A Reply to Chief Justice Roberts
on the 14th Amendment 1

11 Feb 2024

London

by Matthew Eric Bassett

The 14th Amendment is not about restricting States' power. To say so is to the make the same flatfooted mistake as saying that the Civil War was about States' rights. It's true in a certain sense, but completely missing the point. It also misses the point to say, as some revisionist historians might 2, that the Civil War was caused by economic class tensions. Again, it's true in a certain sense, in the same way as saying that "the colour of the sky during the day is bright" is true, but it is so incomplete as to be irrelevant. The core "State's right" issue behind the Civil War is also the core "economic issue" behind it: slavery. 3 The Civil War was about slavery and whether or not States can rebel against the Federal government. The 14th Amendment is about slavery, and preventing rebellion.

Nominally the 14th Amendment mentions restrictions on States' powers, but read closely, it's about protecting citizens from abuses by the State, in particular slavery, as well as other methods to disenfranchise citizens to make them easier to enslave. It's first section might "restrict States' power", but that's like saying "the sky is not red". It's real purpose is to give rights to the citizens and to protect the citizens from enslavement or political situations that might lead to it. The second section is still about slavery, in particular, it is correcting the blasphemous error that my ancestors are 3/5th of a person. The fourth section nominally pertains to the economic powers of States, but when read in historical context it is clear that this section is meant to ensure that neither the federal government nor any individual State would pay for losses from the ending of slavery.

The outlier here is, of course, the third section, which does not "restrict" the power of any State. Rather, it restricts the rights of persons who have engaged in insurrection. An interpretation of this section that gives States the right to disqualify a person for President is not "at war with the whole thrust of the 14th Amendment". The 14th Amendment is not about restricting States' power, at least if one is not being reductive. It is about protecting the rights of people from the States and protecting the union from rebellion.

Notes

  • See https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_4d46.pdf, page 70 line 20 to page 71 line 11.

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  • See A People's History of the United States by Howard Zinn.

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  • It's a common misconception to think that the South needed slaves to produce cotton and keep their economies going. If this were true, it would be hard to argue that it was a necessity that they go to war to uphold slavery, as so long as the free States assured them that slavery would persist in their States then they could assume their economic interests would be protected. Yet this was not enough for them, as we can see in history with the multiple battles over whether each new State was a slave State or a free State. This was not about protecting the balance of power in the Senate, either, as, again, if it were, assurances or even explicit Constitutional protections for slavery in their States would have been enough. The thing to realize, and that is often missed, is that the chief economic export of the South States wasn't cotton; it was slaves (Marx, “The North American Civil War,” 39–40; “Marx to Engels,” July 1, 1861, i; also see a Feb 1861 speech by Georgia Senator Robert Toombs to the secessionist Convention). The "slave producing" States needed new export markets for their slaves. It was not enough that they enslaved black people within their borders, they needed to ensure that other States had economic motivations to continue to enslave black people as well, so they could continue to have buyers for their most valuable export. So, yes, the Civil War was about a clash of economic interests between the Northern and Southern States - the Southern States needed the whole country to want to buy their slaves.

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