The MAGA Right’s Plan to Destroy the Fourteenth Amendment

Another January 6 has come and gone, and with it the furtive remembrances of the day that touched off so much institutional collapse. Not that you’d know anything was amiss in Washington, where Democrats made an elaborate show of underscoring the peaceful transfer of power—seemingly not aware that the very act of melodramatizing something that should simply be background noise in a stable democracy only suggests the papering over of a greater disorder.

It’s been fashionable to argue that the 2021 coup plot actually succeeded or, perhaps more accurately, never ended. Either way, the reality is that January 6 may have passed on the calendar but it is not done with us yet. What began on that day was much more than a mere attempt to overturn an election, it was actually a forcible rejection of the principles of democracy that arose out of the post–Civil Rights era. President Barack Obama used to suggest that his election was evidence that the United States was shaping into the “more perfect union” of its dreams. The latest election suggested that what we’re actually rounding into is a mafioso state ruled by a strongman and his affiliated oligarchs. 

This year, the right will be coming after the strongest bulwark against their corrupt vision for our future. It is one of the most important accomplishments of the Reconstruction era, and one of the most critical safeguards of justice, citizenship, and equal protection under the law: the Fourteenth Amendment. What makes this amendment so important is that it plays an outsize constitutional role in enabling the possibility of a robust multiracial democracy. That also makes it a prime target of those who want to prevent such a thing from coming into being.

It makes sense that this battle should kick off with an insurrection. One of the most interesting things about the January 6 attacks is that they were something for which we, the people, had specifically prepared, writing into the Fourteenth Amendment language—which TNR’s Matt Ford described as “thunderous and unequivocal”—barring any person who had sworn an oath of office and subsequently gone on to engage in “insurrection or rebellion” from ever again holding federal office. 

When Colorado voters sued their secretary of state, Jena Griswold, in an attempt to use this constitutional fail-safe to evict Donald Trump from the ballot, it brought Griswold into conflict with the Supreme Court. Like many observers, I felt the disqualification effort would prove fruitless before that body but that the justices would take safe harbor in the lack of any criminal convictions of Trump to make the more abstruse argument that there was too much doubt about his culpability in the insurrection to deny him a place on the ballot in accordance with the disqualification clause. 

Instead, as Ford documented, the majority opinion took a much more severe and unprecedented approach to the problem, effectively applying a judicial line-item veto to the Fourteenth Amendment itself, thereby nullifying its use as an electoral fail-safe. The ruling, Ford wrote, “paves the way for insurrectionists to run for and hold federal office despite the Constitution’s categorical language that disqualifies them,” along the way deciding “questions that weren’t before the justices in this case in the first place,” and providing answers that “will only immunize these and future insurrectionists from potential consequences.”

That the Supreme Court demonstrated a willingness to tear a hole in the Constitution has only emboldened the right to take further aim at the Fourteenth Amendment. (It’s not ideal that a loud segment of the political press, who typically venerate the Constitution in flamboyant fashion, also found the disqualification clause worthy of their ridicule.) As Ford noted in November of last year, the Trump administration is planning to go after another section of the amendment’s unequivocal language—that which protects birthright citizenship. And they’re road-testing a new argument advanced by Trump-appointed federal Judge James Ho, a onetime originalist defender of birthright citizenship who has carved out a unique exception to the rule:

Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.

That makes two of us! Given the extreme unlikelihood that there are any living humans who participated in either an invasion or a war on U.S. soil who are now prospective U.S. citizens, I should simply be able to go on never worrying about this. But given the propensity of Republicans to refer to legitimate asylum-seekers as “invaders” and the campaign comparison of Haitian Americans residing in Ohio to illegitimate citizens, I’m starting to think that Ho intends “war or invasion” as something far more malleable and abstract than the literal definitions of those terms.

All of which would be perfectly consistent with Trump’s second-term agenda, in which he’s promised to transform the federal government into an instrument of personal revenge and roll back the rights and benefits that people and groups he disfavors currently enjoy. As TNR contributor Susan Rinkunas recently reported, much of this will come down in a battle to strip citizenship from people, and the Fourteenth Amendment will be under attack once again:

The Fourteenth Amendment was intended to extend full citizenship to formerly enslaved Black people, and it undergirds the right of all Americans to be treated equally under the law, no matter who they are or in which state they reside. Yet over the past year, conservatives have been increasingly open in their beliefs that pregnant women, transgender adolescents, affirming parents of trans kids, and immigrants are not legally entitled to the Fourteenth Amendment’s protections—all while arguing that fertilized eggs are. Republicans are using strategic litigation to effectively rewrite the Fourteenth Amendment to prioritize conservative white men and embryos above and beyond everyone else. They are warping something used to grant rights into a bludgeon to take them away, and are redefining who counts as a person in the United States.

Those who are familiar with Wilhoit’s law—which holds that conservatism, in the words of Ohio classical music composer Frank Wilhoit—“consists of exactly one proposition.… There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect”—will recognize that Trump’s plans aren’t novel but rather stem from the primordial ideas that have long guided his party along its postmodern evolution into a haven for authoritarianism and oligarchy. 

What’s changing now is that the right’s embrace of this philosophy is becoming more explicitly stated; the need to couch this despicable notion in what Wilhoit referred to as “an elaborate backwash of pseudophilosophy” is less necessary now that the Supreme Court has granted the president monarchic immunity powers and indicated its openness to redact and rewrite whole parts of the Constitution. Thus begins the great unbinding of the right from their constitutional obligations, and the lifting of constitutional protections for those they deem to be “enemies within.”  

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.