The 14th Amendment granted citizenship to all persons born or naturalized in the United States. It also granted them equal protection under the laws and guaranteed due process of law. Those are considered its most important provisions today. That wasn't always the case, however. Why did it take so long for the Supreme Court to affirm these provisions of this significant Amendment, and what does that say about politics at the highest court in the land?
Our guide to the 14th Amendment is Aziz Huq, professor of law at the University of Chicago School of Law.
Transcript
Archival: [00:00:07] Mr. Hirschkop you may proceed.
Archival: [00:00:09] Thank you, Your Honor.
Archival: [00:00:13] Mr. Chief Justice. Associate Justice. May it please the Court. We will divide the argument accordingly. I will handle the equal protection argument as we view it, and Mr. Cohn will argue the due process argument.
Hannah McCarthy: [00:00:27] Nick, do you have any idea what case this is from? [00:00:30]
Archival: [00:00:30] Odious of the segregation laws and the slavery laws and our view of this law.
Nick Capodice: [00:00:35] Slavery law.
Archival: [00:00:37] Is that this is slavery law. 2058 is the evasion section under which this case particularly arose, which makes it a criminal act for people to go outside the state to avoid the laws of Virginia to get married.
Nick Capodice: [00:00:51] Oh, okay. Loving, Loving v Virginia.
Archival: [00:00:55] The issue is may a state proscribe a marriage between two adult consenting individuals [00:01:00] because of their race. And this would...
Hannah McCarthy: [00:01:02] That's right.
Hannah McCarthy: [00:01:03] Super famous case. The Supreme Court finds that a Virginia law prohibiting interracial marriage is in violation of the equal protection clause of the 14th Amendment.
Archival: [00:01:15] They themselves would lose their rights for insurance, Social Security, for numerous other things to which they're entitled. Right.
Nick Capodice: [00:01:22] We have done not one, but two episodes on this case.
Hannah McCarthy: [00:01:25] We have. But today I am having us consider it for a specific reason. [00:01:30] In this case, the court says that this law prohibiting interracial marriage, otherwise known as an anti-miscegenation law, is racist. The court says it is a violation of the 14th Amendment. The court says the 14th Amendment means a specific kind of protection.
Nick Capodice: [00:01:48] Kind of protection, as in a protection under the law extended to all people in the US. That is what the 14th Amendment did. Well, did it? What do you mean? [00:02:00]
Hannah McCarthy: [00:02:01] All right, Nick, this is going to be an episode about context, about the ways in which politics and events hold sway over the interpretation of our amendments. The 14th Amendment comes up in discourse today in ways that have nothing at all to do with equal protection under the law. The most important pieces of any amendment and what that amendment actually means, that shifts and it's based on what the Supreme Court says about it. I'm using Loving V [00:02:30] Virginia as an example because it was decided in 1967. The 14th Amendment was ratified 99 years earlier, and this form of Virginia's anti-miscegenation law had been on the books since the 1920s, though interracial marriage had been prohibited long before that. If the 14th Amendment is the Equal Protection Amendment, where in a century of this quote unquote slavery law, was it?
Aziz Huq: [00:03:04] Yeah, [00:03:00] I would take a step back and I would say that if you want to identify the most important parts of the 14th Amendment, the answer to that question will vary depending upon when you're asking it. So at the time that the amendment was drafted, people paid relatively little attention to Section one, which contains a set of entitlements, and they paid a great deal [00:03:30] of attention to Sections two, three and four, which concern representation in the new Congress, which concern the exclusion of former confederates from political life and which concern the war debts that the union had accrued.
Hannah McCarthy: [00:03:47] This is Aziz Huq.
Aziz Huq: [00:03:48] I am a professor of law at the University of Chicago, where I teach, among other things, a class on equality and due process.
Hannah McCarthy: [00:03:59] I'll confess, [00:04:00] Nick, I went into this interview with Aziz having certain ideas about the 14th Amendment and what it meant, and those ideas included the 14th, really meaning something for equality and due process. And it does. But that meaning wasn't really affirmed when it was established.
