politics

After reading this article, Kirk has a very clearly superficial understanding of the 14th amendment. Some people here may have heard along the way something along the lines of "we're a collection of soverign states" or some bullshit like that. And that mostly true pre-14th amendment, the 14th amendment was the thing that changed that.

Remember, we fought a civil war and the 13th, 14th, and 15th amendment are the ramifications of that war. The 13th answered, finally, the whole 3/5th comprimise thing that the Constitution indicated that Congress was supposed to fix sometime in 1808. Obviously "kicking the can" has been a tradition of Congress for quite some time.

provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article

And the 15th amendment grants Congress the power to slap State laws that try to enforce themselves via racial pretexts. Remember, Congress cannot directly legislate elections with the exceptions that are carved out in the Constitution. State's like to pass all manner of laws with justifications like "it's for the children" or whatever and the entire point of Courts looking at things Congress brings to bear is to check for "pretextual" arguments. Pretextual arguments being ones that "we say it's for this purpose, but in reality it is for this other purpose that we're not allowed to pass laws on".

Case in point, Tennessee's recent "Pride parade ban" law that was supposed to be "for the safety of the children" was tossed out as pretextual and no Federal Judge could find in the text how the law wouldn't be abused to rob people of their first amendment right and there were lots of "clues" that robbing a particular group of people of their free speech was the actual intent. Remember, we've got 200+ years of history of States saying one thing and actually doing the other, it's not a recent invention and something the Federal Courts have to always be on the look out for.

So that out of the way the 14th amendment changes fundamentally how the actual law is applied to people. Which is interesting that Kirk is all about changing it because it's literally the 14th Immunities clause that was used in McDonald v. City of Chicago to strengthen the 2nd amendment's right to gun ownership. So, for all the folks saying we need to review the 2nd if we're going to review the 14th, no worries, because that would become automatic in a review of the 14th since SCOTUS has now connected the two.

The 14th amendment is so litigated because it fundamentally changes how the US operates. It empowers the Federal government while depowers the States, when you take the context of the Civil War into account, the reason why Congress thought the 14th was a good idea becomes clearer.

So the vast litigation of the 14th is to ask the question, "How much power did the 14th hand over to the Federal government and remove from the States?" And we're still answering the multitude of questions coming from that. So Kirk wondering why so much gets answered by "the 14th Amendment!" is because he lacks understanding what the 14th does and why it was pitched in the first place.

There's always going to be a power struggle between Federal and State governments. For the first part of the US, deferrence was given to the States and it resulted in a war. So to fix that issue and hopefully prevent yet another war, that giving the States benefit of the doubt was "slightly" removed and penalities for those trying to "overthrow" the Federal system were explicitly enumerated. Because, those at the time understood, our form of government has this power struggle between Federal and State and that one civil war wouldn't be the end of that struggle.

Does the 14th answer all the problems with that struggle? No, of course not. But it puts the ball in the Federal government's hands first to solve it going forward. Because putting it first in the various States to solve....well it just didn't quite work out the way we had all hoped. And of course, over the course of history we've had various flavors of Judges who want to apply that wisdom to various cases to various degrees. The power struggle between Federal and State still exists, the entire point it to have an avenue to resolve it without a need for breaking out the horses and cannons.

Now I say all of this and let's all take a quick look around to see how well that's going. Yeap. That's why Judges matter. But back to the subject at hand, Kirk is trying to read the 14th without any context or understanding of application, which that's what we would expect from a fifth grader reading it for the first time. So we all should treat Kirk's opinion as such.