Constitutionally Incorrect

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POLITICS MARCH 27, 2008

Constitutionally Incorrect

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The American conversation right now suffers from an odd pathology--our tendency to leave the fundamental changes to our Constitution made after the Civil War out of discussions of our nation’s most important document. At the Supreme Court last week, the justices endlessly debated what the Second Amendment meant in 1789. But, as Charles Lane wrote recently, the 14th Amendment, which was not even mentioned by the justices, is the essential bridge between the 2nd Amendment's militias and the modern day invocation of the right to self-defense that was at the heart of the case before the Supreme Court. The same day, in his majestic speech on race, Barack Obama left the Reconstruction Amendments out of his recitation of the history of race and the Constitution.

Speaking at the Constitution Center in Philadelphia, Obama told a familiar story of how “statesmen and patriots” met in that city in 1787, and, though they compromised on slavery, created a document that “embedded ... at its very core the ideal of equal citizenship under the law.” These “words on a parchment,” Obama explained, “would not be enough to deliver slaves from bondage, or provide men and women of every color and creed their full rights and obligations as citizens of the United States. What would be needed were Americans in successive generations who were willing to do their part--through protests and struggle, on the streets and in the courts, through a civil war and civil disobedience and always at great risk--to narrow that gap between the promise of our ideals and the reality of their time.”

This is a standard and inspiring tale, taught at law schools around the country, but it suffers from a slight problem. It isn’t true. In fact, the “words on a parchment” in the 1787 Constitution embedded slavery far more securely than equality. It took the 14th Amendment, passed after the Civil War, to put “equal citizenship” at our Constitution’s core. As Yale Law School’s Akhil Amar wrote in America’s Constitution, “it would be nice to think that the Founding Fathers designed a document whose arc would inexorably bend towards freedom and equality. Alas, the facts do not bear out this comfortable thought.”

Great as it was in many ways, our 1787 Constitution produced over 70 years of sectional conflict that was ultimately resolved in one of history’s bloodiest wars. That Civil War, and the Union victory in that war, is what paved the way for the Constitution we celebrate today. With the 13th Amendment, a document that bent toward slavery became stridently anti-slavery. The 14th Amendment guaranteed equal citizenship, civil rights, and due process for all Americans and gave Congress vast new power to enforce these mandates. The 15th Amendment and subsequent measures extending the franchise to women and young Americans made the right to vote a fundamental constitutional value.

It’s easy to understand why Obama would emphasize our 1787 founders to the exclusion of the Reconstruction Republicans who drafted and fought for passage of the 13th, 14th, and 15th Amendments. The statesmen and patriots of Obama’s story--Washington, Jefferson, Hamilton, Adams--are famous and beloved across the American political landscape, with the seven-part miniseries HBO is currently running on Adams just the latest example. Not one lawyer in 100 can identify Ohio congressman John Bingham as the main drafter of the 14th Amendment. Yet Bingham is a fascinating historical figure: he served in Congress in the 1850s as the country was torn apart and in the 1860s as it was stitched back together. He was a federal judge and the nation’s minister to Japan. As a prosecutor, he convicted John Wilkes Booth’s co-conspirators, and as a member of Congress he gave closing arguments in President Andrew Johnson impeachment trial. All that, plus he drafted Section 1 of the 14th Amendment, which is perhaps the single most important paragraph of our Constitution.

Bingham and other Reconstruction-era founders are not just obscure, they are buried under bad history. The Reconstruction failed politically and legally as well, as the Supreme Court failed to faithfully enforce the Amendment’s words in cases such as United States v. Cruikshank (1875), the Slaughter-House Cases (1873), the ironically-named Civil Rights Cases (1883), and, of course, Plessy v. Ferguson (1896), which found “separate but equal” segregation to be constitutional. For nearly the next 100 years, Jim Crow historians deemed the Reconstruction Republicans drunk, incompetent, and radical. These founders are clearly not the type of folks you want to wrap yourself around in a speech designed to bridge America’s racial divide.

Yet bringing our nation’s Second Founding--as the Reconstruction amendments are appropriately called--back into our constitutional conversation should be a central focus of Obama’s if he becomes president. The framers who wrote slavery out of the Constitution, instead of writing it in, and who crafted many of our Constitution’s most inspiring and underappreciated words, have been buried for far too long.

This is not an academic exercise. Much of the rancor over the Supreme Court centers around the meaning and import of these amendments. Conservative “originalists” such as Clarence Thomas and Antonin Scalia treat these Amendments as if they merely tinkered around the constitutional edges, with the document remaining mainly about property rights, states’ rights, and limiting the power of the federal government. To give just one example, in a critical 2000 case called United States v. Morrison, the Court’s conservatives cited favorably both the Civil Rights Cases and Cruikshank in limiting the federal Violence Against Women Act.

President Obama’s nominees to the Supreme Court will have to fight Scalia and Thomas on these issues. It would help these justices immeasurably if a groundwork of public understanding was laid for this battle. The 150th anniversary of the 13th Amendment will take place in 2015, near the end of what would be a second Obama term in office, followed in quick succession by similar events marking the passage of the 14th and 15th. These events provide a perfect opportunity for a President Obama to lead a celebration of our Constitution’s Second Founding.

If he does this job well, maybe 15 years from now we’ll all be watching a HBO miniseries simply called “Bingham.”Doug Kendall is the founder and executive director of Community Rights Counsel, a public interest law firm that promotes constitutional principles.

By Doug Kendall

The New Republic

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