Aziz Huq: [00:04:18] The 14th Amendment was drafted and ratified after the Civil War and contains a series of measures that were intended to [00:04:30] alter the social and political situation in the South by vesting, in particular, former slaves with new kinds of rights and entitlements, and also to cement the new national status quo by creating conditions under which the formerly Confederate states could rejoin the union without [00:05:00] destabilizing the outcome of the war.
Nick Capodice: [00:05:03] Huh.
Nick Capodice: [00:05:04] So Aziz said that just after it was ratified, people weren't paying much attention to the first very important section of the 14th Amendment, which, by the way, just for ratification, says what exactly?
Aziz Huq: [00:05:16] The most important pieces of the 14th Amendment are contained in section one. Section one includes four different textual elements, each of which specifies a different [00:05:30] kind of right or entitlement. The first is an entitlement to birthright citizenship, with important exceptions. The second is a provision concerning what's called privileges and immunities. And the third and the fourth, respectively, promise equal protection of laws and due process of law.
Nick Capodice: [00:05:56] But Aziz was saying in the 1860s, the focus [00:06:00] was really on the other parts of the amendment. The stuff about representation in Congress and war debts. What was going on there was that just post war anxiety, like what are we going to do now? And who cares about the rights and protections part of this?
Aziz Huq: [00:06:14] Absolutely not. The structural elements of the 14th Amendment were really pivotal to the way that reconstruction could be implemented. Recall that the Southern states that were formerly members of the Confederacy had [00:06:30] implemented a rules called black codes in the wake of the war as legal means of reinstalling the economic arrangements that characterized pre-war slavery. The 14th Amendment's rights provisions in Section one were meant to repudiate the black codes, but nobody thought that those rights would be self-enforcing. Nobody thought that merely announcing a set of entitlements meant [00:07:00] that the world on the ground would change. And everyone understood that for the world on the ground to change political power and ultimately military power through the reconstruction acts would have to be exercised. And who was the key agent for the exercise of military and political power and later, judicial power with respect to the project of reconstruction. It was Congress. And so the 14th [00:07:30] Amendment's provisions on the terms of representation in Congress, on the exclusion of former Confederate officials and on the validity of the public debt, were, in fact, cornerstones of the new war political order, without which even the limited achievement of rights that we did, in fact see would not have occurred.
Hannah McCarthy: [00:07:59] Basically, [00:08:00] in order to actually make Section one of the amendment happen, you had to first make sure that the nation's politics would allow for it.
Nick Capodice: [00:08:09] And this amendment contains an enforcement clause, right? Congress has the power to enforce this. So to undermine the black codes and to enforce the entitlements in Section one, Congress has to be the one to step up and do it.
Aziz Huq: [00:08:23] One of the surprising reversals that occurs in the wake [00:08:30] of the civil war is that although Congress plays a driving role enacting important legislation in the 1870s, even through to the beginning of the 1880s, quickly it becomes the court and not Congress that is taking the very general language of the 14th Amendment and in particular, the privileges and immunities, equal protection and due process language and transforming it into lived realities. [00:09:00] And the court here is largely in the late 1800s performing the political agenda of the Republican Party, which is making most of its appointments. Ask the Republican Party drifts away from the project of racial reconstruction and turns toward the project of the creation of a national commercial economy.
Nick Capodice: [00:09:24] Now, hold on a minute. Hanna, I just want to pause on this notion for a moment that the court is performing the political [00:09:30] agenda of the Republican Party, because for a lot of American history, the court has been held up as this idealized, apolitical institution. The independent judiciary is ostensibly a court system that is not influenced by other branches of government. Regardless of that notion, I do think that many people out there would feel that the court is in fact Partisan, even if the court itself would deny this. So can we address this? [00:10:00] Yep.
Hannah McCarthy: [00:10:01] Let's get into it.
