I was looking at Kevin Levin’s site Civil War Memory yesterday and an article popped up in which the Speaker of the Alabama House was caught on video saying that he hopes “the Supreme Court will overturn Amendment 14.” The Speaker, Representative Nathan Ledbetter, was talking about redistricting that would deprive a Black majority district of its ability to elect a Black assemblyman. Kevin Levin does a good job of explaining the importance of the 14th Amendment to African Americans in Alabama in his post. As you likely know, the 14th Amendment recognized African Americans as U.S. citizens, required that they be treated without discrimination by their state and local governments, established Birthright Citizenship as a Constitutionally protected right, etc. I won’t try to discuss that at all. Go to Levin’s article if you are unsure.
The 14th Amendment was passed and ratified three years after the end of the Civil War. It not only lifted up African Americans, it has become the most cited Amendment to the Constitution since the Civil War in courtrooms around the country. It made same-sex marriage legal, it ratified George W. Bush’s election in 2000, and it stopped efforts to outlaw birth control. It is raised every day in American courthouses by advocates of both the Left and the Right to protect Americans’ rights. Ledbetter said in his statement that he “certainly hopes that the Supreme Court will overturn Amendment 14.” Other people have already taken Ledbetter to task for his disregard for the 14th Amendment, but I want to make a different point. A court, even the Supreme Court, cannot “overturn” an Amendment to the Constitution. A court can take an ordinary law, hold it up to the Constitution, and overturn the ordinary law if it conflicts with the Constitution. It cannot, however, strike down an Amendment to the Constitution.
Let us remember that a Constitutional Amendment, when it is ratified, is part of the Constitution. You can only change sections of the Constitution by the ratification of another Amendment rendering the prior Amendment inoperative. In my grandparents day, an Amendment was passed outlawing the sale of alcoholic drinks. A court could not overrule that. Congress passed an Amendment to withdraw the Prohibition Amendment which the states ratified. That is why I get to drink a beer when I watch the Mets (lost) tonight.
Reconstruction Republicans in Congress had seen Southern states pass Black Codes severely restricting the rights of Blacks. In 1866 the Congress passed the Civil Rights Act which gave rights to Blacks similar to what would later appear in the 14th Amendment. The Republicans were afraid that later Congresses might repeal the 1866 Civil Rights Act by a simple majority vote. So after passing the Civil Rights Act, they passed the 14th Amendment. To get rid of the 14th Amendment, 2/3s of both houses of Congress must vote to rescind it. Then it is sent to the states where 3/4 of all the states must support rescinding it. That is why the Congress wanted a Constitutional Amendment to prevent a latter-day white supremacist Supreme Court of Congress from withdrawing there protections extended to Black people. In other words, it is extremely difficult to withdraw the 14th Amendment and impossible to overturn it in court.
Below is the clip of Ledbetter making his statement.
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