The United States has a stain upon it. The Three-Fifths Compromise—a moral failure which defined a whole class of human beings as less than persons—was America’s original sin the moment it was ratified.
The nation waged a civil war over that evil, then sought to wash it away by adding an amendment to its Constitution. Broad in its application, the Fourteenth Amendment promised due process and “the equal protection of the laws” for all American citizens. It was an attempt to protect former slaves from being excluded from participation in society.
The Fourteenth Amendment is thus a compensatory amendment. It has provided grounds for the recognition of racial equality—a recognition of the dignity of human nature as such—but it has done much more, and indeed, much less. It has provided nearly unlimited protection of rights for whatever group of persons could manifest any grievance of any kind to a sympathetic majority of the Supreme Court, but without any rooting in a concept of what constitutes a human person.
In a series of decisions in the last fifty years, the Supreme Court has used the Fourteenth Amendment as the backbone of problematic opinions that have slowly unhinged the very liberty that it originally sought to secure. Arising from the court’s interpretation of the amendment were new judicial powers that tended to absolutize the liberty of the individual.
In the opinion for Griswold v. Connecticut in 1965, the majority cited the Fourteenth Amendment as a protection against a statute in Connecticut which banned the usage of contraception. In his dissent, though, Justice Hugo Black warned of this new application of judicial power:
If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “[collective] conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court.
Directly following this case, Roe v. Wade drew on the Fourteenth Amendment in the majority opinion. However, Justice William Rehnquist also questioned its application in his dissent:
The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
In Planned Parenthood v. Casey, we see Kennedy’s well-known mystical definition of liberty, and at its heart, the Fourteenth Amendment:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
In Obergefell, Kennedy again provides the majority opinion that that the Fourteenth Amendment was written to protect liberty, but now it’s quite clear that liberty isn’t rooted in anything at all. It has an ever-changing meaning, determined by the Court:
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
Any group that can manifest “hurt” can make a legal claim for special protection—again, racism (not the dignity of human nature) is the precedent:
The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
If liberty is “the right to define one’s own concept . . . of the universe,” then it is truly adrift and the nation will become increasingly impossible to govern. With the old presuppositions having fallen away, there will be no limits to rights claims, other than the fiat of whoever is in power—most likely a majority of Supreme Court justices. If liberty is defined without any ties to the “traditions of this country” as Justice Alito says, or to truth or nature, or to a common good, we will find ourselves “at sea” in a “postmodern” concept of liberty. Yet the difficulty remains: Slavery was in fact a tradition of this country, thus arming progressives with a precedent for nearly unlimited rights activism.
It’s hard not to see something cosmic in all this. If the framers of the Constitution had been more morally courageous in identifying slavery as an evil, or if the later compensatory amendment had rooted liberty in a common human nature rather than on weaker procedural grounds of equality under the law, then perhaps the expansion of protected classes and arbitrary rights would not have advanced so stridently.
The irony is painful, though, that the same legal power to defend the rights of former slaves in an attempt to rectify the sin is being used today to justify killing children in their mothers’ wombs. Over fifty million lives later—a large number of them black lives—we should ask whether our Original Sin must plague this nation until her final days.
Dominic Bouck, O.P., is a Dominican brother of the Province of St. Joseph and a summer intern at First Things.
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