First as Farce, Then as Tragedy

Donald Trump’s unconstitutional threat to decree an end to the Fourteenth Amendment’s guarantee of national birthright citizenship has brought renewed attention to the original intent of the Republican Congressmen who framed the amendment — to mandate national citizenship for all Americans — and the Supreme Court’s subsequent extensions of that guarantee to other groups. But, though largely forgotten in the recent commentary, there is another side to Republicans’ betrayal of their founding antislavery ideology: the systematic evisceration and misconstruction of the Fourteenth Amendment.

By guaranteeing equal protection before the law to all persons, the Fourteenth Amendment expanded the boundaries of American democracy considerably. The most frequently adjudicated constitutional amendment, it is the source for decisions ranging from the right to privacy, contraception, and reproductive freedom (Roe v. Wade, 1973), to the constitutionality of same-sex marriages (Obergefell v. Hodges, 2015), in our own times.

The authors of the Fourteenth Amendment in the Republican-dominated thirty-ninth Congress deliberately framed their language in broad terms so that the amendment could act as a radical democratic measure that would continue to bequeath and expand civil and political rights for all persons. Perhaps nothing illustrates the “living constitution” idea better than the amendment’s expansive, democratic language. As Representative George W. Julian of Indiana, a Radical Republican, put it, it was to create “a living democracy amid the ruins of the past.”

At times, the Fourteenth Amendment has lived up to that promise, and that is why conservative politicians and jurists have sought to contain its reach or put limits on its broad yet clear language on equal protection before the law for all persons, national citizenship, and punitive measures — loss of Congressional representation — for those states that would deny their citizens the franchise. (The latter provision has never been triggered, even when the Jim Crow South brazenly suppressed the right to vote of its black citizens and, in the southwest, citizens of Mexican descent.)

The tenuous and contested nature of black citizenship and voting was of course evident in the way southern states flouted the Fourteenth and Fifteenth amendments and got around the Thirteenth by racial terror and discriminatory legal mechanisms after the fall of Reconstruction. But with the fall and gradual unwinding of Reconstruction in the late nineteenth century, the Supreme Court and the Republican Party also sought to deliberately contain the revolutionary, democratic promise of the Fourteenth Amendment and completely change its meaning. ...