Fourteenth Amendment as a New Constitution
FOURTEENTH AMENDMENT AS A NEW CONSTITUTION
The fourteenth amendment transformed—reconstructed—the meaning of the Framers' Constitution. This transformation is most visible in the interpretations now given to the bill of rights. At the Founding, the first ten Amendments were primarily structural, emphasizing states ' rights and majoritarian popular sovereignty. These amendments applied only against federal officials (as the Supreme Court made clear in the 1833 case of barron v. city of baltimore), and were never described by the antebellum Court as the "Bill of Rights." The Fourteenth Amendment changed all that. The Amendment aimed to make the various rights and freedoms of the original bill applicable against state and local governments—what twentieth-century jurists call "incorporation" of the Bill of Rights. In the process, the amendment reshaped the meaning of these rights, giving Americans a new birth of freedom featuring national protection more than states' rights, and minority rights more than majority rule. Only after and because of this amendment does it make sense to call the original amendments a true "Bill of Rights" for individuals and minorities. In addition, the amendment affirmed the idea of national citizenship; highlighted the key value of equality (a word notably absent from the Framers' Constitution); sought to penalize denial of voting rights of black men; and tried to give Congress a broad substantive role in protecting liberty and equality.
The Founding Fathers forged their Constitution and early amendments in the afterglow of the american revolution. That revolution showcased populism and federalism—the people collectively had acted to throw off the yoke imposed on them by government officialdom, and democratic local regimes had banded together to help their citizens fight off an arrogant imperial center. Liberty held hands with localism—the rallying cry of "no taxation without representation" sounded in federalism as well as freedom, affirming the rights of local, representative legislatures even as it denied power to the central Parliament. Classical political theory also suggested that democracy thrived in small settings, and could not easily extend over a vast continent encompassing a large and diverse population. Thus, the patriots' initial scheme of government featured a loose-knit confederation of sovereign states with little effective central power. When these articles of confederation proved too weak to hold America together, the Federalists proposed a new Constitution that they claimed would vindicate the principles of the revolution. Beginning with the words "We the People," the Constitution in both word and deed stressed popular sovereignty: the words became law by ratification in popular conventions via a process that was more participatory than anything before in the planet's history (though still woefully underinclusive from a modern-day perspective). The document also showcased federalism, limiting power of the central government to enumerated domains, and retaining important roles for states as constituent parts of the new system.
But Anti-Federalist critics of the Constitution remained skeptical, and demanded additional safeguards in the form of a Bill of Rights. As originally crafted, this bill focused less on individualistic liberty, and more popular sovereignty and states' rights. No phrase appeared in more of the first ten amendments than the phrase "the people," echoing the preamble and emphasizing popular rule. At its core the first amendment right of "the people" to assemble affirmed the sovereign people's collective entitlement to assemble in constitutional conventions and other political conclaves, the second amendment right of "the people" to keep and bear arms stressed the collective authority of the citizenry to check a standing army that might seek to tyrannize, and the ninth amendment and tenth amendment served as a reminder of the rights retained and reserved to "the people." (The fourth amendment spoke of "the people" but counterbalanced this collective noun with two individualistic references to "persons." The key collective idea of this amendment was that juries of ordinary citizens, representing the people, would help keep abusive officials in check by holding these officials liable for unreasonable searches and seizures.) The original bill was equally emphatic about states' rights. For example, the First Amendment affirmed that Congress lacked all enumerated power to regulate the press or religion in the states—and the establishment clause prevented the federal government not only from establishing a national church but also from disestablishing state churches. Likewise, the Ninth and Tenth Amendments stressed the idea of the federal government's limited enumerated powers. Perhaps the central idea of the original bill was the idea of trial by jury, explicitly affirmed in the Fifth Amendment's guarantee of grand juries, the Sixth Amendment's protections of criminal petit juries, and the seventh amendment's embrace of civil juries, and implicitly affirmed in many other provisions. The Founding-era jury was a populist and provincial institution, empowering ordinary citizens against government professionals (judges and prosecutors), and localists against centralizers. The key idea of the jury was not simply the right to be tried, but the right to try—the right of the people themselves to take part in government administration.
