El Imperio de Calibán

The Fourteenth Amendment is a living document, and Clarence Thomas is a terrible historian

June 26 was a pretty good day for civil rights: the Supreme Court guaranteed the right for same-sex couples to marry by a 5-4 majority in Obergefell v. Hodges.

True to form, the conservatives dissented, drawing upon arguments from strict construction and original intent. Clarence Thomas served up one particular flavor: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.” The presumption being that the benefits of marriage are somehow a government give-away, like those apocryphal Obama cell phones. 

This is the same strange logic that led Andrew Johnson to veto the Civil Rights Act of 1866 on the grounds that guaranteeing equal rights for all Americans, regardless of race or former status as slaves, constituted granting African Americans “special” rights. In protecting the rights of the freedpeople, Johnson argued, the bill established “safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”

Of course this is not the case.  Freedom is not a government give-way, it’s a government guarantee.

Marriage has been many things over many years, but in our day it is foremost a contract that imparts particular benefits and responsibilities. The government has no compelling interest in impeding that contract, only prejudicial ones. Repeat: The case for same-sex marriage is not a reach. For the government to stand aside and let people do what they will is entirely in line with old-school liberalism, and even what passes for modern libertarianism.

It may indeed be right that, as Thomas writes, “government cannot bestow dignity, and it cannot take it away.” But it sure can mess with your ability to enjoy the basic benefits of the society around you, as Thomas’s own examples (slavery, Japanese internment) deftly illustrate. (Great example of reactionary mentality masquerading as race pride.)

Oppressive policies such as segregation and internment may or may not degrade their victims in their own minds, but that is not the point. The point is that these are state-sponsoredefforts to try to make that degradation succeed. By Thomas’s warped interpretation of African American history, slavery was just fine, for even if the state practiced and championed the institution, the slaves’ sense of self could never be obliterated. It is not the consequence on the psyche of the oppressed that matters, it is the states’ intention and practice of oppressionthat requires remedy.

Antonin Scalia may not like it, but “normal” changes (sometimes remarkably rapidly), and same-sex marriage is the new normal. Thankfully, what was acceptable in 1787 or 1866 may not be acceptable now, and vice versa. The Constitution is not a stone tablet. As attests what happened in 1972, when Title IX was created to protect women’s rights, the protections guaranteed by the Fourteenth Amendment adapt to the times.

If we’re going by original intent, then the original intent of the Fourteenth Amendment was flexibility.  The Fourteenth Amendment was created not just to protect the rights of freed slaves, but to let the national government protect the rights of all threatened minorities, far into the future.

It’s worth a read – at least, of the critical Section I.

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You don’t hear anything at all about the actual rights that are protected, do you?  That’s because the intent of the amendment was much broader than that.

The amendment does specify who rights belong to, for it defines federal and state citizenship — clearly, and really for the first time.  That dealt with problem number one, for if the oppressed (in this case, freed slaves) had the rights of citizens, they themselves could invoke the full force of the law on their own behalf. Good old American individualism and small-government mentality.

But there was a second problem the framers also had to address. The original Constitution severely constrained the power of the federal government to impair the individual liberties of American citizens — that’s the Bill of Rights, and particularly the Fifth Amendment. At the time, this all fit nicely with the political ideology of the revolution: liberty was thought kept safest when distributed far from central government, in the states.

But what happened when the states themselves acted against individual liberties? In a contest between state and federal government, which would prevail? To put it another way: the Constitution (through the Bill of Rights) protects individual liberties against the unjust exercise of federal power; what, though, would protect individual rights against the unjust exercise of state power?

In asserting the primacy of federal over state authority, the 39th Congress crafted a sweeping reconceptualization of federal-state relations, making the federal government the ultimate and final arbiter in cases where individual rights are infringed upon by the power of government.

So let’s imagine going back in time (cue wavy-screen-time-machine effect), so we can be there at the birth of the thing.

An ongoing problem did indeed spark the creation of the Fourteenth Amendment. This was the plight of four million bondspersons now free, who were being subjected to virtual re-enslavement not simply by their former masters, but by the states of what had been the Confederacy. When former planters and their representatives returned to southern statehouses just after the Civil War, the states immediately passed a series of debilitating black codes, which strictly limited blacks’ political participation, their access to the political process, and their paths to economic mobility.

Events such as the Memphis Riot of 1866 demonstrated that those freed from slavery required the full protections of citizenship, which only the federal government could provide (image courtesy Wikipedia)

The Civil Rights Act of 1866 sought to remedy this by defining American natives as citizens, and extending to all in the southern states equal rights of federal citizenship.

