The Fourteenth Amendment: The Framing of America's Second Constitution

February 14, 2008Duke Law News

Feb. 15, 2008 ― The 14th Amendment is not only the most important amendment to the United States Constitution, according to constitutional scholar Garrett Epps ’91, it also effectively sets out all of the constitutional principles we live under today.

“None of the guarantees in the Bill of Rights applied against state government. States were free to restrict freedom of the press, freedom of assembly, and freedom of religion, and many of them did ― enthusiastically,” said Epps, author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America. “The 14th Amendment bars the states from discrimination among races, between sexes, between natives and newcomers, even between citizens and aliens. Everyone born in the United States is a citizen because of the 14th Amendment. State governments must conduct elections according to the principle of one person/one vote because of the 14th Amendment. In fact, the United States is something that we might call ‘an advanced democracy,’ because of the 14th Amendment.”

Speaking at Duke Law on Feb. 14, Epps, the Orlando John and Marian H. Hollis Professor at the University of Oregon School of Law, called the Constitution of 1787 a catastrophic failure from the outset. “It never produced what it was designed to produce: one nation,” he said. “Instead, it produced a sort of centrifugal confederation of incompatible states.” Although it set out a number of procedural rights, the Constitution contained only one substantive political value, he argued, that being the absolute guarantee of slavery as a system that could be used by the states. Moreover, it gave the slave states, through the so-called “three-fifths clause,” disproportionate representation in Congress and effective control of the federal government.

“Foreign policy, domestic policy, and politics were controlled by the ‘slave power,’” said Epps. “This slave power concept is the vital background for understanding what the framers of the 14th Amendment were doing in 1865 and 1866 when they met to redo the Constitution. They knew that if they did not act fast and strike hard while they had the opportunity, the South would emerge from the Civil War more politically powerful than it was before.”

While the anti-slavery leaders of the 39th Congress who framed the 14th Amendment are largely lost to history, Epps argued that Thaddeus Stevens and John Harvard Bingham in the House and Charles Sumner in the Senate should be considered the real “framers” of a new Constitution. Outspoken in their belief that the original Constitution had been flawed since its inception and needed to be thoroughly redone, they were committed to equality of citizens and to building “a union of truly democratic states,” said Epps.

“Within the sphere that it operated, the 14th Amendment was really designed to change everything. It was designed to empower the federal government [and] to empower the Congress to intervene deeply in the political and social systems of the states. It was designed to ensure that American society would be run by republican rule and to ensure birthright citizenship for every person. It was designed to protect all people in the South and to ensure that an open political system evolved in the former dictatorships of the South, and, finally, to protect immigrants and aliens against what John Bingham called ‘the terrible enormity of distinguishing here in the laws between the citizen and the stranger within our gates.’”

The 14th Amendment has not achieved the lofty goals of its framers due, in part, to a conservative Supreme Court in the late 19th and early 20th centuries that “leached it of its radical content,” said Epps. “But the ideas within [it] remain and inspire us to this day. Ever since 1868 when the 14th Amendment was ratified, words like ‘due process’ and ‘equal protection’ have reminded us that the real makers of this country made promises to history that remain unkept.”

Professor Epps’ talk, sponsored by the Program in Public Law, can be viewed as a webcast. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America, is published by St. Martin’s Press.

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