Aziz Huq: [00:10:02] If you look back to the design of the federal courts, the members of the Philadelphia convention thought that they had guaranteed judicial independence by providing judges with after the fact protection from firing or salary reductions. They did not think, however, that [00:10:30] routing judicial appointments through to elected entities, the White House and the Senate presented any concern of politicization because they expected both the White House and the Senate to be apolitical bodies. The theory of national government, that is Article stated by James [00:11:00] Madison and was broadly accepted at the time, was that the national government would stand above what Madison called faction and Hamilton. Alexander Hamilton in the Federalist Papers is very clear that he anticipated that an apolitical Senate, drawing from what he described as the very limited pool of people who would be qualified to sit on the federal bench would [00:11:30] be in no position to engage in gamesmanship of a partizan kind with respect to appointments.
Nick Capodice: [00:11:38] I mean I mean, I knew that Madison was wary of factions. Federalist Ten is like the most cited federalist paper of all, but it's almost laughable to think of an apolitical Senate or of a very small pool of people considered qualified for the bench.
Aziz Huq: [00:11:56] Both of the assumptions upon which that [00:12:00] design was based failed, and they failed because the Constitution was successful. They failed because on the one hand, the Constitution generated a set of national politics, and national politics in the modern era means parties. We have national parties, Contra Hamilton and Madison's expectation. Moreover, we [00:12:30] have a national economy. There aren't just two law schools in I think it's Litchfield and Cambridge that produce lawyers. So in a world in which there are ample qualified applicants for federal judgeships and there are very powerful Partizan dynamics that push both [00:13:00] Democrats and Republicans to make selections based upon partizanship and where both Democrats and Republicans know that the design of Congress and the presidency is such that gridlock will often dominate so that the courts are the only available pathway for different kinds of national policy making. There is both motive and opportunity to [00:13:30] deploy the courts as instruments of national policymaking under those conditions. For people to say that courts stand outside politics is, I think, a form of professional malpractice when the claim is made by a legal academic.
Nick Capodice: [00:13:48] So to Aziz's point, we can reasonably say that the Supreme Court is influenced by politics.
Hannah McCarthy: [00:13:56] I think, Nick, perhaps we should say that if [00:14:00] we want to be reasonable, even if that means shattering a beloved American myth. But that is sometimes what we do here at Civics 101. So how was the court enacting the political agenda of the Republican Party? We talked a bit about the Slaughter-house cases in our reconstruction series Butchers, who appealed a case in the Supreme Court with 14th Amendment equal protection claims. This is 1873, and [00:14:30] here's how the court decided.
Aziz Huq: [00:14:32] The court narrowly interprets the protections of the 14th Amendment as they apply to formerly enslaved people in the South and their descendants. So the court narrows the scope of the 14th Amendment insofar as it is a shield against racial violence and exclusion. This culminates in a case called the civil Rights Cases, [00:15:00] where the court declares that Congress has no authority under the 14th Amendment to regulate private action and in so doing, announces that it is time for the formerly enslaved to cease to be the special wards of the law. So this is a point in time at which not just the court is ruling in ways that are disfavorable to former slaves. It is articulating clearly its repudiation [00:15:30] of the project of racial reconstruction starting in the decade that follows that the court finds in the 14th Amendment. Another political project, and it's important to note that that's happening at the same time that the National Republican Party is turning toward a much more free market vision of the United States. It's aggressively appointing judges to the lower courts and to [00:16:00] the Supreme Court. And it's those judges that are finding, in particular in the due process clause to the 14th Amendment, an idea of what has come to be called economic liberty.
Nick Capodice: [00:16:14] Wait, what does that mean?
Hannah McCarthy: [00:16:15] It's mostly about what employers and investors are owed in business deals. The court decides that regulated entities like railroads are entitled to fair returns on their investments. It also says that employers are entitled to whatever contract [00:16:30] they want to make with their employees, regardless of minimum wage or maximum hour laws that states might have.