This Revolutionary-era vision was revised in the aftermath of the civil war. The antebellum experience had proved that states could also threaten liberty, especially when slavery dominated politics. Slave states had become increasingly oppressive in their efforts to prop up a legal regime of human bondage—stifling abolitionist freedom of speech, suppressing antislavery preachers, invading the right of privacy, and violating virtually every right and freedom that Americans held dear. A new Bill of Rights was needed to affirm national rights against states, and individual rights against overweening local majoritarianism. Congressman john a. bingham drafted Section I of the Fourteenth Amendment to make clear that henceforth no state should be allowed to abridge fundamental privileges and immunities of Americans, such as freedom of speech, religious liberty, and the rest of the rights and freedoms mentioned in the original Bill of Rights. Although the Supreme Court disregarded this original intent for many years, twentieth-century Justices eventually came around to Bingham's view, using the amendment's due process clause rather than, as Bingham would have had it, its privileges or immunities clause (which the Court effectively buried in the 1873 slaughterhouse cases). Today, virtually all the provisions of the first eight amendments apply against state and local governments, except for rules regarding guns, grand juries, and civil juries.
In the process of incorporating the bill against the states, modern judges have also—and quite properly, given the spirit of reconstruction—reshaped the meaning of various rights. Whereas Founding-era liberty emphasized majority rule and popular sovereignty, the Reconstruction generation cared more about the individual and minority groups, such as the unpopular speaker (like Frederick Douglass or Harriet Beecher Stowe down South) and the religious outsider (like many of the abolitionists). States' rights were less central to Reconstructors, and so the Tenth Amendment properly plays a smaller role today than it did at the Founding. The local institution of the jury—which was central after a revolution born in localism—seems somewhat less central today in the wake of the more nationalistic Civil War amendments. Another example—which goes beyond current doctrine but illustrates the general theme of this transformation—comes from the Second Amendment. The Founding generation intended to affirm the rights of local militias to resist an imperial army, in the spirit of Lexington and Concord and Bunker Hill. The Reconstruction generation had a different view, understandably less hostile to a central army and less enamored of local militias. Reconstructors believed in a different individualistic right to firearms: blacks must be entitled to keep guns in their homes to ward off Klansmen and other ruffians. In short, modern views about the Bill of Rights owe a great deal to the Reconstruction vision of nationalist, individualistic liberty—even though conventional wisdom often reads these themes (anachronistically) back into the Founding.
Beyond its transformation of the Bill of Rights, the Fourteenth Amendment aimed to reconstruct the Framers' Constitution in several other key ways—not all of which have proved successful. The amendment's first sentence established a national definition of citizenship and affirmed the centrality of national birthright citizenship. Section 1 went on to affirm the civil equality of all persons via an equal protection clause that has come to play an enormous role in the twentieth century on behalf of racial minorities and women. Whereas the Framers had rewarded slavery—for every new slave born or imported, a slave state would gain clout in the U.S. house of representatives and electoral college—section 2 of the Fourteenth Amendment sought to penalize states that disenfranchised blacks by reducing their congressional representation. (This section inserted the word "male" into the Constitution for the first time, outraging many suffragists such as susan b. anthony and elizabeth cady stanton. Other suffragists at the time supported the amendment, noting that its first section protected all citizens and persons, male and female alike). Sections 3 and 4 sought to reduce the political and economic clout of slave owners and leading Confederates; and section 5 aimed to give broad power to Congress to implement the amendment's vision. Early Congresses tried to use this power to help blacks in the South, but the late-nineteenth-century Court stepped in to limit congressional Reconstruction. More recently, in the 1997 City of Boerne v. Flores case, the Court declared that Congress has a more limited role under section 5—a result that is hard to defend on grounds of text and original intent, and that is in sharp tension with thirteenth amendment case law.
Akhil Reed Amar
Curtis, Michael Kent 1986 No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press.
Meyer, Howard N. 1973 The Amendment That Refused to Die. Radnor, Penn.: Chilton Book Co.