Unintended Consequences of the Fourteenth Amendment and What They Tell us About its Interpretation
The Fourteenth Amendment has been compared to “second American Constitution.” Indeed, it is said that more litigation is based upon the Fourteenth Amendment or its implementing statutes than any other provision of the Constitution. As one would imagine for such an important charter of government, there is a substantial—and some might say overwhelming—body of scholarship on the “intent,” “meaning,” and “understanding” of the Fourteenth Amendment.
Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.” What did they want to accomplish by adopting this amendment? This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.”
I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth Amendment; the unintended impotency of the Privileges and Immunities Clause; the unintended neglect, for almost a century, of the Equal Protection Clause to offer protection to African Americans; the unintended effect upon the rights of corporations; and, finally, in what is more than a turn of the phrase, the possibility that the framers “intended” some of the unintended consequences of the amendment. The examination of those unintended consequences shed light upon the proper application of the Fourteenth Amendment to modern issues.
Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell us About its Interpretation, 39 Akron Law Review 289 (2006).