“Reimagining the Constitution” on the 150th Anniversary of the 14th Amendment

Even though it’s the longest amendment to the U.S. Constitution, the 14th Amendment fits neatly onto a single sheet of paper. Yet as Linsly-Chittenden Hall welcomed a 150th Anniversary discussion of this important part of the Constitution, I increasingly grew in awe of how much of today’s legal and political thinking can be traced back to that one page I received at the door, first passed by Congress in 1866.

The all-star panel, hosted by Yale’s Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition, brought together constitutional and reconstruction historians from several different universities. Each emphasized a different aspect of the text’s language and history, yet they all agreed on one thing: many of the dilemmas we grapple with today, be it state’s rights or race, “pass through” the 14th Amendment and its resulting “reimagining of the Constitution,” to quote David W. Blight, Class of 1954 Professor of American History and the discussion’s moderator.

The panelists emphasized again and again just how much history intertwines with the Constitution. Often bundled together with the 13th and 15th Amendments as the “Reconstruction Amendments,” the 14th Amendment came on the heels of the Civil War and played an important role in establishing the Republican Party’s vision for Reconstruction while expanding federal powers to reign in misbehaving states. According to John Witt, a professor at Yale Law School, the Amendment was the end of one story and the beginning of another, offering the federal government a new means to prescribe justice throughout the country like it had enforced emancipation using executive war powers just a few years earlier.

Since then, the 14th Amendment has been the legal cornerstone for efforts to “federalize” and expand not only the Bill of Rights but also other fundamental rights found in the American legal tradition. Notable cases such as Miranda v. Arizona, Roe v. Wade, and even Obergefell v. Hodges (which extended the right to marry to same-sex couples last summer) all drew on the 14th Amendment and its “due process” and “equal protection” clauses.

Fascinatingly, many of the panels speakers made the case that the 14th Amendment not only cemented the death of slavery but also heralded the rise of human rights as we understand them today. Professor Amy Stanley of the University of Chicago made the claim that by giving rise to a “new conception of personhood by the virtue of simply being human,” the 14th Amendment “transformed understanding of humanity itself.” Although the Civil Rights Act of 1875 was eventually struck down, its proponents defended equal rights to “amusement” in theaters and other public venues using the language of the 14th Amendment and its new human rights vision. And in the second sentence of Section 1, “person” replaces “citizen,” which seemed to me like such a small slip but effectively extends the Amendment’s reach to people who do fit naturalized citizenship yet are nonetheless entitled to life, liberty, and property.

Ever since the Amendment’s ratification in 1868, a constellation of opponents have sought to restrict its effectiveness, especially when it comes to the federal government’s supremacy over state interests. Professor Tomiko Brown-Nagin of Harvard Law School described post-Reconstruction history as a “cycle of intervention followed by neglect – and even hostility – of the Reconstruction Amendments” that has prevented it from becoming the instrument of human equality that its writers likely intended to create. Nevertheless, the Second Reconstruction of the 1960s that saw a renewed interest in applying 14th Amendment protections in civil rights cases, a do-over fueled by social movements and the clear voices of Martin Luther King and other leaders. According to Brown-Nagin, the Reconstruction “lives on and gains new life” through the 14th Amendment as an ongoing project that has lasted for over 150 years.

The conversation eventually arrived at the significance of the 14th Amendment today and the role that the Constitution must play in modern-day politics. Witt argued that we should “not think of the Constitution as a text but rather as a collection of social mobilizations.” Most of the panelists agreed, citing America’s unwritten constitution (also the title of one of Akhil Amar’s books) and how it has changed throughout history to respond to new challenges and contexts, which many people fail to recognize. “Reclaiming the 14th Amendment begins with reclaiming the whole document and its history,” urged Amar. “This,” he said as he brandished the pocket Constitution that he carries wherever he goes, “is a rallying point for mobilization” – for gay rights, for voting rights, and for the unforeseen legal and social questions that future generations of Americans will have to decide.

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