Can you all stand another diatribe about our misunderstood Constitution and its history?
Yale Constitutional scholar Akhil Reed Amar has repeatedly made an important–and largely unrecognized–point about the 14th Amendment. That Amendment, which we now consider part of the Bill of Rights, actually revised–or as he says,”reconstructed”–the original Constitution and Bill of Rights.
When I was teaching, I became acutely aware of how few students understood the impact of the 13th, 14th and 15th Amendments. Few came to class knowing, for example, that prior to the passage of the 14th Amendment (and the subsequent Supreme Court cases applying its terms) the provisions of the Bill of Rights had restrained only the federal government. (State governments could–and did–“establish” religions, for example. Massachusetts didn’t “de-establish” religion until 1833.)
Jonathan Bingham, a Republican (how times have changed!)and “one of America’s forgotten second Founders” who sponsored the 14th Amendment, constantly pointed to the Supreme Court ruling that first eight amendments did not “extend to the states.” In his book The Bill of Rights, Amar quotes Bingham saying “These eight articles I have shown never were limitations upon the power of the states until made so by the 14th Amendment.”
Heather Cox Richardson recently provided historical context for the passage of the 14th Amendment.
In 1865, the Thirteenth Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after an actor had murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States.
Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.
Richardson reminds us that, despite passage of the 13th Amendment, emancipated Black Americans in southern states could not vote, testify in court or sit on a jury.
In part, the Fourteenth Amendment was a response to the Dred Scott decision, which had declared that Black men “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.” The Fourteenth Amendment rejected that ruling, with specific language stating that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
But the Amendment did more than clarify that Black people were citizens.
The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history; it dramatically circumscribed Congress’s power.
This was the crux of the “states rights” argument. Under the pre-14th Amendment Constitution, “democracy” was defined by the state–or, as Richardson notes, by those people in a state who were allowed to vote. In other words, white men.
The Fourteenth Amendment gave the federal government the power to protect individuals from state legislative discrimination. It changed the locus of governmental authority in a number of ways, and as we are seeing–as red states send National Guard troops to the border, try to limit federal vaccine efforts, sue repeatedly to overturn the Affordable Care Act, and engage in numerous efforts to circumscribe the ability of the federal government to guarantee equal rights– that change is still being resisted.
For far too many politicians and jurists, respect for “originalism” is very selective. It stops with ratification of the “original” Constitution in 1788–and ignores everything that has come after, no matter how profoundly what came after altered, limited and/or enlarged what had come before.
Thank you for the lesson. I am struck by the sentence:
“democracy” was defined by the state–or, as Richardson notes, by those people in a state who were allowed to vote. In other words, white men.
This is EXACTLY what the Republicans are trying to enact, state by state, since their attempted coup failed on Jan 6. I sure hope the Federal election protection measures get passed and enacted.
thank you for the education. I did not know this about the 14th!
I would highly recommend Eric Foner’s “The Second Founding” for additional scholarship on the “Reconstruction Amendments.” Secondly, the Supreme Court gutted — and it remains gutted — the “privileges and immunity” clause within years. Finally, for those enthralled by the ludicrous “critical race theory” debates, remember that the Lost Cause version of history, taught to all of us, defined the proponents of the 13th, 14th and 15th amendments as “Radical Republicans.” That alone should bar attacks on the improved versions of American history.
To answer your opening question: Only if you write it Professor. Only if you write it. Well done.
And that was the SECOND major step toward a national government.
Too many “conservatives” (and really, what is conservative about them?) think we’re a confederation of States. They don’t understand that the Articles of Confederation and Perpetual Union (generally known, if at all, as the Articles of Confederation), ratified in 1781, were our first attempt at a Constitution, and they were a disaster. To survive as a nation, we needed to be a nation, not a system of alliances.
“Amendment XIII (Abolition of slavery) Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Where does Heather Cox Richardson see the term “race” referred to in this Amendment? That “…emancipated Black Americans in southern states could not vote, testify in court or sit on a jury.” was merely an assumption.
“Amendment XIV (Civil rights) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive and person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Only Section 1 of this Amendment appears to refer to the rights of the citizenry and the right to vote is not included; was it deliberately omitted or overlooked? Is the specific right of the people to vote found anywhere in the Constitution or the Amendments? Section 2 excludes untaxed Indians as citizens and gives the sole right to election President and Vice President to the electors (the Electoral College). Gerrymandering (redistricting) is an arbitrary geographical changing of designated areas within cities, which sometimes crosses county lines; race and economic levels are deliberately not referenced as a basic political CYA tactic.
