Five of America’s most prominent constitutional and reconstruction historians gathered yesterday evening in Linsly-Chittenden Hall to discuss “Equal Protection: Origins and Legacies of the 14th Amendment,” during which each speaker meditated on the history surrounding the passage of the 14th Amendment and its importance for modern issues surrounding judicial policies and practice at the federal and state level.
Moderated by David Blight, professor of American history and director of the Gilder Lehrman Center for the Study of Slavery, Resistance and Abolition, the event brought historian Eric Foner of Columbia University; Akhil Amar ’80 LAW ’84 and John Witt ’94 LAW ’99 GRD ’00 of the Yale Law School; Tomiko Brown-Nagin LAW ’97 from Harvard Law School; and Amy Dru Stanley GRD ’90 of the University of Chicago. The speakers each gave brief introductory remarks on what they saw as the most important aspects of the history and consequences surrounding the 14th Amendment.
Passed in 1868, the 14th Amendment addressed the rights of citizens and equal protection of the laws. The amendment was a response to the problems of slavery in the South following the close of the Civil War.
While each of the five speakers had their respective focuses, an essential point of agreement among the panelists was a fact Blight mentioned at the start of the event — that the 14th Amendment “federalized the bill of rights.” What this ended up meaning for past and present political events, however, was nuanced differently by each speaker.
Foner was the first to speak, drawing attention to the events directly preceding the passage of the 14th Amendment. As one of the leading living scholars of reconstruction, Foner said the period was a dynamic era full of compromise; accordingly, it was no surprise, he said, that the 14th Amendment was a document formed by compromise. Foner dismissed the historical relevance of interpretive conclusions by current and former Supreme Court justices in regards to the 14th Amendment, eliciting laughter when he characterized the justices as “people uneducated about American history.”
According to Amar, the language of the 14th Amendment was about equality in birthright citizenship. Amar reminded the audience that the Bill of Rights solely applied to law at the federal level, and only the 14th Amendment empowered the federal government to enforce the dictates of the Bill of Rights on the states. As a corollary to this, Amar mentioned how the 14th Amendment functioned to significantly strengthen the federal government, another important theme of the event. Constantly substituting the names of historical figures and events involved in Reconstruction with names from the present — namely presidential candidate Donald Trump and the War in Iraq — Amar underscored how many of the problems of the era of the 14th Amendment were applicable to current events.
Witt noted that while the 14th Amendment gave Congress new enumerated powers, it marked the end of Congress’s authority stemming from just war. While it brought about the power of a new regime and even created a “mini-constitution of its own,” Witt emphasized that it also marked the end of Congress’s war-time authority over the governance of the South.
Stanley took the podium after Witt, arguing that the 14th Amendment changed the American conception of human rights.
“Slave emancipation gave rise to a new conception of free personhood,” she said. Stanley argued that the Civil Rights Act of 1875, in conjunction with the pressure Congress applied through the 13th and 14th amendments, created a focus on people’s rights to “public rapture” and entertainment.
Quoting the influential author, historian and civil rights activist W. E. B DuBois, Brown-Nagin framed the era of reconstruction as “black America’s brief moment in the sun.” She emphasized that the 14th Amendment was similarly a brief and incomplete moment for black America, bringing out the idea that reconstruction is “an ongoing process.” Brown-Nagin traced a cycle of “enforcement and neglect” in both Reconstruction and the broader history of civil rights in America, broaching both “the second Reconstruction” of the 1960’s civil rights movement and the more contemporary Black Lives Matter movement.
The floor then opened for audience questions. They ranged from the highly speculative — one audience member asked how Reconstruction would have been different if Lincoln had not been assassinated — to those with a more practical focus — another member asked if new laws for law enforcement were needed for modern American civil rights movements.
Student reactions to the event seemed positive overall.
Jackson Leipzig ’19 said that he especially appreciated the speakers’ attention to historical detail.
“One of the most salient points from the panel discussion was Professor Amar’s emphasis on positioning the 14th Amendment within the context of a U.S. Constitution whose provisions, especially those regarding voting rights, were heavily influenced by the role of slavery in American society,” Leipzig said.
Genevieve Lebaron, a “Modern Slavery and Human Trafficking” fellow with the Gilder Lehrman Center, was interested in the connections the speakers made between social movements and the Constitution. She also noted how the efforts of the Gilder Lehrman Center, including this event, could be seen as the beginning of a response to many of the conversations surrounding race that took place on campus last semester.
July 9, 2018 will mark the 150th anniversary of the ratification of the 14th Amendment.
Correction, June 11: A previous version of this article misstated the date of the 150th anniversary of the 14th Amendment’s ratification.