For The New York Times
The month of July marked the 150th anniversary of the Constitution as we know it — the glorious, flawed, unexpected moment when our basic law was transformed into a charter of human rights. Its glories define us. But so do its flaws.
I refer to the 14th Amendment, whose ratification was certified on July 28, 1868.
It shapes almost every issue we debate today: immigration, racial and gender equality, voter suppression, free speech, corporations and federal power. Its history destroys the notion that freedom grew steadily over time — that the founders bestowed liberty on white men, which was gradually extended to others. Rather, the amendment reinvented freedom. It established birthright citizenship, required “due process” and “equal protection” of the law for everyone and put the federal government in the business of policing liberty. It removed race and ethnicity from the legal definition of American identity.
Before the 14th Amendment, the Bill of Rights protected almost no one. In Barron v. Baltimore, Chief Justice John Marshall wrote for a unanimous Supreme Court in 1833 that those original amendments restrained only the federal government, not the states, and so did not guarantee individual freedoms. Through the incorporation doctrine, the 14th made the Bill of Rights apply to the states, giving those first amendments the powerful role they play today. And we owe this monumental amendment to the self-assertion of black people.
It’s often called one of the “Civil War Amendments,” along with the 13th (abolishing slavery) and the 15th (prohibiting racial limits on the right to vote). But almost no one anticipated such a far-reaching measure during the war, or even after the Confederacy collapsed in May 1865. In 1860, four free states had constitutional prohibitions on the immigration of black people across their borders; in 1865, only five of 20 Union states allowed black men to vote. A race-neutral definition of citizenship and individual rights, let alone black enfranchisement, seemed absurd to most white men.
A political crisis driven by African-Americans changed everything. During the war, they defied white expectations by starting what the historian Steven Hahn calls the greatest slave rebellion in history, seizing on the upheaval of war to flee and fight for freedom. Afterward, they asserted themselves in ways large and small, from picking their own surnames to insisting on equal dignity, especially in the case of former Union soldiers.
They went further, organizing conventions, political clubs, Union Leagues. The federal superintendent of Negro affairs in North Carolina remarked in astonishment at how people who had been kept uneducated by force “form societies, leagues, combinations, meetings, with little of routine or record, but much of speech making and sage counsel.” They flooded Congress and military headquarters with petitions and appeals for aid.
It prompted a backlash. Southern states passed “black codes” that virtually re-enslaved African-Americans. Confederate veterans killed countless people and organized into the Ku Klux Klan and similar groups. Deadly police riots in Memphis and New Orleans in 1866 began with attacks on black veterans and political activists. This oppression overturned Northern assumptions. Even unapologetically racist voters and politicians reacted with outrage: Here were rebels, seen as traitors, attacking loyal black people, including many Union veterans. Something had to be done.
Specifically, something had to be done to stop President Andrew Johnson. The stubborn and insulting Johnson, Lincoln’s successor, sided with the white South, which drove Congress to pass the first Civil Rights Act over his veto. The battle led Republicans to conclude that the Constitution itself had to be changed.
The result touched far more than the newly emancipated. Before the Civil War, states had restricted speech and the press (often singling out abolitionist literature), imposed religious and racial tests for voting and funded Christian denominations; Connecticut and Massachusetts established official state churches for many years. One of the 14th Amendment’s drafters, John A. Bingham, seized the moment to stop this, declaring his intention “to arm the Congress of the United States, by the consent of the people, with power to enforce the Bill of Rights.” Constitutional scholar Akhil Reed Amar argues that the framers’ comments show how even the Second Amendment must be read in light of the 14th. All in all, this was a revolution — a broad reimagining of individual rights and federal power.
But if white Americans reconstructed the law, they did not reconstruct themselves. Bigotry suffused the debate and infiltrated the amendment itself. In a half-step toward enfranchising the freed people, the 14th Amendment penalizes states that withhold the vote from “male” citizens — the first use of that adjective in the Constitution. Historian Joshua Paddison notes how Western congressmen complained that ethnic Chinese would become citizens, stating that “heathens” had no place here. The 14th’s framers replied that birthright should apply to all and that restrictions in naturalization law would minimize the problem. Asians became a lasting focus of nativist obsession over immigration, seen in the Chinese Exclusion Act of 1882.
Prejudice diluted the 14th Amendment’s results. As Adam Winkler writes in “We the Corporations,” for many decades the Supreme Court gave greater protection under the amendment to corporations than to African-Americans. After the federal government allowed Southern white violence to overwhelm Reconstruction, the justices allowed segregation in Plessy v. Ferguson, and, in Korematsu v. United States, the imprisonment of American citizens solely for their Japanese ancestry. And the justices first embraced the incorporation doctrine only in 1925, in Gitlow v. New York, the case of a revolutionary socialist who had been arrested for advocating the overthrow of the government — showing again that it takes dissenters and outsiders to expand freedom for all.
The 14th Amendment is felt by all of us, every day. If it did not invent freedom, it transformed and strengthened it, codifying a universal definition of individual rights and national identity that has been an example to the world. But the failings of those who wrote it linger. Many of us still have not internalized the idea that an American can look like anyone in the world. Whoever calls the police on a peaceful, unarmed black or brown person is acting in a long, grim tradition. Complaints about the immigration of Muslims, Latin Americans or others restate the original arguments against the 14th as opening the doors to “heathens” and “pagans.” Even debates over the intrusiveness of the federal government and the rights of corporations are rooted in the amendment that forever altered Washington’s role in American life.
The Americans of 150 years ago created something greater than their own limitations. Yet the law does not enforce itself; it is a tool used by human beings. Over and over again, Americans have thrown it to the ground, sometimes in the midst of praising it. At this moment, the question is not whether we will pick it up again, but whether we will break it.