You might have thought that the Constitution and the Bill of Rights covered all of the bases pretty
well. Unfortunately it took another hundred years or so before we got around to writing
an amendment that’s probably affected your life in more ways than you probably ever knew.
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The Thirteenth, Fourteenth,
and Fifteenth Amendments are all known as the Reconstruction Amendments. In order to regain
their representation in Congress and fully rejoin the Union, the southern states were
required to ratify these amendments. I have a hot date tonight so we’re
gonna [unzipping] have to make this quick. The Thirteenth Amendment is pretty short and
sweet. It ends slavery and involuntary servitude – except as punishment for a crime. Which is how
prisons get away with forcing their inmates to do manual labor. Which is a story for another time…
The Fifteenth Amendment is likewise fairly simple, it gave black men, former slaves,
and any male regardless of race the right to vote. Women would have to wait another 50 years
or so. Don’t blame me, I wasn’t there. Unfortunately many states started – and
continue – to try and find other ways to deny minorities the right to vote;
like poll taxes, or literacy tests, or felony disenfranchisement,
and most recently, voter ID laws. All of which disproportionately affect minorities,
but again that’s another story for another time. The Fourteenth Amendment is not so simple and
includes several moving parts. Constitutional law students spend entire semesters, even years,
learning about this amendment, but today we’re just gonna go over the important bits and how
they’ve affected your daily life. This is the most litigated amendment in the Constitution,
meaning that it’s cited as the reason for more Supreme Court decisions than any other. And
most of these decisions are pretty controversial. [Ironing board screeching] So buckle up your seat
belts kids cuz this is gonna be a bumpy ride. [Door closes] The Fourteenth Amendment contains
five sections but the meat of the amendment is contained in the first,
so we’re gonna go ahead and spend the majority of our time focusing on that one.
Now you wouldn’t think this needed to be said in the constitution,
but it did. Before the Fourteenth Amendment we had a bit of an issue with math of how to count
people – specifically how much each person was worth… more specifically how much each black
person was worth. Before 1868, each slave was worth three-fifths of a person. The Fourteenth
Amendment corrected this horrible arithmetic and made sure that each person was worth one.
The amendment also offers what is called birth-right citizenship. If you’re born in
the United States or its territories, or born to US citizen parents, you are automatically a US
citizen. America is one of the very few countries in the world that offers birth-right citizenship
and there have been many failed attempts to repeal it. One of the main arguments against it is the
idea of the “anchor baby” and “birth tourism.” This is the idea that people who are looking for
a fast track to citizenship will just have a baby on US soil, and subvert the normal naturalization
and immigration process. This argument has existed since before the amendment was ever
passed with the first landmark case involving the issue was in 1898 when a child was born to Chinese
parents living in the US and the Supreme Court upheld that the child was in fact a US citizen.
The primary purpose of this clause was to make all former slaves into citizens, no questions asked;
and to give them all of the rights and freedoms of this amendment as well as the rest of the
Constitution. The amendment overturned the Dred Scott decision, which said that black people
were not citizens and could not become citizens. In the years following the Civil War, once the
slaves were free, many southern states tried to enact what were called “black codes” in order to
restrict the freedoms and privileges of the newly freed slaves based on the idea that they were not
citizens – this amendment put a swift end to that idea… or at least, it should have. Birth-right
citizenship was also granted to Native Americans on a conditional basis by this amendment, but was
fully extended to them by a separate act in 1924. The Fourteenth Amendment also extends the Bill of
Rights to the states. [Nail clippers snip] Prior to this, only the federal government
was held to those rules. [Nail clippers snip] The federal government could not
impose [nail clippers snip] cruel and unusual punishment, or try you for the same crime twice,
or abridge your freedom of speech – but states could. [Nail clippers snip] This obvious
loophole needed to be closed by an amendment. The Fifth Amendment says that no person shall be
deprived of life, liberty, or property without [nail clippers snip] due process of law. This
seems pretty intuitive, but since this is the US Constitution, it was only applied to the US
Federal Government. The Fourteenth Amendment fixed this by adding in just a few words. No State shall
deprive any [nail clippers snip] person of life, liberty, or property without due [nail clippers
snip] process of law. This effectively [nail clippers snip] extended the entirety of the Bill
of Rights [nail clippers snip] to the states. The Due Process Clause does much more than that
however. And it can be split into two main ideas. Procedural due process is the due process that
we all know and love. It’s the process by which you can be arrested, charged, tried,
and have your rights taken away. And it’s pretty straight forward.
Substantive due process is a little more complicated,
and it’s the bit that law students spend forever trying to understand. So we’re gonna go ahead
and try to understand it in just a few minutes. Substantive due process comes into play when it’s
a basic human right – not something guaranteed by the Constitution or the Bill of Rights. To try and
be a little more clear, procedural due process is more about how, why, and when the government
can take away life, liberty, and property. Substantive due process is more about what
aspects of life and liberty can even be taken away in the first place, or how they can be limited in
order to protect the life and liberty of others. As an example, let’s go ahead and look at one of
the most controversial Fourteenth Amendment cases – Roe vs. Wade. The right in question here is the
right to privacy – as I’ve stated before this isn’t written anywhere, it’s interpreted from
several different amendments, but ultimately it’s a basic human right. Specifically in this case,
the medical privacy of the mother. However, the government also feels that it has a duty
to protect the life of the fetus. So in order to balance these two competing basic human rights,
the Supreme Court decided that a woman could seek an abortion up until the “point of viability”
– that is, the point where the fetus could survive outside of the womb. This established
the substantive due process right of the mother to seek an abortion if she chooses, states cannot
pass laws to restrict or interfere with that right. But that doesn’t stop them from trying.
