Friday, October 24, 2014

Epps on the Fourteenth Amendment as a Second Founding

Garrett Epps, University of Baltimore School of Law, has posted Second Founding: The Story of the Fourteenth Amendment, which appeared in the Oregon Law Review 85 (2006): 895-912.  Here is the abstract:    
Settle back and let me tell you a brief version of the story I tell in my new book, Democracy Reborn - the story of the Fourteenth Amendment and its vital role in making our Constitution truly democratic.

The National Constitution Center in Philadelphia, which opened in 2003, is a magnificent shrine to our Constitution - part museum, part library, part meeting hall. After leaving the theater, if a visitor looks carefully, he or she may find a small placard that indicates that the Constitution was
ever-so-slightly changed during and after the Civil War. All three of the so-called Civil War Amendments are summarized on this one placard, and here is the entire discussion of the Fourteenth Amendment:

"The 14th defines U.S. citizenship, and includes all black Americans."

This summary represents the meaning of only twenty-eight of the Amendment's four hundred-plus words. And, at that, it does not summarize them correctly, as the Citizenship Clause, the first sentence of Section 1, contains no racial language. It includes not only black Americans, but any person born on American soil and subject to American jurisdiction. The Fourteenth Amendment goes on to specify a number of rights belonging to citizens and noncitizens, and the placard simply ignores this. The Fourteenth Amendment is the longest amendment ever placed in the Constitution, and, I will argue, the most important. But it is, alas, unsurprising that even those entrusted with celebrating our Constitution should be unclear about its text and its importance. Fourteenth Amendment amnesia is a national disease.

Americans know that they have constitutional rights. The Bill of Rights, the first ten amendments to the Constitution, is a source of national pride. Written by James Madison and enacted by Congress when George Washington was president, these amendments are our national legacy and an example to the world.

But relatively few Americans understand that, without the Fourteenth Amendment, the Bill of Rights would be no help to them in most of their dealings with government. That is because, as written by Congress and interpreted by the federal courts, the Bill of Rights originally applied only to the federal government. The first ten amendments barred "Congress" from abridging free speech, setting up a national religion, abridging "the right to bear arms," or requiring self-incrimination, but they left state governments perfectly free to do all those things, which many of them enthusiastically did. For most of us today, just as in the years before the Civil War, our dealings with government power are mostly with state police, prosecutors, regulators, and courts. "For most of us," an old legal saying points out, "the Constitution is the cop on the corner"-and that cop usually draws a state paycheck.