• Peter Templeton

The Fourteenth Amendment to the Constitution

On this day in 1868, the 14th Amendment to the Constitution was ratified. In theory, this gave full Citizenship to African Americans in the United States. Today, we take a look at the 14th Amendment in a little more detail.

We almost take it for granted today that the US is a democracy, in which everyone is entitled to a share in how they are governed. We take this as a given, whether they get that share in practice or not. But it was not always thus, and it’s easy to miss how the idea of American democracy was by means guaranteed even after they had fought a revolution. Conservatives, mostly associated with the Federalist Party, were against such a future for their country even after it became clear that Jefferson’s Democratic-Republicans would carry the day. As late as the 1820s, though, those on the right of American politics would argue the purpose of society was not just to protect life, but also to protect property. As a result – so the argument went – those with more capital had more stake in the continuance of society and therefore deserved more say in how it was run.

The reason we associate the US with liberty and equality today is that these arguments were defeated by people who believed holding significant wealth would always come with influence. That political weight meant, in practice, that those people would necessarily be protected. But nevertheless, this early interest in property – and the fact that so much of the American system descends from English Whig ideals, raises an interesting question. What does that do to people who – in parts of the country, at least – were legally considered property themselves?

In truth, it gave rise to a whole spectrum of opinions on the anti-slavery side. There were some, like those in the Liberty Party, who spoke of a universal fraternity with the African American. Others continued to see the world in terms of white supremacy, but who still recognised African Americans were entitled to equal protection under the law whatever their political rights. That group would include Abraham Lincoln, who once said that a black woman has ‘the natural right to eat the bread she earns with her own hands without asking leave of anyone else.’

On the other hand, the defenders of slavery were united in their view that citizenship, and the rights implied by Citizenship, did not extend to African Americans. It was a white man’s country, and those ideals applied only to white men – as far as they were concerned, African Americans existed outside the body politic. This is a view that was less strongly expressed early in the century. Still, as support for slavery solidified across the nineteenth century, it became a more orthodox position. The question was not especially specific, then, but was more rhetorical in nature, more political than genuinely legal. A great deal depended on who you happened to be talking with at the time, and in what context.

The fact remains that in parts of the country, African Americans had rights. In contrast, they did not hold those rights in others, and the situation was becoming increasingly intolerable. Plenty of legal decisions around this issue came before the courts, such as Strader vs Graham (1851). Still, the most consequential was Scott vs Sandford. The Dred Scott decision did so much to send the US towards Civil War. Rather than stick to precedent, in that case, Chief Justice Roger Taney issued a far-reaching ruling.

Three questions really rested before the Court. Was Dred Scott, a citizen who could have his case heard by the Supreme Court? Had he lived long enough in a free state to be considered free himself? And was where he was living in Minnesota actually free land, to begin with? Taney actually spent very little time arguing what some might consider the most pertinent question of the case, the second, which related most closely to Scott. Instead, Taney said that congress had no right to limit the extension of slavery and that only the individual states could do that. More to the point, the ruling of the pro-Southern Court was that African Americans were not citizens of the United States. Many of the founding fathers had been slaveholders and, for Taney, it was impossible that they should have thought of their own property as one day holding the same rights that they held themselves. His most memorable statement in the judgement was that before being brought to America, their condition was so degraded that they had no rights a white man was bound to respect.

Taney’s decision was an attempt to put the issue to bed, but by overreaching, it made matters a whole lot worse. Of course, one can never think of the Supreme Court as apolitical, but the decision was legally spurious. The Court itself suffered for the decision, especially amongst Republicans who practically took up the published dissents as their official position. It even led to one Northern justice, Benjamin Robbins Curtis, resigning from the Court. The Republican Party also benefit massively from the widening sectional divide in the Democratic Party. The Northern wing of the latter was none too enamoured with the decision, either.

For the next few years, we already know the story: the divide between North and South continued to worsen, a series of Democratic presidents were unable or unwilling to bridge the gap, and eventually the South seceded, beginning the Civil War. The Confederacy was an explicitly racial state, one that had slavery protected within its Constitution to avoid any of legal dilemma of the previous eighty years. By 1865, though, what was in the Southern Constitution didn’t matter in the slightest. It was clear that the Union was going to win the war.

That left the question of what to do with African Americans. On the one hand, with the South coming back into the Union, the political forces that had bound them in servitude would be returning to the fold. They were likely to assert the same States’ rights arguments that had been prevalent before the war, hoping to be left to manage the question in their own way. On the other hand, many black Americans had fought for the Union cause. It was now unthinkable to many that, having fought for their freedom, they could be denied it after victory had been won.

In fact, the more Southerners tried to ignore the reality of emancipation, the more radical congress (and popular opinion in the North) became. The passing of ‘black codes’ in sections of the South prompted a more far-reaching response. Even so, we should not understate the enormity of what they were attempting, and the difficulty of it. This is nothing less than a reorganisation of society that redistributes power away from the Southern aristocracy – and they needed to find a way for Southerners to ratify that.

The Amendment emerged primarily out of the Civil Rights Act of 1865. That law had, for the first time, really defined American Citizenship and stipulated that this Citizenship could be protected regardless of race, colour, or any time spent as a slave in the past. In doing so, this also effectively struck down several ‘black codes’ that had been passed in Southern states. It did not pass without turmoil – Andrew Johnson, Lincoln’s Vice-President who had assumed the Presidency on his predecessor’s assassination, attempted to veto the bill, but it was passed over his head.

Republican members of the thirty-ninth congress were, however, skittish. They knew as well as anyone that political victories could be fleeting, and there was some doubt whether or not they had the ability to enshrine this in law. Had they overreached themselves? The solution was to look to a constitutional amendment, protecting these gains in the document central to the American political system.

Rep. Thaddeus Stevens

A compromise was necessary to achieve this, and inevitably it is a flawed law. Thaddeus Stevens, leader of the Radical faction of the Republicans, said: “I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism.” However, it’s worth noting that even this compromise took more than two years for it to be ratified by the states. Having been sent out in June, only six states had ratified it by the end of 1866. The refusal of the former Confederate States to do so led to the Reconstruction Acts. Congressional representation was now contingent on ratifying the fourteenth Amendment. Finally, in July of 1868, three states that had initially refused reversed course and endorsed the Amendment. North Carolina agreed on the 4th of July, and then on the 9th, they were joined by both South Carolina and Louisiana.

The fourteenth Amendment did away with Taney’s decision in the Dred Scott case. It established the Civil Rights Act’s wide-reaching definition of Citizenship as the constitutional basis of American Citizenship. That is not to say that racial issues went away. One could point to George Wallace intoning that there would be ‘segregation today, segregation tomorrow, segregation forever’, but it’s as easy to pull examples from the present day as it is from the turbulent 1960s. Nevertheless, whatever its flaws, the fourteenth Amendment to the Constitution is a hugely significant moment in American history – if only as the moment that American Citizenship was no longer a question of race.

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