The battle for the US Constitution: how the 14th Amendment is under threat

Without that Amendment – the Fourteenth, passed by Congress in 1866 and ratified in 1868 – the course of the Civil Rights movement would have been dramatically different. The original Constitution did not define citizenship, nor did it give any guarantees of equality. There was nothing in the Constitution of 1787 that would have given the Supreme Court any grounds to interfere with segregated schools, or buses or anything else. The Fourteenth Amendment did not alter the Republic’s institutional form, perhaps, but it did something of equal importance: it enabled any group of Americans to turn to the Federal government if they faced discrimination and gave them the legal tools to demand redress, just as King did on that December night in Alabama.

_{Dr Martin Luther King rides the Montgomery bus with Rev Glenn Smiley of Texas, 1955. (Bettmann/Getty Images)}

Probably the most extraordinary of the many extraordinary outcomes of the American Civil War (1861–65) was not just that slavery was abolished, but that within three years those former slaves were granted full citizenship and the equal protection of the laws – something that would have been unimaginable even a few years earlier and which certainly had not happened when slavery had been abolished in the British Empire.

The basic claim of slavery – that human beings could be bought and sold as property like real estate or a horse – was possible in the ‘land of the free’ because the courts defined black people as so profoundly inferior that they were susceptible to enslavement. There was nothing in the Constitution to prevent the US Supreme Court ruling in 1857 that no black person could be a citizen of the United States. Few in America at that time would have predicted that in just a decade a revolutionary war would usher in such a different world that Congress would supplant the Court’s narrow proslavery restriction of citizenship to people deemed white with a bold, universal declaration. The first and most consequential clause reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…[and that no state government could] deprive any 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.

The context is crucial to understanding how this Amendment came to be passed. Former leaders of the Confederacy, defeated in the war and resentfully accepting the reality of slavery’s demise, passed laws designed to keep freed men and women in a position as close to slavery as possible. But the Congress in Washington, dominated by Republicans who wanted to “secure the fruits of victory”, still had the whip hand. Genuinely anxious that the South would rise again, congressional leaders revolutionized the Constitution to give themselves and the president the power – and indeed the responsibility – to intervene to protect the rights of black people, now for the first time defined as being citizens, from being abridged by a state government. The man who drafted the important clause was Congressman John Bingham from Ohio, an almost forgotten figure whose stature should arguably be as great as James Madison.

Republicans like Bingham held what at the time were very progressive views about racial equality, but they were also motivated by more hard-headed considerations: if African-Americans in the South were entitled to vote, own property and serve in office then they would constitute a bulwark of “loyal” citizens in still very unstable states that were recently in insurrection. They could help marginalize former Confederate leaders (who were disfranchised in a separate clause of the Amendment) and support the Republican Party in doing so.

As a direct result of the Fourteenth Amendment, more than 2,000 African-Americans served as judges and held elected office in the South in the years after the Civil War. For two years there was even a black lieutenant governor of South Carolina. But – and this is a familiar story – by the early 20th century these gains had been reversed. Southern states (and indeed, though this is less often acknowledged, some northern states) took the vote away from black people in indirect ways – through poll taxes or literacy tests, or a requirement that your grandfather had been a voter. As the great black intellectual WEB Dubois wrote, “the slave went free; stood a brief moment in the sun; then moved back again toward slavery”.

The proximate cause of this great unravelling was the often-violent determination of Southern whites to reassert total racial supremacy, through laws disfranchising black people and imposing ‘Jim Crow’ laws – a sweeping system of racial apartheid. But the white South could do this only because the US Supreme Court systematically undermined the Fourteenth Amendment.

_{The first page of the 14th Amendment of the US Constitution, ratified in 1868. (Granger, NYC/Alamy Stock Photo)}

The culmination of this judicial counter-revolution was the 1896 Plessy v Ferguson decision that decreed segregation entirely compliant with the Fourteenth Amendment on the utterly fictional grounds that there was nothing inherently unequal about separation. For half a century after Plessy the Federal government largely ignored the constitutional duty the Fourteenth Amendment gave it to prevent states discriminating on the basis of race. Yet it was still there, dormant. Ready to be resuscitated by the Supreme Court in Brown [in 1954], and ready to be invoked by King in his crusade to make his cause respectable, mainstream and utterly reasonable.

