The erosion of the Civil War consensus

We once thought the Civil War settled fundamental issues about the primacy of federal law. Then came the Tea Party

Published March 20, 2011 3:01PM (EDT)

As someone who has studied the Civil War for all of my adult life, I never once contemplated that I would ever hear any American raise once more the issue of secession or the doctrine of nullification, or suggest that the 14th Amendment should be rescinded.

But we live in politically daffy times, so I suppose I should no longer be surprised by anything that self-serving politicians dish up for the 24/7 news cycle. Over the past six months or so, extremists on the right have revived the dubious tactics of states possibly leaving the Union (courtesy of Texas Gov. Rick Perry), states nullifying a federal law (Idaho's House passed such a bill on Feb. 16 to nullify the federal Patient Protection and Affordable Care Act, disparagingly called "ObamaCare" by the right), and rescinding -- presumably by a constitutional amendment -- the 14th Amendment (Senate GOP leader Mitch McConnell of Kentucky vowed last summer to hold hearings on the 14th Amendment, supposedly with an eye to rescinding all or part of it).

There once was a time, however, when historians decisively declared that, for all the things that the Civil War left unfinished, there were several outcomes that were fixed and sure: The war, and all the blood spilled in it, had ended forever the threat of secession, had ensured the supremacy of federal law over state law (thus eliminating the threat of nullification), and had defined and extended citizenship (by means of the 14th Amendment, ratified in 1868) to all native-born Americans, including the black slaves who had been freed not only by the Emancipation Proclamation of 1863, but permanently by the 13th Amendment to the Constitution, ratified in December 1865.

Ironically, as we enter the sesquicentennial commemoration of the Civil War, those simple accepted truths of the war's positive legacy now seem more fragile than they have ever been since Appomattox. But, I would caution, we must not lose all faith. For one thing, the lunatic fringe that has cried out for rescinding the 14th Amendment did so in the political heat of an election year (Sen. McConnell, what happened to those promised hearings?), when typically all sorts of loony constitutional amendments have historically been voiced, if not introduced. For example, ever since 1985, when Ronald Reagan was serving in his second term as president, there have been repeated attempts to repeal the 22nd Amendment to the Constitution, which limits each president to two terms. Luckily, this proposal has failed repeatedly in Congress, although it is still introduced over and over again.

It is also fortunate, given the fluctuations in our politics, that it is extremely difficult to amend or repeal any part of the Constitution -- purposely made so by the wise Founding Father who contemplated that the heat of the moment might, from time to time, threaten the fundamental law they were hoping to establish. While the repeal of the 22nd Amendment gets repeatedly proposed in Congress and fails every time, so too does the Equal Rights Amendment (ERA), which should have been ratified when it was first introduced in the 1970s. When I've gotten upset with all the screaming in favor of repealing the 14th Amendment, which reached a crescendo last fall and continues to echo among wingnuts on the right, I take comfort in the fact that those who support this action are not the first to do so (the 103rd Congress in the early 1990s considered an amendment proposal to remove automatic citizenship of children born in the U.S. to nonresident parents). To amend the Constitution, including repealing any part of the document, Congress must pass the amendment with a two-thirds vote in the House of Representative and in the Senate. Then, either three-fourths of the state legislatures (which comes out to 37 ½ of the 50 state legislatures) must approve it, or ratifying conventions in three-fourths of the states must vote their approval. Either way, it is unlikely, even given the topsy-turvy nature of our present politics, that any such proposal to repeal the 14th Amendment could ever get through Congress, let alone be approved by the states. Repealing the entire 14th Amendment would mean that our only definition of United States citizenship, and not just the provision that enables all people born on U.S. soil to become citizens, would be thrown into the rubbish.

But even a partial repeal of the 14th Amendment is unlikely to get through Congress or receive approval from three-fourths of the states. Historians are lousy prophets, but there does seem to be a pattern at work in our present set of circumstances. Every time we go through a severe economic slowdown, which have been frequent in American history since the ratification of the Constitution in 1788, Americans tend to embrace a zealous xenophobia that attempts to demonize the most recent ethnic group of immigrants, prevent them from coming to our country, and limit the rights they can enjoy here. So we've seen this all before, and while the pattern involves ugliness, despicable words and actions, and even sometimes the tragedy of violence, the republic has survived such upheavals in the past. When good economic times return, the nativism conveniently withdraws back into its dark cave, waiting for the next occasion when financial fears and political stoking of those fears will call the monster to come forth once more. Regrettably, we are not living through the last time that Americans will show how mean and ugly they can get toward foreigners who come here seeking the rewards of prosperity and liberty. Yet I do find solace in the fact that "this too will pass" -- a proverb, by the way, that emerged from the folklore of ancient Persia, Israel and Turkey, so I apologize to all you American Firsters out there for using a foreign adage.

