Tag Archives: 14th Amendment

Originalism And The Second Founding

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!

 

 

Braun: Another Indiana Embarrassment

As if the election of a truly abysmal legislature, courtesy of gerrymandering , wasn’t bad enough, Indiana’s voters keep giving the state hugely embarrassing statewide officials. I have posted several times about Todd Rokita, Indiana’s widely-despised egomaniac Attorney General; currently, it’s intellectually and morally-challenged Senator Mike Braun who is reflecting negatively on Hoosiers.

The Washington Post was one of several media outlets reporting on Braun’s defense of “state’s rights” during the confirmation hearings for Judge Jackson.

Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
 
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.

 Heather Cox Richardson had a historically-grounded response to Braun’s assertion that the country would be “better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”  As Richardson reminds us, the whole point of the 14th Amendment was to “homogenize” the fundamental rights of American citizens. 

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states. 

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities. 

Richardson points out that it’s impossible to limit an evisceration of the Fourteenth Amendment to a single issue. If states are empowered to award or deny rights as they wish –if they are free of federal restraints on their ability to strip reproductive rights from women, for example–“the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.”

Voters need to realize that the GOP’s assault on fundamental rights goes well beyond efforts to overturn Roe. Tennessee Senator Marsha Blackburn has challenged  Griswold v. Connecticut, the decision that legalized contraception, and Texas Senator John Cornyn has attacked Obergefell, the decision recognizing same-sex marriage.

Braun and the other Neanderthals in the GOP would undoubtedly cheer such results. Most Americans, not so much. Richardson points out that they are “quite literally” making the same “states’ rights” argument used to justify enslaving people before the Civil War.”

More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Eviscerating the Fourteenth Amendment provision that prohibits states from withholding the “privileges and immunities” of U.S. citizenship from their citizens would invalidate the existing jurisprudence of Equal Protection, a jurisprudence that requires all states to respect the fundamental rights protected by the Bill of Rights–to “homogenize” them.

Richardson points out that Braun’s desired reversal of Loving v. Virginia would criminalize the marriages of both Judge Jackson and Justice Thomas in certain states.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

Braun is today’s version of  a mainstream Republican, and Richardson revisits a frequently-quoted paragraph written a decade ago by respected scholars Thomas Mann and Norm Ornstein, who concluded

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

So we’ve seen–and it has only gotten worse.

These days, as the Jackson hearings are painfully illustrating, Republicans have made both civil discourse and  basic, substantive governance virtually impossible.

 

As Long As I’m Revisiting The Constitution

A couple of days ago, I suggested investing the Electoral College with some of that “original intent” conservative jurists love to apply to our anything -but-original problems. Today, I’m revisiting–or to be more accurate, actually visiting for the first time–another part of the Constitution.

I’m going to file this under “you learn something new every day.” Or perhaps under “Well, this is certainly interesting.” (Or even more likely, “I must be missing something!”)

I don’t know why I haven’t ever focused on the language of Section 2 of the incredibly important Fourteenth Amendment. That section reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. (emphasis supplied)

Later Constitutional amendments extending the franchise would obviously mandate a somewhat different and more expansive reading of Section 2, but the language certainly would seem to provide a possible remedy to the rampant vote suppression being documented in several states.

This is not a subject I have previously researched, so I’d be grateful to any election lawyers–or other knowledgable folks– out there reading this who might answer the following questions:

  • Has there ever been litigation on the basis of this Section?( If so, please cite; if not, I assume the difficulty in establishing evidence of the percentage of votes suppressed would account for the lack.)
  • Who would have standing to bring a lawsuit? (It would seem to me that anyone improperly prevented from voting in a state would have standing, but the Court has narrowed standing doctrine in several ways–unfortunate ways, in my opinion–so perhaps not.)
  • What would count as probative evidence of the percentage of legitimate votes suppressed, the efficacy and intentional nature of suppression tactics, and how would a plaintiff acquire and verify such evidence? (Would the evidence compiled in Stacy Abrams’ new lawsuit suffice?)

If the evidentiary problems could be surmounted, wouldn’t this section provide a fitting remedy for the games currently being played by the GOP?

Wouldn’t it be wonderful if, for example, Georgia lost a couple of Congressional seats as a result of Brian Kemp’s egregious voter suppression tactics?

If lawsuits based on Section 2 are tenable, I would think simply bringing those suits–even if they were ultimately unsuccessful–would have a salutary effect. Perhaps the threat of losing representation would make some of those Republicans who are enthusiastically engaging in anti-democratic efforts to keep “some people” from voting (yes, Mississippi, we’re looking at you) might have second thoughts…..

I’m obviously missing something, but I’m not sure what. That said, I’m sure one of my more erudite readers can supply the answer.