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THE FOURTEENTH AMENDMENT TO THE CONSTITUTION  
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Heather Cox Richardson
July 8, 2024
Letters From an American – July 8, 2024
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_ The Fourteenth Amendment gave the federal government the power to
protect individuals even if their state legislatures had passed
discriminatory laws. _

Protesters carry a sign highlighting the promise of equal protection
to all people under the Fourteenth Amendment.,

 

On July 9, 1868, Americans changed the U.S. Constitution for the
fourteenth time, adapting our foundational document to construct a new
nation without systematic Black enslavement. 

In 1865 the Thirteenth Amendment to the Constitution had prohibited
slavery on the basis of race, but it did not prevent the establishment
of a system in which Black Americans continued to be unequal. Backed
by President Andrew Johnson, who had taken over the presidency after
actor John Wilkes Booth had murdered President Abraham Lincoln, white
southern Democrats had done their best to push their Black neighbors
back into subservience. So long as southern states had abolished
enslavement, repudiated Confederate debts, and nullified the
ordinances of secession, Johnson was happy to readmit them to full
standing in the Union, still led by the very men who had organized the
Confederacy and made war on the United States. 

Northern Republican lawmakers refused. There was no way they were
going to rebuild southern society on the same blueprint as existed
before the Civil War, especially since the upcoming 1870 census would
count Black Americans as whole persons for the first time in the
nation’s history, giving southern states more power in Congress and
the Electoral College after the war than they had had before it.
Having just fought a war to destroy the South’s ideology, they were
not going to let it regrow in peacetime.

Congress rejected Johnson’s plan for Reconstruction.

But then congressmen had to come up with their own. After months of
hearings and debate, they proposed amending the Constitution to settle
the outstanding questions of the war. Chief among these was how to
protect the rights of Black Americans in states where they could
neither vote nor testify in court or sit on a jury to protect their
own interests. 

Congress’s solution was the Fourteenth Amendment.

It took on the infamous 1857 _Dred Scott v. Sandford _decision
declaring that Black men "are not included, and were not intended to
be included, under the word 'citizens' in the Constitution, and can
therefore claim none of the rights and privileges which that
instrument provides for and secures to citizens.” 

The Fourteenth Amendment provides that “[a]ll persons born or
naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside.” 

The amendment also addressed the _Dred Scott_ decision in another
profound way. In 1857, southerners and Democrats who were adamantly
opposed to federal power controlled the Supreme Court. They backed
states’ rights. So the _Dred Scott_ decision did more than read
Black Americans out of our history; it dramatically circumscribed
Congress’s power. 

The _Dred Scott_ decision declared that democracy was created at the
state level, by those people in a state who were allowed to vote. In
1857 this meant white men, almost exclusively. If those people voted
to do something widely unpopular—like adopting human enslavement,
for example—they had the right to do so. People like Abraham Lincoln
pointed out that such domination by states would eventually mean that
an unpopular minority could take over the national government, forcing
their ideas on everyone else, but defenders of states’ rights stood
firm. 

And so the Fourteenth Amendment gave the federal government the power
to protect individuals even if their state legislatures had passed
discriminatory laws. “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws,” it said. And
then it went on to say that “Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.” 

The principles behind the Fourteenth Amendment were behind the 1870
creation of the Department of Justice, whose first job was to bring
down the Ku Klux Klan terrorists in the South. 

Those same principles took on profound national significance in the
post–World War II era, when the Supreme Court began to use the equal
protection clause and the due process clause of the Fourteenth
Amendment aggressively to apply the protections in the Bill of Rights
to the states. The civil rights decisions of the 1950s, 1960s, and
1970s, including the _Brown v. Board of Education_ decision outlawing
segregation in public schools, come from this doctrine. Under it, the
federal government took up the mantle of protecting the rights of
individual Americans in the states from the whims of state
legislatures.

Opponents of these new civil rights protections quickly began to
object that such decisions were “legislating from the bench,”
rather than permitting state legislatures to make their own laws. They
began to call for “originalism,” the idea that the Constitution
should be interpreted only as the Framers had intended when they wrote
it, an argument that focused on the creation of law at the state
level. Famously, in 1987, President Ronald Reagan nominated Robert
Bork, an originalist who had called for the rollback of the Supreme
Court’s civil rights decisions, for a seat on that court. 

Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the
importance of the Fourteenth Amendment to equality: “Robert Bork's
America is a land in which women would be forced into back-alley
abortions, blacks would sit at segregated lunch counters, rogue police
could break down citizens' doors in midnight raids, schoolchildren
could not be taught about evolution, writers and artists could be
censored at the whim of the Government, and the doors of the Federal
courts would be shut on the fingers of millions of citizens for whom
the judiciary is—and is often the only—protector of the individual
rights that are the heart of our democracy….”

From the perspective of 2024, Kennedy’s comments seem prescient, but
the country could go even further backward. The 2024 Republican Party
platform, released today, calls for using the Fourteenth Amendment not
to protect equal rights for Americans from discriminatory laws, as
those who wrote, passed, and ratified the amendment intended. Instead
it calls for using the Fourteenth Amendment to protect the rights of
fetuses from the time of fertilization. It says that states should
start passing laws protecting those rights: so-called fetal personhood
laws that have their roots in the 1960s and were considered a fringe
idea until about fifteen years ago. Those laws prohibit all abortion,
in vitro fertilization (IVF), and several forms of contraception.  

Saying states should pass such laws echoes the language Trump has used
to try to avoid the Republicans’ extreme and unpopular abortion
stance by claiming, as the Supreme Court did in the _Dobbs v. Jackson
Women’s Health Organization _decision, that states alone should
write laws covering abortion. But in its reaction to the Republican
platform today, the antiabortion Susan B. Anthony Pro-Life America
organization made it clear that the platform’s reference to the
Fourteenth Amendment was designed to open the way for a national
abortion ban. The Fourteenth Amendment, after all, gives
Congress “power to enforce, by appropriate legislation, the
provisions of this article.”

“It is important that the [Republican Party] reaffirmed its
commitment to protect unborn life today through the 14th Amendment,”
the organization said in a statement. “Under this amendment, it is
Congress that enacts and enforces its provisions. The Republican Party
remains strongly pro-life at the national level.”

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* Fourteenth Amendment; Civil Rights Decisions; Danger from the
Right;
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