When I contemplate the jeopardy that seems to ensnare the 14th Amendment right now, I also, somewhat perversely but with great scholarly satisfaction, take comfort in the fact that the amendment itself has had a sordid history. Despite all that has been sounded recently about its origins (Republican Jeff Sessions of Alabama believes that the "Founders" inserted the 14th Amendment into the Constitution), the actual advocates of the amendment -- the political leaders in the U.S. House and Senate who proposed it after first passing the Civil Rights Act of 1866, which legislatively granted citizenship to all native-born Americans -- did not agree as to what they intended, what they thought the amendment meant, and what they hoped it would achieve. Like any historical event, the history of the passage of the 14th Amendment is filled with ambiguities, complexities and contradictions. During the debate over the amendment, Sen. Jacob M. Howard of Michigan, who had written the clause on citizenship, believed that it excluded American Indians who sought to maintain their tribal memberships and identity. He also believed that "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers" should be excluded from citizenship. A good number of his fellow senators supported his view of the citizenship clause. Section 1 of the amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Howard said that the term jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now." But this hardly cleared up the definition of jurisdiction or offered a straightforward explanation of the citizenship clause. Indeed, a good number of other supporters of the amendment, including Sen. John Conness from California, declared that the amendment granted citizenship to all children born in the United States.

The debate over the 14th Amendment, which went through several different incarnations as reported on the floor of Congress by the Joint Committee on Reconstruction, was stormy and confusing. Like most political proposals, the amendment required the members of Congress to compromise. Charles Sumner, the Radical Republican senator from Massachusetts, declared that he refused to "compromise with wrong." Another senator admitted that the amendment, as it was finally passed, was "not exactly what any of us wanted, but we were each compelled to surrender some of our individual preferences in order to secure anything." Despite all the debate, passion and changes that the amendment went through before Congress sent it on to the states for ratification, one goal remained constant among its supporters: they wished to make sure that the amendment upheld the principle of equality under the law for all Americans. Congress also seems to have intended the amendment as insurance against any future Supreme Court decision that would attempt to deny citizenship to African Americans, as the Dred Scott decision had done in 1857.

The 14th Amendment -- like the 13th and the 15th Amendments, which together are usually referred to as the Civil War Amendments -- differed sharply from how the Constitution had been previously interpreted. Before the Civil War, the Constitution was generally interpreted negatively. For example, the first 12 amendments to the document generally restricted the government from abridging the rights of individuals or states. But the Civil War amendments, including the 14th Amendment, turned the Constitution into what one scholar has called "an engine of change" by actually granting rights to Americans, including the definition of what made a person a citizen of the United States. The 13th Amendment not only ended slavery, it also gave Congress -- for the first time in any constitutional amendment -- the "power to enforce this article by appropriate legislation." The 15th Amendment asserted the right of United States citizens to vote by preventing the federal government or any of the states from denying or abridging that right "on account of race, color, or previous condition of servitude." The 14th Amendment, as one legal scholar explains, has had "the greatest influence on the long-term development of the law of personal status and, more generally, the nature of the federal system." While the first section defined citizenship, three other sections dealt with punitive measures against the South and a fourth gave Congress the power to pass necessary legislation to enforce the amendment, just as a section of the 13th Amendment had done. This shift in constitutional theory and action -- from the Constitution as a passive framework of government to a living document and an instrument of change -- would have enormous consequences in American history and constitutional law. The Civil War amendments gave rise to an assumption -- one that was embraced by Abraham Lincoln and that eventually came to prevail in the mid 20th century -- that the national government had a duty "to act positively, as an instrument, to realize purposes that had inspired the creation of the nation."

Yet the 14th Amendment has become the cause of more litigation than any other part of the Constitution. Almost all of this litigation has attempted to challenge or uphold Section 1, and a good deal of it has swirled around the ambiguous meanings of phrases such as "privileges and immunities," "due process of law" and "equal protection of laws." At the time of its passage, even Republicans admitted that some Democratic critics had just grounds for complaining about the ambiguity of the amendment's wording. A few Republicans conceded that the amendment was "open to ambiguity and … conflicting constructions." Ultimately, Republicans actually celebrated the ambiguity, refusing to define the terms of the amendment narrowly, in hopes that the loose wording would lead to the broadest possible construction of the amendment's meaning.