Nick Capodice: [00:16:38] As in, even if your state says that you have to pay fair wages and you can't make your employee work more than 40 hours a week. The court says actually you can pay them whatever you want. You can make them work as long as you want and they can just quit if they don't like it.
Hannah McCarthy: [00:16:51] Yep.
Aziz Huq: [00:16:55] So the court, by the early 20th century, [00:17:00] has turned the 14th Amendment from a charter for racial reconstruction into a shield. For broadly speaking, corporate activity or capital against in particular state, but later national efforts to regulate, particularly in the name of redistribution.
Nick Capodice: [00:17:33] So [00:17:30] if we want to answer your question from the beginning of the episode, Hannah, where was the 14th Amendment in the century before the Loving V Virginia case? The answer is in large part, the 14th Amendment was busy protecting business.
Aziz Huq: [00:17:53] The court was moving in rough lockstep with the elected branches and in particular with the Republican coalition [00:18:00] with which it was more closely aligned at that point in time. And remember that by the election of 1876, the project of racial reconstruction had largely been put aside by the national government in more or less explicit terms. There are decisions after that election from the Supreme Court that are actually more favorable than one would imagine to racial reconstruction. But at that point, the political will is flagging. The appointments [00:18:30] to the lower courts are increasingly characterized by people who have an interest and a history of working in one kind of business or another. And we're starting to see the courts shift accordingly.
Nick Capodice: [00:18:41] So when did the Supreme Court start to look at the 14th Amendment differently? If we think of it as an amendment about due process and equal protection, specifically when it comes to race, was there a point at which it did mean that.
Hannah McCarthy: [00:18:55] There was and in fact, it certainly meant that to a huge portion of the population [00:19:00] before the court affirmed it. And we'll get to that after the break.
Nick Capodice: [00:19:04] But first, just a reminder, you don't have to miss a single episode of Civics 101 ever. You can follow us on Apple podcast, Spotify or wherever you get your podcasts. You know the drill. And while you're there, consider leaving us a review just to let us know what you think. Your feedback means a lot to us and it helps our show get better. See, both Hanna and I used to be actors, so feedback is like oxygen, sometimes [00:19:30] very painful, sometimes very cruel.
Nick Capodice: [00:19:33] But always helpful oxygen. We'll also just accept you telling us you like us because again, actors. So a little too thirsty Hannah?
Hannah McCarthy: [00:19:42] A little.
Hannah McCarthy: [00:19:49] We're back. You're listening to Civics 101. And before the break, Nick You asked when the 14th Amendment started to really mean what we tend to think of it to mean today, an amendment that [00:20:00] enshrines due process and equal protection under the law. It's important to note that while the judiciary certainly did not uphold the racial equality and due process aspects of the 14th Amendment initially, that doesn't mean that citizens forgot about it. It just means that when the rubber meets the road, it didn't really matter.
Aziz Huq: [00:20:21] So until the 1930, it was very rare for a member of a racial minority [00:20:30] to win a case under the equal protection clause. Indeed, there's a there's a famous decision not involving race called Buck v Bell, in which Justice Oliver Wendell Holmes caused the equal protection clause. The lawyers last refuge, it's the very last place that you look as a lawyer if you're desperate for arguments.
Nick Capodice: [00:20:50] Equal protection was a last ditch effort argument. It's just hard for me to imagine equal protection as not being a really important claim, especially [00:21:00] when it comes to a case about race. So at some point, Section one of the 14th Amendment really did start to matter, though, right? Equal protection due process. Those are big. So when did things change?
Aziz Huq: [00:21:14] The NAACP at the beginning of the 1950s. Now, this is a period in which you have two kinds of pressure on the federal government. First, there's pressure from black soldiers who fought in World War Two in the Pacific, [00:21:30] in the European theaters, who are coming back and who are not content to literally sit at the back of the bus. And second, you have the Soviet Union trying to win proxy wars, particularly in Africa, by centering its propaganda on the fact of Jim Crow.
