Editors’ Note: March 2020 Issue

Cracks in the Foundation: The Fourteenth Amendment and Its Limits

In March 2018, we convened a conference titled “The Many Fourteenth Amendments” at the University of Miami. The timing was propitious. Not only did 2018 mark the sesquicentennial anniversary of the amendment’s ratification but also the issues that would come to define the amendment—birthright citizenship, corporate personhood, equal protection, civil rights, disenfranchisement—were front and center in our daily political lives and the immediate relevance of the gathering was apparent to all. The title and the organization of the conference were designed to emphasize the multiplicity of origins, meanings, and legacies of this revolutionary amendment. Four key themes guided the program: the amendment’s genesis and its implications for corporate personhood, citizenship and immigration, and civil rights.

The quality of the papers presented was universally high, but in selecting contributions for this special issue of the Journal of the Civil War Era, we chose essays that both were well grounded in the nineteenth century and would challenge readers to think expansively by casting new light (or throwing new shade) on the amendment’s multiple origins and even more numerous legacies. The Fourteenth Amendment played a critical role in a “Second Founding” of the nation that promised freedom for formerly enslaved people, but that founding was alloyed with more conservative visions of the remade nation. To embrace the new potential the amendment offered, formerly enslaved people together with allies had to confront the deeply racist conceptions of the nation that predated, and long survived, Reconstruction. While born out of the Civil War era, the Fourteenth Amendment would go on to lead a life, indeed multiple lives, of its own, and it is vital for scholars who work in the nineteenth century to understand and grapple with those larger and longer reverberations.

We begin with an ending. The Fourteenth Amendment often is celebrated as a triumph, the keystone of the “Second Founding” that attempted to bring the Constitution and the country in line with the principles of the Declaration of Independence and the Gettysburg Address by introducing a more egalitarian vision of citizenship, which promised social equality, civil rights, and equal protection under the law. Lisset Marie Pino and John Fabian Witt throw cold water on this view by challenging us to think of the Fourteenth Amendment not as a beginning that opened new possibilities but as an ending that foreclosed them. With the Fourteenth Amendment, they argue, Reconstruction switched tracks from one relying on war powers to protect freed people’s rights and status to a far less immediate and reliable one that rested on the courts and malleable interpretations of the law, thus ushering in an era of “paper rights that the federal government failed to vindicate.” When viewed in this way, the Fourteenth Amendment was not the triumph of Radical Reconstruction but rather its “betrayal” and “ending.” The essay forces us to grapple with many of our assumptions about the amendment and to question whether it deserves its celebrated place as a high-water mark of interracial democracy. The authors invite us to speculate, at least briefly, on what might have been accomplished without relying on the amendment to deliver on the promise of emancipation and to entertain a conflicted and perhaps darker view of a revolutionary amendment that, in this telling, may have forestalled revolution.

Stephen Kantrowitz urges us to consider the Fourteenth Amendment and US citizenship from another unfamiliar perspective, as part of the United States’ continued imperial expansion onto sovereign Indian lands. Tracing their twin genealogies, he reveals how African American and Native American citizenships ran in parallel courses, intersecting through legislation and the Fourteenth Amendment but possessing profoundly different origins, intents, and implications. For African Americans and their white allies, nonracial national citizenship was a long-sought and hard-fought milestone in the struggle for racial equality. However, lawmakers who advocated for Native American citizenship during this period had something different in mind: namely, land and how to take it. Whereas for African Americans, citizenship stood in opposition to slavery and white racism, for Native Americans, it was the antithesis of sovereignty. By “reducing” Native Americans to citizens, land-hungry white Americans could more readily strip them of their autonomy and with it their recognized, legal claims to valuable lands. Thus, the expansion of national citizenship to Native Americans was “a tool of the conqueror.” By expanding the story of national citizenship to include Native Americans during the Civil War era, Kantrowitz confronts us with a very different and disturbing vision of citizenship: “as instrumental, as compulsory, and as war by other means.”

