendment. Nothing has changed. Nothing about that clause has changed, but it can vary, very, you know, widely from Brown v. Board of Education to Bush v. Gore.
00:41:43.440Again, it just depends on the justice. It depends on the day. It depends on the context.
00:41:48.500Same clause, but wildly different results when applied.
00:41:51.600Right, and if you want a value-neutral heuristic, I'm not commenting here on what I think should happen.
00:41:57.520If you want a value-neutral heuristic for, is this law functioning as intended,
00:42:02.720just go through the mental exercise of trying to explain how it is being applied in the modern day to the people that wrote it.
00:42:10.600And if you think that they would be violently repulsed by whatever is happening,
00:42:14.940then it probably isn't being applied how it was intended to.
00:42:18.860It's probably been ripped out of context.
00:42:20.960You can apply this to multiple laws that aren't the 14th Amendment.
00:42:23.560You can apply this to basically the entire Bill of Rights.
00:42:27.660And if you just imagine this is how we apply it today,
00:42:29.980I will try to think about explaining this to any of the founders.
00:42:35.140And will it make sense to them, number one?
00:42:37.140Would they agree with this, number two?
00:42:38.660Could they even conceive of this thing happening, number three?
00:42:41.180If the answer is no to any of those, something has changed.
00:42:48.580And in our modern context, we can use other contexts that we have now.
00:45:09.660It's because they can either predict very reasonably what would happen if you did just have this completely loose definition of birthright citizenship,
00:45:20.560or they can observe it happening in countries like, say, the United States.
00:45:24.000It's not quite that desirable if you have a very high-trust, homogenous population that's based around history, cultures, and traditions,
00:45:34.900something that's fairly unchanging over time.
00:45:38.340It's not really advantageous to try to demolish all of that in favor of this very liquid, unstable concept of citizenship.
00:45:49.760So, this is, you can see this in the rest of the world as well.
00:45:52.060Look at what the other nations are actually doing.
00:45:56.000Very, very few people have this interpretation of this is what a citizen is.
00:46:00.420They were born inside of these lines, and therefore they are now part of this country as a full citizen,
00:46:06.820just the same as someone who's been here for dozens of generations.
00:46:10.920No one else really thinks like this except for us in the new world,
00:46:14.780and, of course, the other countries in the new world that have this idea are socialist hellholes, quite frankly.
00:46:38.560But, other than that, just on the case that's inevitably going to happen between the Trump administration and the leftists in the judicial system,
00:46:49.920as we kept mentioning, and subject to the jurisdiction thereof is going to be the key fulcrum.
00:46:58.000And that's because, in fact, it was written into this.
00:47:02.280We kind of just have been subjected to a legal class that has tried to memory hold that specific part of the clause.
00:47:11.020It's very hard to derive birthright citizenship from this,
00:47:14.420because you have to say that, therefore, anyone inside of the United States is fully subject to the jurisdiction of the United States.
00:47:20.780If you said that in any other context, there would be quite a few countries in the world that would be really angry at us.
00:47:26.640Right, right. Your dual citizenship is immediately invalidated,
00:47:31.520and any of your citizens that happen to be visiting the United States are entirely subject to our jurisdiction.
00:47:38.760You have no power here. Your citizens have no rights once they enter into the United States, because they're under our jurisdiction, right?