Hannah McCarthy: [00:21:47] So basically, politics changed.
Aziz Huq: [00:21:50] So there's two pressures on the federal government at this point in time. And since the FDR administration, an administration in which Eleanor Roosevelt [00:22:00] played a particularly important role in picking out judges, you've had more and more judges being appointed to the lower federal courts who are sympathetic to questions of racial equity raised by African-Americans against Jim Crow. And you have an interest on the part of the Democratic Party. Notice again the importance of partizan politics. You have an interest on the part of the leaders of the Democratic Party [00:22:30] in breaking the hold of Dixiecrats on the party.
Hannah McCarthy: [00:22:35] Quickly here, the Dixiecrats. They were a segregationist party, primarily in the southern US. What you would call a splinter group from the Democratic Party itself. They objected to the Democrats civil rights plan that was popular mostly in the North.
Aziz Huq: [00:22:50] Dixiecrats have stood in the way of major parts of the New Deal. This is an enormous thorn on the side of the FDR administration and the Truman administration. All right. [00:23:00] So you have geopolitical, social and Partisan political pressures on the federal government in that context. The NAACP gambles on advancing the gains they've made in the university education context. By trying to extend the principle of separate but equal into [00:23:30] or trying to extend not just the challenge to equality. The challenge for equality, but the challenge to separation as such from the university context into the primary and secondary school context.
Nick Capodice: [00:23:45] Okay. Like in Brown v Board of Education.
Hannah McCarthy: [00:23:47] Right, exactly. That decided in 1954, the case in which the court ruled that separate but equal is inherently unequal. And mind you, even though this case has come to stand [00:24:00] for a great moral victory in the United States, it was by no means a guarantee that the court would allow the 14th Amendment to win out here. Actually, just the opposite.
Aziz Huq: [00:24:10] It's really important to say that this is an enormous gamble. It's an enormous gamble because the emotional stakes for white Americans at this time for primary and secondary education are extraordinarily different from the emotional stakes of tertiary education. The principal talking [00:24:30] point, if you go back and look at arguments about Brown, one of the principal talking points is the threat that black male students will pose to white female students in primary and secondary school. The sexual threat, it is explicitly understood. There is an explicit appeal to a racist understanding of black male sexuality as a justification for maintaining separation in schools, and the NAACP are really [00:25:00] gambling in pushing back at this because this is a very, very powerful force that cuts across partizan lines. So they bring a series of cases across 5 or 6 American cities, largely in places where the where the separate black schools are pretty good.
Nick Capodice: [00:25:17] What does he mean when he says the schools are pretty good.
Hannah McCarthy: [00:25:19] As in not schools that are obviously substandard, not schools that you would point to and say, you see, here are black children who are in a lesser environment receiving [00:25:30] poor education compared to white kids.
Aziz Huq: [00:25:32] And the NAACP brought the cases in places like Kansas City precisely because they didn't want equality. They wanted to get rid of separation because they thought that nationally, yeah, you might have these pockets of good black schools, but nationally, Green will follow white. The money will follow the white students. And if you desegregate the schools, the money will go to mixed schools. And as [00:26:00] a whole, black kids will benefit. So they bring these cases. They win in a in a way in Brown v Board of Education.
Hannah McCarthy: [00:26:10] When Inoue famously or maybe infamously, the court ordered that desegregation occur, quote, with all deliberate speed. Well, who's to say what that actually means? And school districts, particularly in the South, dragged their feet for a long time.
Aziz Huq: [00:26:29] The real [00:26:30] change is federal legislation. In the beginning of the 1960s, there's a federal statute that involves secondary education funding that made federal funding conditional on having a desegregated school. And there is a provision in the 1964 Civil Rights Act that allows the Department of Justice to file suit. Those two things are game changers. So remember earlier on, we talked about whether it's the court or the Congress that is [00:27:00] in the driver's seat. The court was in the driver's seat around desegregation and it couldn't get the get the vehicle into anything beyond first gear. Right. The car kind of sputters forward with a lot of friction and a lot of smoke coming out of the hood. And it's really only when Congress steps in that you have a shift, an up gearing toward a noticeable shift in the allocation of children between different schools.