Without the Fourteenth Amendment there could have been no Civil Rights Act in 1964 or Voting Rights Act in 1965 – those drastic Federal interventions in state-level law-making would have had no constitutional basis. And had a new amendment needed to have been passed in the 1960s to enact King’s agenda, there was a blocking minority of Southern states to stop it. The result would have been far greater political impasse, perhaps more bloodshed, perhaps even a new civil war.

Yet this story, central to modern US history as it is, barely scratches the surface of why the Fourteenth Amendment matters so much. It was the basis of the Supreme Court’s recognition of gay marriage in 2015 (since preventing marriage on the basis of gender would contravene citizens’ “equal protection of the laws”). It also forms the grounds on which the Federal government is seeking to overturn state laws discriminating against transsexual people. No marginalized group in modern American history could have appealed to the Federal government for redress without Congressman Bingham’s wording, much to the chagrin of their opponents.

But if the Amendment has never been without its critics, many have been on the left rather than the right. At around the same time that the Supreme Court was shrinking “equal protection” to include segregation, it was expanding “persons” to include corporations. “Corporate personhood” – the doctrine that a company has “rights” like a human being – was not invented by the Fourteenth Amendment, but in recent years this manoeuvre proved highly valuable to lawyers successfully arguing before the Supreme Court that campaign finance laws restricting corporate donations to political campaigns contravened a corporation’s right to the equal protection of the laws.

The Supreme Court has also proved itself more than willing to interpret the “equal protection” clause to strike down state labour laws. In Lochner v New York (1905), for example, a majority of justices argued that people working in horrific conditions in bakeries in New York City had the “right” to work whatever hours their contract stipulated, so a state law restricting the working day to 10 hours was unconstitutional. It was the Court’s willingness to read the “right to contract” into the Fourteenth that led some progressive reformers in the early 20th century, including the famous liberal justice Louis Brandeis, to call for the Amendment’s repeal.

Nowadays, though, it is conservatives who are most likely to call for the Amendment’s repeal – mostly because of that clause about “all persons born” in the United States being citizens. One of the great examples of unintended consequences in the history of politics, it was designed as a way of ensuring that former slaves were included – but what about the children who are born in the US of parents who crossed into the country illegally? This is at the heart of the current US debate about immigration. One of the issues that has played well for presumptive US Republican presidential candidate Donald Trump is his vow to end the “birthright citizenship” granted by the Fourteenth. Former Republican candidate Ted Cruz, who withdrew from the race earlier this month, is also on record as calling for repeal. And with Trump’s likely nomination, this is now a mainstream issue.

_{Donald Trump, the Republican presumptive nominee in the 2016 presidential race, at a rally at the Charleston Civic Centre in Charleston, West Virginia on 5 May 2016. (Photo by Mark Lyons/Getty Images)}

One of the peculiar features of US politics is how, sooner or later, every political issue becomes a constitutional issue. Gun control, abortion, school prayer, campaign finance, gay marriage, race relations – and now immigration. All these things are substantive policy questions in their own right, but it is hard, in America, to talk about them only on that level. The Fourteenth Amendment is not the only part of the Constitution that matters, but as the revolutionising measure that gave the national government responsibility for the rights and privileges of everyone, its presence, for better or worse, lurks everywhere.

The American Civil War was “the crossroads of our being,” said a famous chronicler of that conflict. This was true in so many ways, but we have forgotten how far the war paved the way for a second constitutional founding, a political and judicial revolution whose after-effects still reverberate today.

Dr Adam I P Smith is a senior lecturer in University College London’s department of history. He presented a documentary on BBC Radio 4 about the Fourteenth Amendment in August. Smith also delivered a lecture on this subject at the UCL Festival of Culture in May.

To find out more about Smith, visit www.adamipsmith.com.