Mises Institute How the Fourteenth Amendment Empowers Judicial Activism
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Sep 30, 2025 Explore how the Fourteenth Amendment, originally designed to protect freed slaves, has morphed into a tool for judicial activism. Delve into critiques of its political uses by judges, illustrated by recent federal cases involving school names and free speech. Unpack Justice Thomas's originalist stance and the permanent effects of Reconstruction laws. The discussion highlights how a century of misinterpretation has shifted the Constitution's meaning, sparking debate over centralization of judicial power for social change.
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Fourteenth Amendment Used As A Political Tool
- Activist judges have treated the Fourteenth Amendment as a vague, elastic tool to enact broad social change beyond interpretation.
- This has enabled incorporation of the Bill of Rights and expanded federal power over states through civil-rights litigation.
Incorporation Centralizes Federal Authority
- The incorporation doctrine is a judicial creation, not explicit in the Constitution, used to centralize federal authority.
- Critics argue this weakens state sovereignty and may cost more liberty than occasional protections gain.
Reconstruction Origins And Narrow Purpose
- The Fourteenth Amendment originally aimed to protect freedmen from Southern black codes and ensure basic economic and legal rights.
- Justice Clarence Thomas and others emphasize the amendment's narrower Reconstruction-era purpose.