Nick Capodice: [00:27:28] All right. Well, this reminds me of what Aziz [00:27:30] was talking about when it came to the 14th Amendment in the 19th century. But it's the opposite, Right? When the amendment was ratified, it was supposed to be Congress who enforced it, but the Supreme Court weakened the privileges and immunities clause and the equal protection and due process clauses. So now it's the 1960s and the court's saying, here's what the 14th Amendment means, but they need Congress to make it happen.
Hannah McCarthy: [00:27:55] Yes, but just as importantly, the court continued to say, [00:28:00] here is what the 14th Amendment means, specifically with respect to rights protections and privileges. Mapp, v, Ohio. Griswold v. Connecticut. Loving v. Virginia. Roe v Wade. Obergefell v Hodges. All of these cases, by the way, we have done episodes on. So to that end, I asked Aziz, Is the Supreme Court in the driver's seat when it comes to the 14th Amendment? Or is [00:28:30] it Congress?
Aziz Huq: [00:28:33] The court is still in the driving seat, in part because we have an increasingly deadlocked Congress thanks to polarization. The court is in the driving seat, both in respect to equal protection and in respect to due process on equal protection. The court has increasingly emphasized what it calls a colorblind view of the equality promise. One result of the of the colorblind [00:29:00] accent of its case law is that it is almost impossible for a minority plaintiff to win an equal protection case. And going back to the late 70s and early 80s, almost all of the individuals who win equality arguments are white plaintiffs. So the Equal Protection Clause has become an instrument for eliminating means of redistribution that largely benefit racial minorities. [00:29:30] That is what the equal protection Clause does these days. That effect is amplified because when minority plaintiffs bring equal protection claims, generally their argument is that they have been intentionally discriminated against. Often this is an argument that's made in the context of coercive state action like policing or border control. And in those contexts, the court has erected almost insurmountable barriers to proving intent. [00:30:00] So where a white plaintiff is likely to bring a case, the court has lowered the barriers to success where a minority plaintiff, either a black plaintiff in the context of policing or let's say a Hispanic or other ethnicity national origin plaintiff brings a claim in the context of, say, immigration enforcement. It is almost impossible to win an equal protection claim. We've already just touched on what the court is doing with respect [00:30:30] to due process. It's doing it's getting rid of rights to sexual autonomy, notwithstanding that. Right being on the books for 50 years and being something that largely women have come to depend upon.
Hannah McCarthy: [00:30:42] One last point Aziz made, and by the way, he has written a book about exactly. This brings us back to the enforcement question. Be that enforcement by the federal Congress or by the states, except Aziz calls it remedies.
Aziz Huq: [00:30:56] Not so much the idea of what rights are available under the 14th Amendment, [00:31:00] but what remedies are available. The last book that I wrote was about how remedies emerged under the under the 14th Amendment and then effectively collapsed. And so, for example, with respect to police violence, you know, you or I have a right to protection against both racist and unlawful violence by the police in theory, but we don't have one in practice. And that gap between the rights that we have and the way that the that they can be enforced through remedies I think is really important and I think is very [00:31:30] underappreciated.
Nick Capodice: [00:31:31] So it's all well and good to say. The 14th Amendment means these rights and these protections. But if the rubber doesn't meet the road, it doesn't really matter. All right, Hannah. I do have to ask one last question. The 14th Amendment has come up quite a few times in the last couple of years.
Archival: [00:31:49] There's also a tension, though, on members of Congress who some believe were also responsible for promoting that riot at the Capitol. Calls for accountability there have been extended to those lawmakers that are accused [00:32:00] of throwing gasoline on the fire by pushing theories of a stolen election. The 14th Amendment has been brought up as the mechanism for that.
