A Muster Roundtable on the Fourteenth Amendment

This week marks the 150th anniversary of the Fourteenth Amendment to the U.S. Constitution.[1] On July 9, 1868, one of the Reconstruction Era’s boldest innovations became law. Birthright citizenship, equal protection of the laws, and voting rights entered the constitutional pantheon, pointing the way forward for a nation that had been deeply scarred by slavery, racism, and a war that wrought nothing less than a revolution. An unparalleled experiment in interracial democracy was underway.

Here, in 2018, we have not the luxury, however, of looking back to 1868 with collective nostalgia or national self-congratulation. Today, the Fourteenth Amendment is under attack by those who see in its terms unwelcome or overtrod paths to belonging, equality, and the dignity of all persons in the United States. Calls for its repeal or to otherwise radically narrow its interpretation are coming from quarters both refined and popular: at podiums, on placards, in law reviews, via Tweets, and on the op-ed page.

Historians have a role to play, and this week Muster has assembled four scholars, all of whom take the view that to engage the present we must understand the past. Their research permits us to examine closely the Fourteenth Amendment, its purpose, and its effect in its own time. And as we appear fated to revisit the amendment in political and policy terms in the coming months and years, they propose that we enter this debate well equipped with a sense of the history out of which it emanated.

The Fourteenth Amendment’s birthright citizenship clause was the culmination of black activism, but it did not go far enough. In this roundtable, Christopher Bonner and Andrew Diemer explain the origins of Section 1, which provided generally that all persons born in the United States were citizens of the United States. With it was swept aside a half century of legal ambiguity that had enshrouded the lives of black Americans, especially former slaves. In July 1868, they became citizens.

Grassroots ideas became inscribed in the text of the nation’s highest law. Bonner explains that this was a culmination of black activism of the preceding decades — the constitutionalization of a claim to citizenship that had long been made within African American political culture. Diemer examines these same claims and sees in them more that an insistence upon birthright. In his view, the Fourteenth Amendment was only a partial victory for black activists. There is little surprise then that struggles for equality did not end in 1868.

Post-Reconstruction political forces soon compromised the new principle of equal protection of the laws. In her contribution, Hilary Green explains how black Americans saw in the Fourteenth Amendment a promise that, beyond slavery, racism too would be relegated to the past. They were disappointed by the U.S. Supreme Court, a crucible in which the meaning of equality was made and ultimately narrowed. Still, former slaves were emboldened by the language of the Constitution and kept its commitment to equality alive, even when the Supreme Court did not.

Finally, Aaron Astor reminds us of Eric Foner’s long-ago admonition that the Fourteenth Amendment can only be fully understood by a reading of its entire five sections. There were shortcomings built into the Amendment, known to the framers and commentators alike in 1868. Astor urges us to return to these and other “overlooked” sections of the Fourteenth Amendment. Their present day utility may surprise us.

Together, these essays make the case that the Fourteenth Amendment, even at the moment of its ratification, was neither inevitable nor unassailable. Recalling its intent and effect in the nineteenth century tells us that the amendment was both monumental and constrained, and a site of on-going contestation over what it meant to be a member of this nation. In our own time, these brief histories suggest, it is possible to return to the Fourteenth Amendment for lessons — contingencies, cautionary tales, models of struggle, and to access its yet untapped possibilities.

 

[1] “Amendment XIV,” National Constitution Center, accessed July 7, 2018, https://constitutioncenter.org/interactive-constitution/amendments/amendment-xiv. Scroll down the left sidebar to read the text of the amendment.