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Law Day Event Highlights Fourteenth Amendment

By Sarah Kellogg

May 3, 2017

Law Day 2017

On May 1 the critical role of the Fourteenth Amendment of the U.S. Constitution in shaping American law and society over the past 150 years was the focus of the Annual Law Day Conversations with the D.C. Courts.

Moderated by D.C. Bar President Annamaria Steward, the discussion featured D.C. Court of Appeals Chief Judge Anna Blackburne-Rigsby, D.C. Superior Court Chief Judge Robert E. Morin, and American Bar Association President Linda Klein. This year’s Law Day theme is “The Fourteenth Amendment: Transforming American Democracy.”

“It is very important to bring this conversation with the judges to the community as we’re facing more and more questions about access to justice and equal protection,” said Steward, who is associate dean of students at the University of the District of Columbia David A. Clarke School of Law.

The Fourteenth Amendment, which was one of three constitutional amendments passed after the Civil War, is significant because it extends citizenship to all persons born or naturalized in the United States, including former slaves. It also has become the foundation for contemporary federal court rulings that are rooted in the amendment’s due process and equal protection clauses.

“It is the bedrock of what we now think we’re entitled to as citizens in this country,” said Blackburne-Rigsby. “The equal protection clause means making sure our government gives the same rights to everybody, and [it] could no longer say slaves are three-fifths of a person.”

Morin said the fact the Fourteenth Amendment extended U.S. constitutional protections to the states transformed the disparate states into a single country. Both the due process clause—no state may deny a person “life, liberty or property, without due process of law”—and the equal protection clause—no state can deny a person within its jurisdiction equal protection of the laws—were much-needed additions to the Constitution.

“To me, the Thirteenth, Fourteenth, and Fifteenth amendments, I call [them] the second constitutional convention,” said Morin. “It’s when we became a nation.”

The Thirteenth Amendment made slavery unconstitutional, and the Fifteenth Amendment prohibited discrimination against voters on the basis of race, or color, or previous condition of servitude.

“In the balance of things, it can expand the right of citizens,” said Blackburne-Rigsby of the Fourteenth Amendment. “Most people, about 30 million people, come into state courts, while only about one million go before federal courts.

“The state courts see and have opportunities to address the issues and concerns of far more people in this country than the federal courts do. Expanding the protections . . . to states was a critically important step.”

The Fourteenth Amendment’s equal protection clause was used most notably as the foundation for the U.S. Supreme Court’s decision in Brown v. Board of Education. The landmark ruling overturned the Court’s previous Plessy v. Ferguson decision, which established the principle of separate but equal for everything from schools to drinking fountains. In Brown, the Court found that principle unconstitutional for schools.

Interestingly, Blackburne-Rigsby noted that Brown did not address segregation in D.C. schools. The Fourteenth Amendment doesn’t technically cover the District because it is not a state. In the Bolling v. Sharpe decision, released the same day as Brown, the Supreme Court held that D.C. school segregation was unconstitutional under the Fifth Amendment’s due process clause.

Klein said that in recent years there has been a new Fourteenth Amendment concern: the plight of civil defendants. According to Klein, there is a nationwide need for civil Gideon that would establish a constitutional requirement that states provide defense attorneys to defendants charged with civil offenses. It would parallel the Gideon v. Wainwright decision from 1963 that granted the protection for criminal defendants.

“The American Bar Association has policies favoring what we call civil Gideon, or right to counsel in a civil case,” said Klein. “There are some [states] where there is indeed civil Gideon, but certainly not all of them. This country is pretty far away from that happening nationwide.”

Both judges agreed, noting that the lack of representation for civil defendants in the District is a serious problem, especially in landlord–tenant disputes. “It’s a very big challenge for us,” said Morin. “You could argue that people are being denied due process and equal protection if they don’t have a lawyer.”

Blackburne-Rigsby echoed Morin’s apprehension about unrepresented civil defendants, as well as the ongoing challenges in the D.C. courts for meeting the needs of mentally-challenged and young offenders. “Ensuring access to justice for all our citizens in the District of Columbia is a priority for all of us,” she said.

The D.C. Courts, the D.C. Bar, and the ABA sponsored the Law Day event. President Dwight Eisenhower established Law Day in 1958 to mark the nation's commitment to the rule of law.