Archival: [00:32:08] The progressive Democrats in the Senate are urging the president to consider using the 14th Amendment to avoid default. Senator, thanks for being on. Has this ever been done before? I'm looking back...
Nick Capodice: [00:32:23] How on earth do debt ceiling negotiations or the question of who can sit in office have anything to do with the 14th [00:32:30] Amendment?
Aziz Huq: [00:32:30] The third section of the 14th Amendment says that if you have engaged in rebellion or insurrection or given aid and comfort to a rebellion or an interaction, you can't run for public office in the United States, whether it's at the state or the federal level. We have had. Rebellion or insurrection on January the 6th, 2021, and that this provision has been used in one case successfully to bar people from public office. The second element of the 14th Amendment that is suddenly [00:33:00] newly relevant is there is a provision in the 14th Amendment that prohibits anyone from questioning the debt of the United States. Now, this was a measure that was intended to ensure that the newly readmitted southern states could not capsize the federal government by repudiating the very large union war debt.
Hannah McCarthy: [00:33:25] So back to your question, Nick. In early 2023, Congress authorized [00:33:30] spending through legislation. Now it is responsible for paying the money. And there's a law from 1917 called the Second Liberty Bond Act, which created what we now call the debt ceiling, where Congress has to vote if they're going to spend money that goes over that ceiling. And by the way, we recently made an episode about the debt ceiling, and I warmly recommend you give it a listen.
Aziz Huq: [00:33:54] What's happening today is that Congress, having decided to spend money, is refusing [00:34:00] to fund that spending in such a way as to make it fiscally impossible for the United States to pay interest on its debts. Treasuries can't pay interest on treasuries. The argument from the 14th Amendment is Congress effectively here is questioning the validity of the debt. It is preventing the executive branch from paying the interest on treasuries. Since treasuries are the most important [00:34:30] element of most money market funds, failing to pay interest on treasuries will have the effect of dramatically destabilizing suddenly and maybe comprehensively, the US economy. This is exactly the kind of problem that Section four of the 14th Amendment was meant to prevent. And the argument is, is that where Congress does something unconstitutional, the president doesn't have to execute that unconstitutional order. [00:35:00] So, for example, if Congress passed a statute saying anyone who tweets in favor of a political candidate will be summarily locked up, no one thinks that the president is under a constitutional obligation to enforce that law. Why? Because the law is plainly unconstitutional here. The law is again, I don't think it's plainly unconstitutional, but it's at least arguably unconstitutional. And therefore, Biden [00:35:30] has authority to. There's a number of things that he could do. There's the famous trillion dollar coin, which I'm not I'm not enamored by, but there are other less wacky things that he can do that mitigate the problem caused by Congress calling into doubt the debt.
Nick Capodice: [00:35:52] So after all this time, the 14th Amendment, the one that we associate with equal protection, with due process, [00:36:00] is back to the debt question.
Hannah McCarthy: [00:36:03] We do love to repeat history around here. This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jackie Fulton is our producer and Rebecca Lavoi is our executive producer. Music In this episode by Xylo Dzeko Viscard [00:36:30] 91 Nova Hitomi Tsunami Spring Gang. John Runefelt. Sara the Instrumentalist and XIV. And just a little reminder that we are public radio. What does that mean? It means that we're free for you. We tell the truth and we are beholden only to you, the public. We also rely on the public to keep us going. You will hear ads on this show from time to time, but our primary source of support is you. So if you're in the position to make a contribution [00:37:00] to this show, I kindly ask that you consider doing so. I myself have been contributing to public radio since I was a teenager. That is how much it means to me. It feels good even if it's just a dollar a month, which is, by the way, how I started. You can click the donate button at civics101podcast.org to voice your support for this show and for the project of public media. Civics 101 is a production of NHPR, New Hampshire Public Radio.