The Civil War was fought by the Confederacy to protect southern States Rights; this is now the Cold Civil War we are fighting nation wide with little protection for the right to vote in jeopardy, among our other civil rights, for the majority of Americans. I was and remain only slightly relieved at the outcome of the 2020 elections; but I feel no safer from our government. At a personal basic level, the Indiana Republican State Senate has removed a portion of the amount of my Public Employees Retirement Fund monthly check beginning January 2022. It doesn’t get more basic than denying me the earned return of money I paid into that fund while working 20 years in Republican City Government. Is that covered in Amendment XIV as “property”?
Can those of us who are from Indiana take just a little bit of pride in Schuyler Colfax? He was instrumental in the passage of the 13th Amendment. We have so little to point to with pride when it comes to those we’ve sent to Washington, we should acknowledge the good.
The Confederacy was set up to be that set of alliances with state’s rights being the operating system. It failed miserably in every way. For example, Robert E. Lee tried to get Jefferson Davis to order several state militias to come to his aid in the last year of the war. The “governors” of those states refused saying that they needed to protect themselves against a Union invasion.
As it was then, this “cold civil war” is race-based and white privilege fear based rubbish. The utter failure of Andrew Johnson and “reconstruction” cemented this animus into the Southern culture forever. Like guns, it will never be eliminated as long as white privilege runs the show.
Conservative Republicans used to “claim” knowledge of the founding of these United States as knowledge only they possessed. It’s clear that this knowledge that they were issued on entertainment media contained lots that just ain’t so.
The founding is still going on as we continue to pursue the aspirations baked into what we started with.
I have noted before that the “originalists” of the Constitution remind me of Christian fundamentalists who interpret the Bible literally.
Much has changed in our society and the world since the founders wrote the Constitution. That’s why we have amendments. The 13th and 14th amendments were written to ensure each citizen regardless of race, creed, gender etc. has equal civil rights, equal protection under the law.
Now in this “cold civil war” we have Republican state legislatures making it more difficult to vote due to the Big Lie. They don’t understand this could affect Republican voters as well. We also have a SCOTUS that has a large majority of conservative justices thanks to Mitch McConnell. They are already refuting challenges to changes in state voting laws that disenfranchise people of color.
If the citizens of this country wish to secure peoples’ right to vote, we will have to create an effective strategy(ies) to get people registered to vote and create an army of transportation to get people to the polls. We also need to find effective ways to motivate the youth to vote and get them to the polls. We will also have to create ways to ensure that people know what to do with their mail in ballots to ensure they are valid. I really wish Biden and his administration could create a national holiday on the day we vote so that people don’t have to choose between going to work and voting.
I applaud the Democrats of Texas for their courage but highly doubt that their strategy will obstruct the Texas GOP’s representatives from making it more difficult to vote in the long term. When that bill passes, Texans will need to get busy implementing the above strategies I have already articulated.
Even though a Civil War had been fought the Confederacy militarily defeated the acceptance of free Black Americans with all the Civil Rights accorded to the White people was resisted in the Confederate States.
Union General Carl Schurz Warned That a “System of Terrorism” Was Taking Hold in the Post-War South in 1865.
Carl Schurz arrived in South Carolina in the middle of July, 1865. He had been sent by new president Andrew Johnson to investigate the condition of the South after the surrender of the Confederate armies and the collapse of the rebel government just two months earlier. He prepared a detailed report for Lincoln’s successor after his return describing what he observed.
Among his comments:
In many instances negroes who walked away from the plantations, or were found upon the roads, were shot or otherwise severely punished, which was calculated to produce the impression among those remaining with their masters that an attempt to escape from slavery would result in certain destruction. A large proportion of the many acts of violence committed is undoubtedly attributable to this motive.
Any attempt by blacks to organize themselves was met with violence. In Mobile, Alabama, 6,000 blacks held a parade celebrating July 4th. In retaliation two school educating black children were burned down.
The opposition to the education of blacks was so intense, Schurz wrote, that even segregated “colored schools can be established and carried on with safety only under the protection of our military forces.”
Threats were made to destroy all school-houses in which colored children were taught, and in two instances they were fired. The same threats were made against all churches in which colored people assembled to worship, and one of them burned. Continued threats of assassination were made against the colored preachers, and one of them is now under special guard… https://longislandwins.com/columns/immigrants-civil-war/carl-schurz-warned-that-a-system-of-terrorism-was-taking-hold-in-the-post-war-south-in-1865/
==================
Jim Crow took hold legally. Even after the Federal Civil Rights Legislation there was fierce resistance. This resistance manifested itself culturally, socially and with violence. The KKK may have been defeated, the ideology of White supremacy was not.
