The 14th Amendment and Me: How I Learned Not to Give Up on the 14th Amendment

.81 introduction In 2012, at the National Archives in Washington, D.C., I saw the original manuscript of the joint resolution of Congress proposing the 14th Amendment.1 The cursive script and faded ink made the words difficult to read, but the force of the words was manifest: . . . [no] State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.2 These words had recently gained a newfound importance for me as I had just become co-counsel representing high school students in Arizona. In that case, Arce v. Douglas, the students challenged a state statute that had been used to terminate their school district's Mexican American Studies program.3 The students alleged that the statute had been enacted and enforced in violation of their rights under the 14th Amendment, among other claims.4 Not to give too much away, but after six years, the students finally prevailed.5 Previously, the 14th Amendment's words had existed as more of an abstraction for me, something that I wrote about in law review articles, often to criticize the myriad ways the United States Supreme Court had limited the reach of those words.6 My academic work on the 14th Amendment, until then, had also included an examination of how Asian Americans fit within constitutional jurisprudence.7 This work required comparisons of different racial groups and how they navigated the complex and treacherous terrain of race in the United States.8 This academic work provided context for me when I litigated the 14th Amendment in the courtroom, which resulted in a newfound appreciation of the amendment. AN ACADEMIC PERSPECTIVE ON THE 14TH AMENDMENT One of the most pernicious pronouncements that limited the reach of the powerful words contained in the 14th Amendment occurred fifteen years after its ratification, when the Supreme Court, in the Civil Rights Cases, invalidated legislation passed by Congress to ensure access and enjoyment of inns, public conveyances, and places of public amusement for persons of color.9 The chief problem with the legislation, at least with regard to the 14th Amendment, was that it interfered not with discrimination by state or local governments but with acts of discrimination by private individuals, which the Court deemed to be mere private wrongs.10