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.
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