MOOC | The Fourteenth Amendment | The Civil War and Reconstruction, 1865-1890 | 3.4.1
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MOOC | The Fourteenth Amendment | The Civil War and Reconstruction, 1865-1890 | 3.4.1


>>In the spring of 1866, as we saw, an impasse had developed between the Republican majority in Congress and President Andrew Johnson over Reconstruction. And the impasse sort of increased the desire of many Republicans to put into the Constitution their understanding of the consequences of the Civil War — beyond the abolition of slavery, which had already been put into the Constitution — and to make that settlement, you know, beyond the ups and downs of Congressional majorities. The Civil Rights Bill had been passed, but it could be repealed by the next Congress. A piece of legislation is not nearly as permanent as a Constitutional amendment. And all sorts of issues were floating around that needed to be resolved: the question of Southern representation with the Three-Fifths Clause gone; the possibility of African-American suffrage; how far to go in protecting the civil rights of the former slaves, and what were those rights, anyway; how to encourage what Northerns felt was loyal government in the South, keeping ex-Confederates out of political power. Congress established what we call the Joint Committee on Reconstruction, a House-Senate committee, which in the winter and spring of 1866 considered numerous, all sorts of Constitutional amendment proposals were floating around. And it hammered out the text of the 14th Amendment. The lead author was John Bingham, congressman from Ohio. Bingham started out by writing particularly the first section, which is the critical one (we’ll get to), sort of like the Civil Rights Act: writing the rights that the former slaves would have into the Constitution, the specific rights. And then after a while he stopped, and he said, this is not the right way to do it. Listing rights is not the right way to do it, because I might miss something, I might miss something that is not important now, but will be important later. It’s much better to make this a statement of general principle, not specific — This is the difference between the Civil Rights Act, which lists particular rights to be enjoyed equally by all citizens, and the 14th Amendment, which puts in general principles to be elaborated and interpreted by future Congresses, future courts, and future generations. The language was hammered how in a series of 8-7 votes in a 15-member committee. You know, there’s a theory of interpreting the Constitution called “original intent.” You try to go back to the original intent of the people who framed it. But with the 14th Amendment, this is almost impossible. 8-7 votes. Then it was debated in Congress. Whose original intent are we talking about? The eight members of the Joint Committee on Reconstruction? The majority in Congress which ratified it? The members of the state legislatures that ratified it? What about the general public? What about African Americans and their intent? There was not a single African American in the Congress at this moment, and yet outside of Congress, black people were putting forward their view of rights. So the notion of the “meaning” of the 14th Amendment is very complicated, and it’s keeping lawyers in business. If you want to go to law school, this is how you’re going to make your money, so listen up. And the 14th Amendment has been used for all sorts of purposes, all sorts of interpretations. Brown v. Board of Education, of course, the great Supreme Court discision outlawing school segregation based on the 14th Amendment, although there is nothing about either schools or segregation in the 14th Amendment, in the specific language of it. And in fact, in that decision, the courts said what Bingham anticipated. They said, you know, we don’t even know what people thought about segregation back then, but it doesn’t matter. It’s important today. We have to interpret it in terms of 1954, not 1866. And today’s racial segregation is a egregious violation of equality, whatever they thought back then. That’s what we call a living Constitution. That’s a different theory than original intent, that the Constitution should be interpreted according to today’s understanding, not the original one. But people are still debating that. The 14th Amendment, as I briefly mentioned, has been used lately to protect the rights of gay people: the gay marriage decision, the Lawrence v. Texas decision. Nothing about gay people in the language of the 14th Amendment, but the concept has expanded in the years, the century and a half, since. More egregiously, the 14th Amendment has been used to create out of whole cloth, frankly, a Constitutional right to what they call “corporate personhood,” that corporations are persons in a legal sense. This is what Governor Romney was going on about a lot in the presidential campaign. And the Supreme Court today has certainly bought into that all the way. And there are cases right now: Does a corporation have religious rights under the 14th Amendment and the 1st Amendment to, you know, to refuse certain kinds of medical coverage to its employees, because they offend the religious views of the corporate directors, or something like that. That’s to be decided very soon. There is no evidence whatsoever that anybody in 1866 thought this had anything to do with corporate personhood. That was a concept created in the 1880s by the Supreme Court and was long used to protect corporations from regulation by state governments. We’ll talk about that as we go along. The basic purpose of the 14th Amendment, particularly the first section, was to protect the rights of the former slaves. But there is no mention of former slaves in here, there is no mention of race. These principles apply to everybody in the society, and that has been extremely important, of course, as we will see. So I want actually look at the text. That’s why I handed out this thing. Take a look at this sheet. And I just want to go over these clauses, these sections, little by little, because this is really a critical part of our Constitution today. But I want to start at the bottom and work our way up. So let’s start with Section 5, okay, which is the same basically as all three of these have: Congress shall have the power to enforce the provisions of this article. Congress. This marks, as I’ve already said with the 13th Amendment, a fundamental shift in the federal system, empowering the Congress to be the sort of monitor of the states, to force the states to abide by the principles put forward in the 14th Amendment. Compare that language (“Congress shall have the power”) with the language of the Bill of Rights, the 1st Amendment, “Congress shall make no law…” Remember that 1st Amendment, Bill of Rights, “Congress shall make no law” respecting the freedom of speech, freedom of religion, etc., etc. The Bill of Rights are a restriction on the federal government based on the idea that the greatest threat to our individual liberties is a too powerful national state. The 13th, 14th, and 15th Amendments are based on the principle that it is the federal government that is the protector of our liberties, that comes out of the Civil War, and that the states are the danger to individual freedom and therefore, the federal government must be exalted above the states to protect the rights of citizens. Of course, this comes out of the Black Codes — it comes out of slavery, which was a state institution. It comes out of the Black Codes, where the Southern states used the power of state governments to try to put blacks back into a condition similar to slavery. But this is a fundamental shift in the federal system. The federal government is now seen — as Charles Sumner, the great Radical Republican senator, there he is, Charles Sumner — said the federal government is now the custodian of freedom. Not a danger to freedom, the custodian of freedom. And that’s one of the principles that these three amendments embody.

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