Thank you for the education!
I have put the books that were listed in the Jonathan Bingham link on my reading list.
Yes, we are still working to nail down the “founding” promises, and yes, it is a nice irony to read that the South’s “State’s Rights” baloney turned out to bite Lee, and the Confederacy, in the rear.
Andrew Johnson is at the very bottom of a rating of U.S. Presidents put out by Sienna College, in 2008: based on a “poll of 157 presidential scholars.”
The article from which this info. comes was in the Tampa Bay Times, of2/14/21. The accompanying photos of some of the presidents,includes one of Johnson, and the look on his face is immediately reminiscent, to me , in ant case, of the grossly ugly, angry, look on Justice Kavanaugh’s face in the photo from his confirmation hearing.
As someone who believes greatly in strict constructionism/original intent (not a fan of the term “originalism”) judicial philosophy, I certainly don’t believe that only what happened in 1788 and before matters. I’m not aware that others who share my view of that jurisprudence who actually believe that.
I have an attorney friend who is constantly pointing out the problems with strict constructionism/original intent theory of jurisprudence. I respond “fine, then articulate for me a theory of jurisprudence which guides judges in interpreting constitutional provisions and statutes.”
It’s been years since I first said that and I’m still waiting for the theory to get articulated. My friend’s approach is simply to attack original strict constructionism/original intent theory as being an invalid theory of jurisprudence, while never offering any coherent theory of jurisprudence to use in the alternative. He is apparently fine with what judges do under the guise of judicial interpretation as long as they’re enacting the liberal policies he prefers. Of course, there have been times during which it was the conservative jurists who, untethered by language or legislative intent, adopted preferred conservative policies. We seem to be heading back that way. So it might be good to have a judicial philosophy which actually restrains judges rather than simply hand judges a blank check to do whatever they want.
Peggy Hannon on Schuyler Colfax.
Thanks Ms. Hannon for recalling House Speaker Colfax (R) IN 9th, who led passage of 13th and 14th Amendments. He may have been the most progressive, abolitionist Republican Congressman in IN history.
Paul Ogden: I consider myself an originalist, but my definition isn’t textual. The only working approach to constitutional interpretation, in my view, is neither the crabbed textualism of the so-called conservatives or the “whatever I think it should be” approach you correctly scorn.
I sometimes asked students what James Madison thought about porn on the internet. Obviously, Madison never could have imagined the internet–but he did have clear opinions about the need to keep expression free of government censorship. Today’s courts need to look at the VALUE or PRINCIPLE the founders were trying to protect, and determine how to protect that value in a world the Founders could never have imagined.
A good example is the case (forget the name) involving technology that allowed police to aim a gizmo at a house’s basement from across the street and see if the occupants were growing pot. The court correctly found that use of the technology was a search requiring a warrant, even though no one trespassed on the property. The PURPOSE of the 4th Amendment was to protect an individual’s security in his home, person and effects, and the fact that intrusions had been facilitated by technologies the founders could never have imagined didn’t change that.
Granted, judges may argue/disagree over the purposes of the various amendments, but it is equally ridiculous to claim that today’s judges know what was in the minds and intents of a group of founders who didn’t even agree with each other much of the time.
Gads, I was so excited to see Fourteenth Amendment was under discussion, but Section 3 – which is all over social media – isn’t addressed here. Rats! I keep insisting that folks are reading it wrong – that its purpose isn’t to expel congresscritters guilty of sedition, rather to provide a way for those folks to serve in Congress. Expulsions are handled in Article I. Where’s a con-law scholar when I need one?
Thank you for the diatribe, Sheila. It is always appreciated.
Not being a lawyer, I won’t wade into “original intent”, but will make two observations.
First, like David Honig (I hope I am not misrepresenting) I find that too many “State’s Rights” advocates actually seem to be yearning for something resembling the Articles of Confederation.
Second, following on from Robin, I doubt that the “literalist” biblical readers understand what was obvious to the people at the time were the sins of Onan, or the sins of Sodom. I also don’t know enough about the Second Amendment, but it seems that the court has treated half of it as “commentary”, and doesn’t seem he be reading the same language as my reading of the same terms about militias in the Articles of Confederation, but as I said, I am not an attorney.