I’m sending out my weekly blog a couple of days early because today is the 150th anniversary of the adoption of the 14th amendment to the Constitution. It was ratified on July 9, 1868, and on July 29, Secretary of State William Seward declared that it was officially ratified and now part of the Constitution.
This amendment is one of the most litigated of the parts of the Constitution because it did four important things. First, it established the right of citizens to due process in relationship to the government. Second, it provided equal protection to all citizens. Third, it established the idea of “birthright” of citizenship – if you are born “here” in USA or our territories, you are automatically an American citizen. Fourth, it indicated for the first time that state and local governments were subject to these three steps.
This 14th Amendment has had a difficult time in American history. Even while it was being ratified, white Southerners were working to undercut it, and indeed we did undercut it through a reign of terror and legislative manipulation. It would take almost 100 years before it would gain even a minimal force of law through the Civil Rights Acts and the Voting Rights Acts of 1964-65. In a terrible but not surprising decision in 2013, the US Supreme Court gutted the Voting Rights Act by taking out its “special” enforcement status for those states whose history indicated an unwillingness to adhere to the 14th Amendment. It should be no surprise that decision (Shelby v. U.S.) came out of the state of Alabama, a state as Martin Luther King, Jr., said in his 1963 speech: “with its governor having his lips dripping with the words of interposition and nullification.”
This struggle over the 14th Amendment is so great because, in many ways, it is the crux on which American history and indeed the idea of constitutional government hinges – it always seems to be hanging in the balance. Do we believe in the idea of equality or not? Our history says “no,” for the most part, but the 14thAmendment is among our better angels, urging us to say “yes.” Many of our leaders have understood the importance and the meaning of this Amendment. Thurgood Marshall was one who understood it, and he put it this way in his Bicentenial speech in 1987: “While the Union survived the Civil War, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14thAmendment….guaranteeing equal protection of the laws.”
Marshall correctly understood that the intent of the Constitution in its beginning was to keep power in the hands of white men of property, and so there was no mention of the full humanity of women or of people of African descent or Native Americans. Yet, the idea of equality was so powerful and so electric, that the white men of property could not confine it to themselves. Women heard their names called. African-Americans heard their names called. Native Americans heard their names called. Latinx Americans heard their names called. Asian-Americans heard their names called. Poor people heard their names called. LGBTQ people heard their names called. The power of the 14th Amendment is to speak to all of us: the power of the idea of equality is calling to us all. That is one of the great things that we should remember as we celebrate this powerful amendment to the Constitution.
It is not just progressives who have understood the meaning of this 14thAmendment. Regressives have understood it too. That’s why the fight over the 14thAmendment continues. Those who speak of being “originalists” over the authority of the Constitution are seeking to take us back to the days of the origins of the Constitution, when white men of property were seen as those entitled to power. There is a lot of talk these days about the changing demographics in America, with young people and people of color becoming the majority in the USA sooner than many of us realize. Some progressives have hopes in this demographic change, and I have hopes too. Yet, we should realize that old white men (and women, it seems, since the majority of them voted for Trump) will not yield this power easily, if we yield it at all. Limits on voting rights, purging voter rolls, overt gerrymandering – all designed to take us back to the original Constitution. And, now the Supreme Court seems to taking a hard turn towards this regressive status, so perhaps a Dred Scott decision or a Plessy decision awaits us in the near future.
So, let us give thanks for those who worked so hard for this amendment and others to follow. Take time this week to read the 14th Amendment – our very lives as a nation may depend on our ability to believe and to live it. Then, while you still can, make sure that you are registered to vote and that all your friends, neighbors and colleagues are registered to vote – these November elections will tell us if we are moving with the 14th Amendment or against it.