In doing so, however, they opened up a Pandora's box of varying interpretations of the amendment over the past 142 years that, in one early instance, led the Supreme Court, in the famous Slaughterhouse cases of 1873, to construct the amendment's wording narrowly by upholding the rights of states to their own police powers and declaring that the privileges and immunities clause of the 14th Amendment affected only the rights of U.S. citizenship and not state citizenship. A strong dissenting opinion in the Slaughterhouse cases, written by Justice Stephen J. Field, argued that the 14th Amendment protected the fundamental rights and liberties of all citizens against state interference. But that dissenting view could not sway the court to protect black civil rights throughout the remainder of the 19th century. In the Civil Rights Cases of 1883, the Supreme Court ruled that the 14th Amendment applied only to the actions of government, not to those of private individuals; under this ruling, the 14th Amendment could not be used to protect citizens against persons or entities who violated their civil rights. In the case of Plessy v. Ferguson, decided in 1896, the justices voted 7 to 1 to uphold the constitutionality of a Louisiana state law requiring segregation in private businesses, under the doctrine of "separate but equal." By so doing, the court rejected the idea that segregation implied the inferiority of blacks, and thus it found that the 14th Amendment had not been violated in any way. Justice John Marshall Harlan wrote the one dissenting opinion in the case -- a scathing and learned discourse on civil rights that predicted that Plessy v. Ferguson would become as infamous a decision as Dred Scott. His prediction, of course, came true, and it was not until 1954, when the Supreme Court decided the case of Brown v. Board of Education, that Plessy v. Ferguson was finally overturned.

Yet a warning bell -- like, as Jefferson might say, a fire bell in the night -- was sounded at the time when William Rehnquist, a young law clerk in 1952 who would later be nominated chief justice of the Supreme Court by President Ronald Reagan, wrote a memo entitled "A Random Thought on the Segregation Cases" in which he stated that "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed." He added: "To the argument … that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are." In essence, this was a call not only to revert to the doctrine of "separate but equal," but also a call to define the 14th Amendment as narrowly as possible and to jettison the principle of judicial precedent in the process. It was also a call, as we have seen echoed in the debate over the legality of same-sex marriages in places like California, for majority will to curtail minority rights through the process of referenda rather than to rely on a definition of rights contained in the Constitution, the supreme law of the land and the nation's fundamental, immutable law.

While it can be argued that the general tendency of the Supreme Court since Brown v. Board of Education has been to protect and expand the civil rights of blacks and other minorities under the 14th Amendment, that tendency stands as a vulnerable, visible target. Under the present Supreme Court, whose chief justice, John G. Roberts, served as a law clerk under Rehnquist, an odious majority of its members have all-too-frequently cast aside judicial precedent in favor of partisan activism, and they seem far more interested, far too eager, in using the 14th Amendment in an effort to protect corporations from regulation or to otherwise allow businesses free play in the marketplace than to cite the amendment in the protection of the civil rights of individual American citizens. But, once again, as the proverb goes, "this too will pass." Taking such philosophical comfort, however, should not mean that Americans can let down their guard. The Civil War consensus -- the old truths about what the war meant and how it afforded this nation, as Lincoln said in the Gettysburg Address, "a new birth of freedom" -- is under attack, and it will be left to old Kennedy liberals like me and to the rising generation of new progressives to defend it against all onslaughts, real and imagined.

One other thing can be said and should be said. In the 14th Amendment, Congress decided to define citizenship broadly in the Constitution -- the only definition of citizenship that exists in the Constitution -- and not to limit the wording of the citizenship clause just to those blacks who had been freed from slavery or, indeed, to any black who had born on American soil. With the ratification of the amendment, the United States embraced a measure that, as historian Eric Foner has argued, "transcended race and region, … challenged legal discrimination throughout the nation[,] and changed and broadened the meaning of freedom for all Americans." Historians may, indeed, be poor prophets, but for this historian that does not prevent me from offering my own jeremiad. To tamper with the 14th Amendment is to rock the foundations of our cherished ideas of citizenship. Leave it alone, in all its profound ambiguity, and we will be the better for it.

By Glenn W. LaFantasie

Glenn W. LaFantasie is the Richard Frockt Family Professor of Civil War History at Western Kentucky University. He is working on a book about Abraham Lincoln and Ulysses S. Grant.

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