This is a hot button issue, even forty years later. People, special interests, and lawmakers
have been trying to restrict this right by trying to redefine what viability is and when it takes
place. Some have tried to restrict access to abortions in other ways like requiring education,
or waiting periods, or unnecessary medical tests – many of which have been declared unconstitutional,
but many of which still continue today anyway. They’ve also tried to use completely different
laws to shut down or restrict access to clinics that offer women’s services, like using the
building codes of the Americans with Disabilities Act that require hallways to be a certain width,
or requiring doctors at women’s clinics to have hospital admitting privileges.
Whether you agree or disagree with abortion, you should be able to see an obvious parallel
and repetition of history here. The Constitution and the Supreme Court upheld a right for certain
individuals, and those opposed to those people having those rights found other ways to restrict
access. Whether it’s a poll tax, literacy test, doorway width, or transuterine ultrasound,
these are all ways that one group has sought to restrict the access of rights to another group.
So okay, let’s step away from that heavy topic and move on to
another – same-sex marriage. [Trimmer buzzing] In the Obergefell vs. Hodges case, the
substantive due process right in question was the fundamental right to marry. [Shower noises] The
Supreme Court found that this fundamental right extends to same-sex couples for four reasons:
The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
It supports a two-person union unlike any other in its importance to the committed individuals.
It safeguards children and families and thus draws meaning from the related rights of childrearing,
procreation, and education. Marriage is a keystone of
our social order – and there is no difference between same- and opposite-sex
couples with respect to this principle. They found that this substantive due process
right doesn’t infringe on anyone else’s right. Whether or not you believe that their ability to
marry infringes or demeans your own marriage is much more of an existential or religious
question, not a legal or constitutional one. And while they didn’t make this argument, they
could have made the case that same-sex marriage should have been federally recognized under the
Full Faith and Credit Clause of the Constitution. This is the clause that makes your Texas
driver’s license valid in every other state. Or declares your Hawaiian birth
certificate as a legal document in the entire country. So it could have been argued that a
Massachusetts marriage certificate should likewise be valid in every other state,
same-sex or otherwise. [Shower noises ends] However, they didn’t have to make this
point because their Fourteenth Amendment argument was made doubly strong by another
clause – Equal Protection under the Law. To put it simply, the equal protection
clause says that if some people in a state are allowed to do it, then all people are allowed
to do it. Whether it’s black people serving on juries or Chinese people running businesses,
if some people can do it, then all people can do it. Racial tensions were still high after the
Civil War though, so saying that people could do the same things didn’t necessarily mean that they
got to do them in the same places. In Plessy vs. Ferguson, they established the “separate
but equal” doctrine… which lasted about 50 years. It wasn’t until Brown v. Board of Education that
they decided that having people separated was inherently unequal. Even if the facilities and
teachers were the exact same quality, having people separated was socially harmful. So,
thanks to the fourteenth amendment we have desegregated schools.
The Equal Protection clause is not without controversy, even today. The 2000 Election between
Bush and Gore was decided based on the Equal Protection Clause. The entire election rested
in the hands of Florida, and the vote was so close that state law required a mandatory recount. I can
never remember how to tie these things when I need to. I always end up having to Google it.
However, every county had different rules on how to recount votes. Some of them required a
hand recount of each ballot, some of them only a machine recount, some of them counted hanging
chads, and some of them only dimpled chads. The rules were all over the place. And if this
sounds ridiculous, you’re absolutely right. I recommend watching the movie Recount if you
want to know just how ridiculous it really was. The Supreme Court decided that this violated
the Equal Protection Clause. All people in all counties should be treated the same way – all
votes in all counties should be recounted the same way. However, they also decided that there wasn’t
enough time to recount all of the votes – so all recounts should end and the original results will
stand. This effectively gave Bush the presidency and is still seen as one of the Supreme Court’s
strangest and most controversial decisions. You know, when I bought this suit I was 30
pounds heavier and it’s a lot cheaper to just put the weight back on than to go see a tailor.
America has always been on the path of more freedom, and more equality,
for more people. Once someone wants a right that someone else enjoys, it’s just a matter of time
before they get it. And the Fourteenth Amendment plays a major role in that progressive idea.
Oh… right... Okay so I was lying about the date. This framework for equality already exists in the
Constitution, no special law or separate amendment needs to be written in order to give equal rights.
All it takes is a group willing to voice their desire to be equal in order for it to eventually
come to pass. We have desegregated schools, same-sex marriage, women’s rights, and even
birth-right citizenship thanks to the Fourteenth Amendment. And who knows what other rights will be
granted or upheld based upon it in the future. So the next time you hear someone say that we
can’t give equality to a certain group because it would require a special amendment or that
the Supreme Court doesn’t have the power to rule on basic human issues, now, you’ll know better.
Hey guys if you enjoyed that video or you learned something, go ahead and give that like button a
click. If you’d like to see more from me, I put out new videos every weekend, so go ahead and
give that subscribe button some due process. I’ve finally gotten around to creating a
subreddit with my friend donnythenuts, so go ahead and join the conversation with us
over there. I’ll also be live tweeting during the Presidential debate Monday night so make
sure to follow me on Facebook and Twitter. I’ll probably also write up my thoughts
and post them to the subreddit afterwards. But in the meantime if you’d like to watch one of
my older videos, how about this one?
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