Evelyn Atkinson’s article explores the amendment’s legal and political aftershocks in another unexpected direction. Set in Reconstruction California, her work shows how debates surrounding Chinese exclusion and “coolie” labor were inextricably and deliberately linked to the claiming of constitutional rights for corporations under the Fourteenth Amendment. By following the history and logic of In re Tiburico Parrott (1880), she explains how in subsequent rulings the Supreme Court would come to assert the existence of corporate personhood. The constitutional rights of corporations and Chinese labor were bound together from the very beginning, argued by the same lawyers, in the same courtrooms, and often in the same breath. That the claims of these two seemingly divergent interests could evolve in tandem reveals the “striking power of corporations in shaping the federal courts’ interpretation of the Fourteenth Amendment.” Building on this insight, Atkinson prompts historians to grapple directly with the central role that corporations played in crafting Reconstruction-era arguments about free labor and equal treatment. Indeed, while many of the protections won by racial minorities under the Fourteenth Amendment would be chipped away by subsequent court decisions, corporations continued to employ the amendment “as a shield.” Very much part of the burgeoning literature on “Greater Reconstruction,” Atkinson’s work casts a bright light on the darkly ironic process by which political and legal fights over the status of some of the nation’s most powerless people resulted in new guarantees of rights for its most powerful.

If corporate protections won in this period have persisted, civil rights protections have witnessed a transformation, as Christopher Schmidt’s essay reveals. This work takes a long view of civil rights, from the antebellum era through the twenty-first century, and it traces “two genealogies of civil rights, one of a concept, the other a term.” The authors of the Civil Rights Act of 1866 and the framers of the Fourteenth Amendment crafted the category of civil rights to include specific protections: the right to make contracts, to own property, to bring a lawsuit, to testify in court, and to legal protection of persons and property. In light of this, Schmidt shows, civil rights became “a language of limitation” that could close off access to broader conceptual rights, among them access to public accommodations including lodging, streetcars, trains, restaurants, or theaters. Nevertheless, during and immediately after Reconstruction, the concept and category of civil rights operated together in complementary, if complicated, ways. But by the time the Supreme Court issued its infamous decision in the Civil Rights Cases (1883) the concept and the category had diverged. This shift has enduring consequences, as Schmidt shows, and when twentieth- and twenty-first-century activists, from the NAACP to Freedom to Marry, sought to protect civil rights, the legal pathways and language available to judges and activists to access the many facets of civil rights “had been lost.”

Readers of this special issue might well conclude that these historians of the Fourteenth Amendment share a somewhat gloomy outlook. They would not be entirely wrong, but, in this, these essays have lots of recent company. Certainly, the historiographic trend has been to view the triumphant narrative of the Civil War and its consequences—within which the passage of the Fourteenth Amendment represents a culmination—with growing skepticism. Instead, historians of the Civil War era have been inclined to highlight unintended and secretly intended consequences, to expose missed or squandered opportunities, to question motives, and, most of all, to calculate the fearsome costs. Scholars of race and civil rights have begun to rewrite, and in some cases unwrite, a freedom narrative that has emphasized the emancipatory forces of the earliest days of Reconstruction in effect downplaying the tragedies and failures of the postemancipation United States. Yet the Fourteenth Amendment has not found its place in this emerging trend, and it has yet to be fully incorporated into the scholarship that stresses the limits of Reconstruction. By shifting our focus away from the optimistic view of the amendment, these essays allow us to see how the “Second Founding” also rested on the cornerstones of capitalism and racial exclusion, undermining the most lofty aspirations of the era of emancipation. By showing another side of the amendment, one much less hopeful, the essays in this special issue not only break important new ground in the scholarly exploration of the continually unfolding history of this vital living amendment but also speak directly to the historical and historiographical moment in which we find ourselves one hundred and fifty years later.