“We the people of the United States, in order to form a more perfect union, establish justice,…” These aspirational words from the Preamble to the Constitution have been invoked by many, though no better than by Martin Luther King, Jr. in his “I have a dream” speech in Washington, D.C., in 1963. As we celebrate his memory this week, I was fortunate to have just finished reading a book that gives a salient historical account of how treacherous and difficult the road to a better union has been for Americans and what it teaches us as we look forward.
Those words in the Preamble were not a rhetorical flourish. In fact, they were an acknowledgement that basic rights, like the right of slaves to freedom and citizenship and, of course, the political rights of women had been left out. Furthermore, language regarding a national definition of citizenship, the rights such citizenship confers and who is responsible to protect these rights was also absent or unclear in the constitution. It took three monumental amendments, the 13th, 14th and 15th, for these essential steps toward a more perfect union to gain constitutional status.
The importance of these amendments was such that Eric Foner (a professor emeritus of Columbia University and Pulitzer Prize winner) suggests they constituted a second founding of the American Republic. Hence, the title of his book The Second Founding: How the Civil War and Reconstruction Remade the Constitution. But as the book explains, elation and optimism very soon gave way to frustration and disappointment. Although slavery was effectively abolished, the rights of citizens, and most particularly those of color, granted in the 14th and 15th Amendments, were in later years undone across the Southern states.
The first of the three amendments, the 13th (ratified in 1865), formally abolished slavery in the United States, contrary to the widespread impression that this had been accomplished by the Emancipation Proclamation. The 14th Amendment (ratified in 1868) introduced birthright citizenship, brought citizenship under the protection of the US government, not that of the individual states, defined life, liberty, and property as the rights of all citizens, introduced due process of law, and granted equal protection of the laws to any person, not just citizens. Finally, the 15th Amendment (ratified in 1870) declared that the voting right of citizens “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” It would take another fifty years for sex to be added to these three accounts.
Passage of the three amendments was possible only due to the extraordinary powers of Reconstruction that, in addition to the vote of former slaves, shifted political dominance in Southern states from the pro-white supremacy Democratic Party (sounds strange, right?) to the Republicans who had championed the anti-slavery campaign. But the rights written in the amendments were seriously weakened once the Reconstruction project came to an end after the Democrats returned to state power in the latter part of the 19th century. That was the period the pro-white supremacy system of Jim Crow was established through out the South. Segregation, discrimination, and violence against blacks became routine in the Post-Reconstruction South.
The most serious offense against the letter and spirit of the amendments was the gradual denial of the vote to black people. Poll taxes, literacy tests, and convictions for an expanding array of petty crimes would become reasons to deny one’s right to vote. Ever creative in designing discriminatory laws, the Southern authorities would avoid the use of racial terms but introduce voting right criteria that were certain to disproportionately afflict and, hence, exclude black people from voting. (Similar methods were used to suppress the vote of the Catholic Irish and other minorities even in the north.)
Regrettably, as Foner remarks, the state discriminations that went against the intended purpose of the three amendments, found validation in a series of Supreme Court decisions. In crucial cases, the jurists argued that the amendments were not purported to tip the balance of power toward the federal government and away from the states. Thus, the states were left effectively free to decide what constituted or not bias and discrimination in actions taken by public and private parties. As Foner writes, in its pro-state opinions, “The Courts did not simply reflect popular sentiment – they helped to create it.” As one reads the outrageous and hateful comments launched against the fitness of people of color, and also against women, to partake of civil, political, and social rights, one wonders how low indeed the human mind and soul can sink. Apologists of white supremacy claimed that giving rights to people of color was tantamount to punishing white people by removing their special status, a spin still heard in some white circles today.
There are several lessons we can draw from the record of resistance against the liberating provisions of the three amendments. Passing laws, even constitutional amendments, is not sufficient to provide remedy for long-standing racial prejudices. The Post-Reconstruction history of the Supreme Court shows that our trust in the courts to protect basic rights can be betrayed. Opinions handed down at that time caused long-term harm to the equal enjoyment of rights. They were reversed to some extend almost a century later by court decisions, like Brown vs Board of Education (that ended segregation) and Congressional legislation, like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But even this latter Act was later weakened by the 2012 Supreme Court decision that ended the proactive enforcement role of the federal government in regards to protecting the voting right.
Citizen rights, especially the voting right, are, even today, unevenly protected across states. Thus, the accolade of having a great democracy is not equally deserved by all states. Finally, it is only through awareness of that history that today’s grievances and sensibilities of the black communities in issues, like profiling, incarceration, red-lining in housing, etc., can be understood in contemporary America.
In Foner’s words “A century and a half after the end of slavery, the project of equal citizenship remains unfinished.”
Let's Reason 
The history of, and politico-legal theories surrounding, the 14th Amendment are complex. This article does a good job at tersely explaining the sources of that complexity and the impact of certain Supreme Court decisions that, rather than offering a salutary and rigorous analysis of that complexity, retreat from recognizing the full, and potentially revolutionary impact of the equitable principles contained in that Amendment.
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