The 14th Amendment Turns 150: Scrutinizing Equal Protection

by Alejandra Padín-Dujon

On the 31st of March, a who’s who of America’s foremost Constitutional scholars and Reconstruction historians gathered in Linsly-Chittenden Hall for a panel discussion entitled “Equal Protection: Origins and Legacies of the Fourteenth Amendment.”

Drafted in 1866 by the Radical Republican contingency of a U.S. Congress still operating without the eleven Confederate states, this amendment establishes the principle of birthright citizenship, guarantees equal protection of the law to all persons, creates a basis for ongoing federal power, and extends the protections of the federal Bill of Rights to every state through a process called incorporation.

The all-star panel, which included professors Akhil Reed Amar (Yale Law), Tomiko Brown-Nagin (Harvard Law), Eric Foner (Columbia University), Amy Dru Stanley (University of Chicago), John Fabian Witt (Yale Law), and David W. Blight (moderator, Yale University), criticized the Supreme Court’s record of conservative Fourteenth Amendment rulings, contextualized the amendment’s passage, and expounded upon the document’s implications for modern debates on citizenship, mass incarceration, the 1965 Voting Rights Act, and the meaning of free personhood.

“As a historian, I have no interest in what eight or nine uneducated people have to say about the Fourteenth Amendment,” declared Professor Foner, whose laundry list of accolades includes a Pulitzer Prize in History for his book The Fiery Trial: Abraham Lincoln and American Slavery. “The Supreme Court has consistently chosen the most conservative interpretation of the Fourteenth Amendment on the subject of race.”

Foner’s scorn was echoed by Professor Brown-Nagin, who noted that the SCOTUS is “deeply involved in the restriction of the Reconstruction Amendments.” In addition to the Fourteenth Amendment, these include the Thirteenth (abolishing slavery) and the Fifteenth (granting equal voting rights). The 1964 Civil Rights Act was effectively a “do-over” of the 1875 Civil Rights Act, which the Court struck down on the basis of federal government overreach. In 2013, the SCOTUS invalidated key portions of the 1965 Voting Rights Act as part of its ruling in Shelby County v. Holder.

In many cases, exigent circumstances and historical context that birthed the Fourteenth Amendment have made it too progressive for the tastes of subsequent lawmakers. The document deliberately alternates between referring to the American “citizen” and “any person” in order to negate the effects of the 1857 case Dred Scott v. Sandford, which alleged that Black Americans are not citizens, and that only citizens have Constitutional rights. Now, many Constitutional protections apply even to those without citizenship status.

Other provisions in the Fourteenth Amendment have only become thornier with the passage of time. Section 2 permits states to disenfranchise rebels and criminals, thereby denying voting rights to large contingencies of the American population in an era of racialized mass incarceration.

The panelists ultimately suggested that the solution to reconciling modern social issues with nineteenth century Reconstruction rhetoric lies in recovering and popularizing accurate historical knowledge in our legal system. Do we actually need a new Voting Rights Act?

“No,” snapped Professor Foner. “We need a new Supreme Court!”