Why We Abandoned the 14th Amendment

In 1868 the American people ratified the 14th Amendment to the Constitution, which, if you read its text, gave every citizen a broad set of protected constitutional rights and provided every American with a strong guarantee of equality. By 1896 the Amendment was more or less a dead letter, not even prohibiting de jure racial segregation. It had already been robbed of the vast majority of its force long before then, though. In 1883 that broad set of protected rights was held to be essentially trivial in scope. And all the way back in 1873 the Amendment was held not to give Congress the power to directly regulate racial discrimination by private individuals. This is, well, weird. In one sense it's not particularly strange: after all, the America of 1896 or 1873 was in no way ready for true racial equality, or the other kinds of equality the Amendment has since been held to guarantee. But... neither was 1868 America, right? So why did it enact the damn thing in the first place? You'd almost think that something changed between 1868 and 1873. Something big, something that would seriously change our expectations about the American polity's attitudes toward a federal guarantee of individual rights and civil equality.

And you would be right. Something big did happen: we let the South back in. Eleven states joined the Confederacy during the Civil War. Precisely zero Senators or Representatives from those eleven states cast votes on the Fourteenth Amendment, yea or nay. Now, the Southern states did ratify the Amendment, but they were forced to by the all-northern Congress. People have argued that this undermines the legitimacy of the 14th Amendment. I'm not interested in that question here; the point is simply that the Fourteenth Amendment was the product of an entirely northern politics. It was also one of the last things that all-northern politics would ever get to do.

By 1873, every Southern state was back in the Union. In the 1870 census, those states made up almost exactly one quarter of the total population, and a very slightly higher percentage of electoral votes. Their addition meant that the political center of 1873 would have been around the 67th percentile of conservativeness in the 1868 all-northern political culture (assuming the entire South was to the right of that position, which feels safe, on racial issues at least). Or to put it another way, it is entirely possible that there was a genuine strong majority favoring the kind of equality the Fourteenth Amendment seems to establish and that by as early as 1873 that the American people did not want that kind of radical change. Because "the American people" changed in the interim. A political coalition favoring the Fourteenth Amendment's broad principles could easily find itself victorious in 1868 but on shaky footing at best as soon as five years later, hesitant to enforce its own creation for fear of political liability.

In a sense, then, the question is which expression of the will of the people we should treat as dominant, as legitimate. Obviously the normatively correct answer is the 1868 version. That's also why I don't really care about whether the 14th Amendment is formally illegitimate because it was enacted through coercion: as between the cause of racial (and more general) equality and the strictures of the Article V ratification process, I'll take the former every time. Without the Reconstruction Amendments, the U.S. Constitution as a whole would be illegitimate. You could try to argue, though, that we can't treat the text of the Fourteenth Amendment as a true expression of the will of the American people, that the Slaughter-House Cases, Civil Rights Cases, and Plessy v. Ferguson should essentially be retroactively read as the original intent of that Amendment because they represent the attitudes of the country as a whole.

Of course, that entire line of inquiry would depend on giving a damn about the original intent of the American people of 1868. Fortunately, what matters is not what they wanted or thought but what they did, and (except insofar as the 14th Amendment is invalid, which I don't think it is for various reasons) what they did was to guarantee to all the equal protection of the laws, and to protect the privileges and immunities of citizens of the United States. Nice and simple. But if we're puzzled by the fact that We, the People seemed to disavow our own act beginning just half a decade after we made it in the first place, we shouldn't be. We were just a different People.