The timing is right for a 14th amendment renaissance, says Sherrilyn Ifill.
The 14th amendment, created during the Reconstruction era, carries the promise of equality for Black people and accountability for people engaged in insurrection and white supremacy, though its provisions have never been enforced fully.
Pro-democracy advocacy groups are using the amendment’s third section to keep Donald Trump off the presidential ballot for engaging in insurrection, a high-profile and novel approach for a presidential candidate. So far, a court in Colorado and a Maine elections official have used these arguments to say Trump can’t appear on the ballot in those states. The cases, which Trump has appealed, are expected to go to the US supreme court.
Ifill, a longtime civil rights lawyer, wants a generation of attorneys to be trained on the amendment and for it to enter into Americans’ understanding of their rights. In Washington DC in 2024, she will launch a center focused on the 14th amendment at the Howard University law school, a historically Black university.
As a former president of the NAACP Legal Defense Fund, Ifill has sued Trump before, alleging that his presidential campaign disfranchised Black voters in 2020. Since she left the NAACP in 2022, she has repeatedly sounded the alarm about US democracy in peril, saying the country is in a “moment of existential crisis”.
If Trump returns to the White House in 2024, “we will cease to be a democracy”, she said.
The Guardian spoke to Ifill about the stakes of this year’s election, and how to protect civil rights at a critical time. This interview has been edited for length and clarity.
Are we in a crisis point for democracy, unlike we’ve seen in our lifetimes?
Absolutely. No question about it. We are in a crisis. Any time members of Congress say, as many apparently told Senator Mitt Romney, that they’re afraid to cast the vote they believe they should cast on impeachment because they worry about their children and their wives, we have a problem. We are in an authoritarian moment. Unfortunately, it’s a global authoritarian moment, which makes it even more challenging.
What can we do about it?
All the things that we’re doing. When litigating, we’re trying to hold people accountable to the rule of law, which is critical. We have to be educated ourselves about the tools that are available for us. We can stop telling fairy stories about this country. That’s what I find so beautiful about the architecture of the 14th amendment is that recognition, even amid the soaring promises, that the stubbornness of white supremacy and insurrection will remain and that we will need to confront it with power.
Tell me about the idea behind the 14th Amendment Center. Why the 14th amendment?
The first constitution obviously left a lot of things unsolved, kicked the can down the road on slavery and is deeply flawed without question. The second constitution, which is the one created after the civil war, is really bound up first and foremost in the civil war amendments: the 13th, 14th and 15th amendments. Those amendments reimagined a new America precipitated by, of course, the civil war and the need to finally fulfill the promise of equality, of Black people becoming full citizens of this country.
It’s a powerful, powerful amendment. And yet, most of us, even as lawyers in law school, study only a fraction of it. Most citizens in our country don’t even know about it. I always say that if you walk up to a guy who’s got an AR-15 on his back in a McDonald’s, and you ask him, why do you have that long gun on your back just to get a quarter-pounder? He’s gonna say, because it’s my second amendment right. We’re having a conversation right now about what people can say on college campuses, and people feel very comfortable articulating their first amendment rights. We don’t talk about “my 14th amendment rights”, even those of us who are civil rights lawyers and litigate predominantly under the 14th amendment or statutes that come from the 14th amendment.
As a result, we tend to talk about discrimination in terms of feelings or morality or the goodness of a person or whether they have a racist bone in their body or whether they see race, not that equality is a constitutional imperative. We talk about it as though it is optional, depending on how good the person is. That is not the spirit of the 14th amendment. I think it has been, I’ll go as far as to say, hijacked. At this time in our country, I think we need to re-engage it, particularly because the 14th amendment was created by a group of legislators and those who influenced them who had stared into the face of insurrection and into the face of violent white supremacy. Both of those very dangerous elements are elements that we are confronting today.
Do you believe that the US has ever really met the full promise and strength of the 14th amendment?
I don’t. That’s not even my opinion, it’s objectively true. The supreme court set about cutting back the promise of the 14th amendment pretty early on in the 19th century, in US v Cruikshank, in the civil rights cases and in Plessy v Ferguson. Even though the 14th amendment, section 5 gives Congress the power to enforce the guarantees, Congress is silent for the first half of the 20th century until forced to begin legislating by a grassroots activist wave that we call the civil rights movement.
What kind of work do you envision the center will do? Training other lawyers on the 14th amendment, scholarly work, taking on cases?
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I see the goal of the center, first and foremost, to train a generation of lawyers who are fully conversant with and equipped to utilize the 14th amendment as advocates – whether they are legislative advocates, whether they are litigators, whether they are educators, whatever they choose to do with their law degree.
We’re seeing it right now with the section 3 challenges to Trump appearing on the ballot, which I find very exciting. The finest lawyers in our country did not learn about section 3 of the 14th amendment in law school. One of the reasons you’re seeing the controversies between different law scholars about whether Trump can be on the ballot is because it’s not been tried before. Fortunately for us, we have not faced an insurrection at the national level of this sort.
You mentioned the section 3 cases. Why do you think there is this reluctance on the part of judges to intervene on this specific section in some instances?
It hasn’t been done at this level, certainly at the presidential level. I think that judges are afraid. They’re afraid because of the political consequences, but I think given the particular nature of this candidate, it would not surprise me if judges were not at least pausing to consider personal consequences for them and their families. That is a sure sign that we are a democracy in peril. Mostly, it is fear.
You hear people say all the time, let the voters decide. You don’t just ignore sections of the constitution because the voters can decide. That isn’t how it works. It isn’t that we could have state-sanctioned racial segregation in our schools because we put it to a vote. That’s not how it works. It’s trying to offload what was clearly an obligation that the framers of the 14th amendment believed had to be undertaken.
What happens if Trump returns to the presidency?
In very short order, we will cease to be a democracy. Trump has made clear what his plans are – a country in which the Department of Justice is weaponized against the perceived enemies of the president, a country in which the guarantees of civil service are destroyed, a country in which favors of governmental largesse and support are handed out based on personal allegiance to the president, the hijacking of the courts, and the encouragement of random political violence. It’s not a recipe for democracy.
If he does win, then how do you and others who are engaged in all of this work try to rein him in, keep him accountable?
You fight. It’s not even a question at that point of me and other people who do this work; it’s a question of every American who wants to live in a free democracy. What do you do? Do you acquiesce? Or do you resist? You show up, and you resist. Just as it’s happened in countries around the world, some of whom we admire tremendously. We are not immune and we have allowed too many guardrails to be breached. If we all ultimately end up having to pay that price, then we go back to the drawing board and we keep pushing to make this country a democracy again.
What are you most concerned about in 2024?
People checking out, deciding they don’t want to vote. It’s just not the time for that. People need to be all in and need to understand what the stakes are and need to get comfortable with what it means to vote for president, which is not that you’re necessarily voting for the perfect candidate or the candidate that you love. You’re voting for a candidate who is responsible, mature, who is sane, who is not merely using the government for their own ends, who understands government and who is prepared to actually govern and implement policies that are in the best interests of the people in this country, who is prepared to use the levers of power in ways that are democratic, open, transparent, that allow for dissent without retaliation.
Those choices seem very clear to me.
Source: US Politics - theguardian.com
