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USA TODAY Weekend Extra - - WEATHER - Mark Weaver, lawyer

14TH AMEND­MENT TEST

Pres­i­dent Don­ald Trump is ex­pected to an­nounce his Supreme Court nom­i­nee Mon­day, the same day the 14th Amend­ment turns 150. The in­ter­sec­tion of these events cre­ates an op­por­tu­nity to ask the nom­i­nee a cru­cial ques­tion: Would you rather be a state leg­is­la­tor or a judge? Depend­ing on how one views the 14th Amend­ment, it could be ei­ther.

Passed amid the gusts of na­tional changes fol­low­ing the Civil War, many le­gal schol­ars ar­gue that the por­tion of the amend­ment known as the equal pro­tec­tion clause was in­tended to sim­ply guar­an­tee equal rights to newly freed slaves. There are aca­demic tus­sles about this as­ser­tion, but nearly every­one agrees that fed­eral judges have gone much fur­ther than that. The Con­sti­tu­tion was drafted to strike a care­ful bal­ance between state and fed­eral power. If it’s mis­used by the next jus­tice, the equal pro­tec­tion clause will ex­ac­er­bate those dis­putes.

Po­lit­i­cal ques­tions be­long in state leg­is­la­tures, where you can toss out those who pass laws you op­pose. When pol­icy is­sues am­ble into courts ad­min­is­tered by un­elected, the bal­ance of Amer­i­can law and govern­ment tilts against ac­count­abil­ity. The stage is set. Our next Supreme Court jus­tice has a choice of roles: the toad­y­ing show­man­ship of a law­maker or the quiet re­flec­tions of a judge. Colum­bus

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