This month marks the 150th anniversary of the ratification of the most consequential provision of the U.S. Constitution, the 14th Amendment. It grants citizenship to anyone born in America and assures that state governments afford due process and equal protection of the laws.
Rep. John Bingham, the enactment’s principal author, explained he sought “a simple, strong, plain declaration that equal laws and exact justice shall be secured within every state for any person, no matter whence he comes, or how poor, how weak, how simple, how friendless.” The 14th Amendment, along with its civil war counterparts, sought to remedy the tragic defects of 1789 and bring egalitarian democracy to the United States.
Of course Bingham’s words have been much-ignored in our constitutional history. The 14th Amendment was largely gutted in its first 50 years – except as a tool for corporate interests. And Plessy v. Ferguson cruelly buried its central meaning.
But since 1954, the Supreme Court has frequently used the 14th Amendment to demand that American government make real its foundational promises. Brown v. Board of Education (school segregation), Loving v. Virginia (anti-miscegenation laws), Craig v. Boren (sex discrimination), Harper v. Virginia (voting rights), Goldberg v. Kelly (right to hearing), Roe v. Wade (reproductive rights), Graham v. Richardson (immigrant rights), Obergefell v. Hodges (gay rights) and Reynolds v. Sims (equal representation) are its principal markers. Without them, the U.S. would be a tyrannous nation. Anything but the land of the free. So it’s good to raise a glass to the old, but essential and defining, provision.
Still, the timing of sesquicentennial is modestly uncomfortable.
Donald Trump, consistent with his predilections, has promised to repeal central components of the 14th Amendment “in his second term.” Meantime, Trump’s new nominee, Brett Kavanaugh, stands ready to join four of his more senior colleagues in burying about a third of the cases listed above. It’s now anyone’s guess what will be left to celebrate on the 175th anniversary.
And, unless I’ve missed them, there haven’t been fulsome and exuberant celebrations of the Amendment’s birthday launched or mandated by the N.C. General Assembly. I suppose the quiescence is understandable. The 14th Amendment may have been drafted and muscled into ratification by Republicans in 1868, but our Republicans today don’t actually seem to like it. There’s no Thadddeus Stevens, John Bingham or Charles Sumner among our lot.
I sometimes try to think of ways to encapsulate the defining and pervasive political war that consumes and threatens North Carolina these days. There are a lot of potential candidates. The New York Times refers to the crusade of the last eight years as our “pioneering work in bigotry.” I’d be hard pressed to disagree with that.
But it’s also accurate to characterize the struggle as a continuing, never-yielding fight over Bingham’s 14th Amendment. The Tar Heel State initially voted against the amendment in 1866, for example, before eventually yielding to the pressures of the Reconstruction Congress. And the aggressive social and political agenda of today’s North Carolina Republican Party is impossible to square with the due process and equal protection mandates of the last half-century.
Our General Assembly has repeatedly moved, in every manner it could covertly construct, to restrict the political participation of black Tar Heels. It has boasted of its efforts to quash political electoral equity. The federal courts have found that their actions “disrespect, stigmatize and subordinate” lesbians and gay men. And their anti-abortion handiwork had nothing to do with a woman’s health and everything to do with unconstitutional coercion. When the federal government sued over HB2, it noted “not long ago North Carolina had signs above restrooms keeping people out without a difference.”
Republican legislators passed a statute giving public officers a free hand to discriminate against gays. They moved to further racially segregate our schools. They continued the Democratic tradition of turning away undocumented dreamers from our universities. And they launched the nation’s boldest crusade against poor people. If John Bingham were alive today, they’d drum him out of the party.
As Faulkner put it: “The past is never dead. It’s not even past.”
Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.