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Sunday, May 20, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Amendment That Refused to Die: Equality and Justice Deferred, the History of the Fourteenth Amendment

The author makes a persuasive case that the original constitution was a failure. A mere seventy-three years after its ratification, the country stood on the brink of civil war, certainly not a more “perfect union.” “Establish Justice?” Hardly, with more than a sixth of the population being held in bondage and “domestic tranquility” on the brink of being shattered.

He suggests that the United States has experienced three revolutions: the first leaving Britain; the second, the Civil War; and the third, in the twentieth century as the 14th Amendment was seen as being applied to the states. It’s important to remember that the original Bill of Rights, the first ten amendments, applied only to federal government actions and states were free to deny or misapply those fundamental rights subject to no recourse except by state courts. 

Meyer’s technique is to show through a series of vignettes how the basic rights guaranteed under the federal constitution were not upheld at the state level. For example, in the case of Roberts v Boston, Benjamin Roberts wanted his daughter, Sarah, to attend the school closest to her residence as per the local school policy. Because she was black, however, this was not to be, so they enlisted the aid of Charles Sumner, a young lawyer who had already acquired the reputation as a radical, someone who was willing to take on unpopular causes, as he had in fighting against the Mexican War. The Massachusetts Bill of Rights proclaimed that all men born free and equal” under the law. Sumner thought it was time to hold them to their proclamations. In a premonition of Plessy v Ferguson half a century later, the opposition argued that the school Sarah could attend was indeed separate, but it was also “equal.” Sumner argued it wasn’t just blacks who were injured, but whites as well: “With the law as their monitor they are taught to regard a portion of the human family, children of God, created in his image, as a separate and degraded class....” Sarah lost her case, but Sumner’s appeal was printed and distributed as a pamphlet which so inflamed public opinion that five years later, the Massachusetts's legislature overrode the local school officials and made segregated schools illegal, paving the way for a national effort one hundred years later based on an amendment that Sumner was to support just a few years later.

Wars have done more for raising civil rights* than perhaps anything else. By 1864, the National Negro Convention was asking a question that would be hard to answer for many Americans: “Are we good enough to use bullets and not good enough to use ballots.” Northern states were little better than southern when it came to suffrage for blacks, but it was the large number of black soldiers who had fought well for the union that was beginning to change minds. Granting voting rights to blacks was critical politically because with the 3/5ths rule, the southern states were represented, assuming a population of one million blacks and one million whites, as if they had a population of 1.6 million. Without black suffrage after the war and with the elimination of the 3/5ths rule under the 13th amendment, now southern states would have a representation as if they had two million which would give them more voting power in Congress, unless blacks were given the vote.

The initial Civil Rights bill failed to override Andrew Johnson’s veto, so the solution was the 13th amendment to abolish slavery, but many were concerned that federal legislative power would be inadequate to enforce rights for blacks in the southern states after the war so the solution was the 14th amendment which applied the Bill of Rights was to provide protections to all persons within all the states.

Misapplication of the Bill of Rights caused a delay in full application to the states until the mid-20th century as conservative courts interpreted “equal rights” to mean that separate was OK, too. Some would argue they weren’t fully applied even until 2009 with McDonald v Chicago, but that’s another story.

Clearly the 14th amendment laid the groundwork for a truly national and person-wide implementation of important individual rights and thus deserves a special place in the pantheon of American history. Meyer explains the evolution of selective application through a series of short vignettes, including the Slaughterhouse Cases** (a setback for full application and requiring thirty years at least to overcome some of its damage), Plessy and many other fascinating cases that also illustrate the difference between using the immunities and privileges clause (fundamental rights of citizens) as opposed to using the due process clause of the 14th amendment. 

Ultimately, the 14th amendment gave the national government the power to “protect all its citizens within the states.” (Rep. John Broomall of Pennsylvania, 1866.) For their actions, subsequent generations of Americans owe a debt of gratitude to those who labored for the amendment. Excellent primer on the history and implementation of the 14th amendment.

*I’m thinking here of the confluence of Vietnam and the Civil Rights movement of the sixties as well as the push for more rights after WW I and II.

**In a five-four decision issued on April 14, 1873, by Justice Samuel Freeman Miller, the Court held to a narrow interpretation of the amendment and ruled that it did not restrict the police powers of the state. The Court held that the Fourteenth Amendment's Privileges or Immunities clause affected only rights of United States citizenship and not state citizenship(Wikipedia)

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