The Contested Meanings of the Fourteenth Amendment

This weekend, we share the guest editor’s conclusion to our roundtable on the Fourteenth Amendment. Earlier contributions can be found in order here, here, here, here, and here. Thank you for following along with us as we reevaluated and commemorated the amendment’s 150th anniversary.

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Last Sunday, I gave a public talk in a local Washington, D.C., bookstore about citizenship. I did what many historians are guilty of when speaking about our research—I assumed that my audience had a basic knowledge of the Reconstruction era amendments and their general meaning.

This was of course a naïve assumption, given how infrequently Reconstruction expressly enters public consciousness in today’s world. During the Q&A, a gentleman in the audience very nicely asked me if I might go back and review the basic premise of the Fourteenth Amendment, and while I was at it, if I could explain the meaning and implications of the Thirteenth and Fifteenth Amendments as well. Such a request made sense, given that many laypeople have not often examined the admittedly complicated Constitutional language.

This general lack of clarity about the Fourteenth Amendment and its companions is perhaps reason enough for us to have convened four scholars to participate in a roundtable discussion of the Fourteenth Amendment. For some Americans, to invoke the amendment is to provoke a question about what precisely it was. What was it intended to accomplish, but even more so, what might be its implications for us today? This roundtable is one forum for exploring the Fourteenth Amendment in its entirety, as Aaron Astor has urged us to consider all five of its clauses.

As you might guess, I could not, during that bookstore Q&A, leave my remarks as a simple recitation of the Fourteenth Amendment’s clauses. Historians know that meaning frequently lies not in the text of a given law, even one as highly situated as this amendment. Instead, the history of law is best found in the contestations around its meaning and interpretation. It is in those debates, some of which happened in legislatures and in courts, and in news commentary and on the streets, where the text of a law is given its full meaning. It is there that we look for the deeper history of the Fourteenth Amendment.

Chris Bonner and Andrew Diemer have explained a long and essential episode in the history of the Fourteenth Amendment: the decades of black activism that preceded its ratification. Their careful reading of the antebellum colored conventions makes plain that long before members of Congress or state legislatures had the opportunity to contemplate the terms of the amendment in 1867 and 1868, African American activists were generating a debate over their significance. These activists engaged in a struggle over these ideas, including birthright citizenship and equal protection, which would be at the heart of the amendment’s first section. The history of the Fourteenth Amendment is the history of these decades of struggle by black Americans to imagine and insist upon a constitutional amendment that would embody their claims as Americans.

Contestation also very quickly came to characterize thinking about the Fourteenth Amendment after its ratification. Hilary Green has illustrated in her essay how quickly the nation’s high courts began to impose their own interpretations upon those who sought relief by way of the amendment’s terms. This was a grand and highly visible confrontation between high court jurists and everyday Americans who were attempting to use the amendment’s promises to further their claim to rights. This too is the history of law–not simply a history of judicial thinking, but the story of how individuals disputed the contradictory interpretations of judges that arose in the weeks and years that followed ratification.

There are also examples of how, in the very drafting of the amendment, contestation was silently embedded within its structure. Aaron Astor directs our attention, for example, to how the amendment spoke explicitly about the claims of African American men to voting rights. Still, it elided and erased the claims that American women were making on the body politic and on the Constitution at the same moment. Insight into this dimension of the Fourteenth Amendment requires historians to deliberately look behind, underneath, and inside the language of the text, burrowing down to the social and political context in which it was adopted. When we do this we discover the disputes and disagreements brewing just below the surface.

Each of these essays has also reminded us that arguments about the Fourteenth Amendment were not simply a function of the political climate of Reconstruction, or of the early judicial interpretations in the years that followed. To the contrary, the amendment has always been—and will continue to be—a site for confrontation between individuals and the state, and between disparate visions of citizenship and equal protection of the law. In this sense we might be tempted to say that little has changed since 1868. In 2018, as we remember its sesquicentennial anniversary, the amendment remains (as it always has been) a founding document that never defined the nation, though it did set the terms for the central debates over its character.