Donald Trump and maga Republicans intend to destroy the equal protection clause provided in the 14th Amendment

Echo opinion published in the New York Times by Jamelle Bouie 

Stephen Miller’s 🤢Latest Low: Nazism 101: 
"You can’t change the masses. They will always be the same: dumb, gluttonous and forgetful.”― Joseph Goebbels

The latest front in evil 👹Stephen Miller’s personal and political war on the 14th Amendment, which began last January with Donald Trump’s executive order targeting birthright citizenship, centers on the equal protection clause.

In 1982, in Plyler v. Doe, a 5-to-4 majority of the Supreme Court held that it was a violation of the equal protection clause for states to deny to undocumented children the free public education they provide to legal immigrants’ children, who are themselves citizens. As Justice William Brennan wrote in his opinion for the court, “The 14th Amendment to the Constitution is not confined to the protection of citizens.”

Miller, whose crusade against immigration knows no bounds, wants Republican-led states to test the court’s commitment to its precedent. My newsroom colleague Lauren McGaughy has the report:


Stephen Miller raised the idea of ending public education funding for undocumented children in a closed-door meeting with Texas lawmakers in Washington last week, a move that would challenge a decades-old U.S. Supreme Court precedent, according to two people who were in the meeting.

Steven Miller doppelganger: Joseph Goebbels (1897-1945) Hitler's Nazi Minister of Propaganda.

Miller, who is Trump’s hard-line immigration terror adviser, and a Joseph Goebbels doppelganger, cited gridlock in Congress as he encouraged the state lawmakers to pass conservative legislation on immigration and other issues that are crucial to Republicans, hoping such action would spur on other red states and federal lawmakers.

The effect of this change, if it were to become law, would be to mark about a million children as members of a subordinate class — a lower caste excluded from mainstream society. Here, again, is Brennan: “By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

Miller’s push to weaken the equal protection clause raises an important question: Why is he, and the "maga" right more generally, so intent on whittling down the 14th Amendment to essentially nothing❓

To answer this, we can’t just look at the origins of the amendment — we have to see it in its larger political context. Before the 14th Amendment was a question of law and legal interpretation, it was a political text meant to bring about a particular vision of American society.

It seems obvious to say, but it’s worth emphasizing anyway: The 14th Amendment is tied directly to the 13th. The 13th Amendment states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It then adds, in section 2, that “Congress shall have power to enforce this article by appropriate legislation.”

Today, as a matter of legal interpretation, we read the 13th quite narrowly; it simply ends slavery. But the authors and ratifiers of the 13th Amendment saw it more expansively. To them, it was the foundation for the society they hoped to build. 

Like Senator Henry Wilson of Massachusetts said in a March 1864, floor speech in support of the amendment:

"Every word spoken, every line written, every act performed, that keeps the breath of life in slavery for a moment, is against the existence of democratic institutions, against the dignity of the toiling millions, against the liberty, the peace, the honor, the renown and the life of the nation. In the lights of to-day that flash upon us from camp and battlefield, the loyal eye, heart, and brain of America sees and feels and realizes that the death of slavery is the life of the nation❗ The loyal voice of patriotism pronounces, in clear accents, that American slavery must die that the American Republic may live❗"​​​​​​​​​​​​​

To that end, the 13th Amendment was meant to outlaw hereditary caste as much as it was meant to end chattel slavery.

The anti-subordination aims of the 13th Amendment are why, almost immediately after ratifying it, Republicans in Congress leveraged their newfound authority under Section 2 to pass the Civil Rights Act of 1866, which established birthright citizenship, guaranteed equal rights, nullified the “Black Codes” — laws passed by the former rebel states to reimpose the conditions of slavery — and empowered the federal government to prosecute violations of civil rights.


President Andrew Johnson, a Tennessee unionist whose contempt for slaveholders was outweighed only by his hostility to Black Americans, vetoed the bill as both undesirable and beyond the scope of federal power. “In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted,” Johnson wrote. “They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.”

The Republican-led Congress overrode Johnson’s veto. It then began work on a new amendment, meant to embed in the Constitution the provisions and protections of the 1866 law, as well as write its vision of a free and equal society into the Constitution itself.

The resulting 14th Amendment, properly understood, is additive to the 13th. It flows from the vision of Gettysburg and Appomattox, of the Republican Party before, during and after the war: a society of equals, entitled to a broad set of rights and able to pursue their own visions of the good as far as their capabilities would take them.

A straightforward reading of the most important part of the amendment, Section 1, makes this clear. It says, in short: "There will be a national American citizenship. That this citizenship will, except in very select cases, be established by birth. That all such citizens will be entitled to the 'privileges and immunities' of American citizenship, and that — citizen or no — everybody on American soil is to receive the due process of law and the equal protection of the laws."

As Representative John Bingham of Ohio, one of the chief architects of the amendment, would write soon after ratification, Let it be “borne in mind that this is the government of men representing every people and kindred and tongue under the whole heavens, and that in the inception of our national struggle for representative government, in 1776, the declaration of the people was not that all white men are created equal, but that all men are created equal, and endowed by their Creator with the rights of life and liberty.”

The Supreme Court would eventually trim and limit this vision, eventually going, in Plessy v. Ferguson in 1896, as far as to permit the kind of subordination that the 14th Amendment was explicitly written to forbid. Indeed, this was part of the transformation of this amendment into a merely legal document — of removing its political content and treating it as a bare set of narrow requirements. The court would do the same to both the 13th and 15th Amendments, robbing them of their power to transform the American republic. And it did so as part of a larger political project: to reconcile the white citizens of the United States, to give the white South the power to manage its own “affairs,” and to support a national project of imperial domination. As a promise of equality for all who live under the flag, the 14th Amendment had to be written out of the constitutional order.

Both Miller and the "maga" right are engaged in the same kind of work as their political forebears. It is no wonder, then, that they want to gut the 14th Amendment, which was revitalized by the struggles of Black Americans and other groups throughout the 20th century. Theirs is a project of subordination at home and abroad; of the re-inscription of caste and the recreation of tiered citizenship based on race and nationality. And now, as then, the 14th Amendment stands in the way.

In other words, their project of constitutional change is in the service of a distinct political vision. Opponents should take note. It is not enough, as important as it is, to attack the legal basis of Miller’s efforts or debunk "maga’s" historical arguments. One must also bring a positive political vision to bear against their fantasy of reimposing rigid lines of caste, class and hierarchy.

The good news is that the 14th Amendment, and the larger Reconstruction story, is an important resource about an alternative vision — about an egalitarian society for all who claim this nation as their own.

What I Wrote: In this column,  Jamelle Bouie argued that whether at home or abroad, Donald Trump's pathological narcissism leaves him unable to see that his opponents have agency. As the aphorism goes, the enemy gets a vote, too.

Every presidential administration takes on the character of its principal, and this one is no different. Like Trump, the White House does not in fact seem to understand that other people have agency, too. It sees itself the same way the president sees himself: as the protagonist of the universe, with everyone else acting either as a supporting character or a nonplayable one — extras with no will of their own.