The immediate purpose of the Fourteenth Amendment was to ensure the constitutionality of the Civil Rights Act, so that any southern-controlled Congress of the future could not repeal it. James Garfield proposed to “lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it.” What happened to the Fourteenth in the courts of the late 1800s mocked such high-minded hopefulness (more on this in a little), but it does signal the framers’ deep and lasting purposes. The framers viewed their work as repairing a flaw in the original Constitution.

They didn’t change the Constitution to pass a law; they passed the law because they had fixed the Constitution.

They posed their solution in broad and principled terms precisely because they realized that the specific case they confronted could come up again and again in other guises, whenever states sought to undermine liberty. Despite Andrew Johnson’s objection, the amendment did not promote the interests of one special group – what was termed “class legislation” back in the day. It was meant to clearly establish the principles that granted Congress the ability to step in and protect the rights of any group targeted by the states for unequal treatment.

To be sure, there was a cost to framing the amendment in terms of broad principles, for such general language could be interpreted in many ways, some contrary to the original spirit and purpose of the amendment. This is exactly what happened in the last quarter of the nineteenth century and the first quarter of the next, when the Supreme Court began eviscerating the amendment’s role in protecting freedpeople’s rights. Instead, the court transformed it into a tool for corporations to resist government regulation. No conservatives at that time complained about original intent.

This process went stunningly far. In 1896, the Supreme Court ruled that in being compelled to sit in a segregated streetcar Homer Plessy had not had his civil rights violated. Why not? Because according to the majority opinion, the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” A rather profound misreading of the amendment’s original intent, no? Again, conservatives didn’t complain.

But the very vagueness that permitted such atrocious misreadings is now serving its purpose exactly as intended. As with the framers of the original Constitution, the framers of the Fourteenth understood that they were making rules not just for their day, but to serve the following generations as well. And they knew that those who followed would likely need their creation for new purposes. They knew they were crafting a broad protection of liberty, and they did not care to specify the conditions under which it should operate, because that was the job of the generations to follow. Their job was simply to secure Congress the right to step in whenever the states impaired the rights of individuals. That’s the whole purpose of the powerful Section I.

So though they clearly sought to root out an existing evil against the freedpeople, the framers of the amendment explained it as having broad application. Foremost among these men was Ohio Congressman John Bingham, who put the question simply to Congress: “whether you will give by this amendment of the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution?”

The Congressmen debating the measure clearly thought about its wide application. They wondered if it might be used by married women to argue for expanded rights to property, and they anticipated (and affirmed) that the amendment would create naturalized citizens of everyone native-born, regardless of their heritage. William Pitt Fessenden of Maine went so far as to suggest that Bingham had not even proposed the measure to support the Civil Rights Act of 1866. “During all the discussion in the committee that I heard,” he stated, “nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.”

When asked directly if the amendment were not intended solely to protect the rights of freed slaves, Bingham replied that “it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment.” (This was a reference to Confederate treatment of Union loyalists.) He also suggested that it would apply to states that violated the rights of blacks from antebellum-era racial prohibitions in nominally “free” states such as Indiana and Oregon.

Moreover, Bingham understood Congress to be undertaking a work of long-term constitutional significance. The Fourteenth Amendment constituted a redemptive effort to fix a fundamental flaw in the original plan of government. When South Carolina had sought to nullify federal law back in 1833, Bingham argued, Congress had “looked in vain for any grant of power in the Constitution” to support the civil rights of South Carolinians who dissented from their state’s policy.

In fixing this flaw, the new amendment would clarify the issue not just in the present. Forever after, it would “protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.”

This long-term security was needed, Bingham believed, for the Confederacy had demonstrated just how much damage could be wrought in the name of states’ rights. The Civil War’s untold losses in lives and property had made this clear. The nation now demanded “something in the shape of a security for the future against the recurrence of the enormous evils under which the country has labored for the last four years.” This echoed the language of the Joint Committee on Reconstruction, on which Bingham served, which asserted the government’s duty “to secure itself against similar wrongs in the future.”  The framers understood themselves to have provided an ongoing solution for a general problem (the states’ interference with individual liberties) that might arise at any time in the future.

Ohio Congressman John Bingham, one of the framers of the 14th Amendment, and its most vocal champion in the House

In Obergefell v. Hodges, the majority ruled sagely, and completely within the original intent of the framers of the Fourteenth Amendment. The rights its confers are not government give-aways or special favors. They are a bold assertion of the federal government’s responsibility to secure the liberties of minorities singled out for state-sponsored prejudice.

If, as Clarence Thomas and his strict constructionist colleagues assert, we should consider original intent, then we cannot do better than the words of the amendment’s most important framer. According to Bingham, those who wrote, championed, and passed the Fourteenth Amendment sought nothing more than “the care of the Republic, not only for the present, but for all the hereafter.”