In the aftermath of the Civil War, the matter of repairing and redressing the issues which caused the existential bloodbath to occur in the first place fell upon the newly-formed Republican Party, which at the time was not yet even 18 years old. This concerted effort to heal and resurrect the Union became known as “Reconstruction,” which took the form of the thirteenth, fourteenth, and fifteenth Amendments, among other legislative changes.
These constitutional amendments, the first since the days of Jefferson and Adams, form the foundation on which our modern view of the American Dream is built. July 9 is the 150th anniversary of the adoption of the Fourteenth Amendment. While much of the text addresses contemporary issues of the former slave-holding era, the amendment can still offer us valuable insight into the ideas and ideals that make America the land of the free.
But first, some history.
Although the Fourteenth Amendment was introduced during the 39th Congress, it was adopted during the 40th Congress. Both had heavily Republican chambers. In the former, for example, the House was 70 percent Republican and the Senate 75 percent Republican. These margins grew in the following years, and the Republican coalition focused their political power on securing equality and freedom for millions of black Americans and former slaves. This came on the heels of the Civil Rights act of 1866, which had initially been vetoed by Democratic President Andrew Johnson,
More than 70 drafts of the amendment were introduced before an adequate version was agreed upon and sent to the states for ratification. Unsurprisingly, the southern states of the former Confederacy initially refused to ratify the amendment, and Congress later made its ratification a prerequisite for states to regain federal representation.
Federal troops were mobilized and marched south to take control of the Democratic civilian governments, pass the amendment, and enforce its provisions. On July 9, 1868, the state legislature of South Carolina passed the resolution, securing the three-fourths supermajority of states necessary to amend the Constitution. Some states, however, continued to protest. Texas waited another year before ratifying. Delaware didn’t do so until 1901. California and Maryland amazingly failed to ratify the Fourteenth Amendment until 1959, having been members of the Union for more than 100 years.
The first part of the Fourteenth Amendment is known as the Citizenship Clause, which further extended the status of citizenship to black Americans. It reversed the 1857 Supreme Court Dred Scott decision, which declared that slaves and their descendants were not citizens of the United States.
The decision, penned by Jacksonian Democrat Chief Justice Roger Taney and supported by Democrat President-elect James Buchanan, was to become a principal motivation in the growth of the anti-slavery Republican Party and a major factor in the Civil War. The Fourteenth Amendment spoke clearly and plainly about the matter, stating unequivocally that “all persons born or naturalized in the United States … are citizens of the United States” without any qualification of race, gender, or creed.
Combined with the Equal Protection and Due Process Clauses (which are fairly self-explanatory), this aspect of the amendment enshrined into law the idea that everyone in the country was equal in the eyes of the government and as such must be treated fairly. It would also be the failure of Democratic state governments in the South to abide by this principle that would spark the Civil Rights Movement one hundred years later.
The amendment goes on to say, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens …” The Supreme Court has repeatedly interpreted this to constitute the incorporation of the Bill of Rights at the state level, wherein no state can deny the citizenry its rights that are guaranteed by the federal government. Most recently, for example, in the 2010 landmark case McDonald v. Chicago the Court reaffirmed District of Columbia v. Heller and secured the Second Amendment rights of citizens against the threat of state prosecution or infringement.
So where does that leave us today? Surely, the country isn’t facing the same existential threat that it was in the 1860s. True, but while the political opposition of today isn’t as ludicrous or visceral as 19th century slaveholders, the threat they pose to the central principles safeguarded by the Fourteenth Amendment is nonetheless severe and palpable. In a time when the left has already reached second base with socialism, a basic understanding of the Fourteenth Amendment and what it stands for can be a powerful tool to combat that threat.
The text of the amendment refers to rights as “immunities.” This connotation is fundamentally important to our conception of what rights are and what they should be. And the Fourteenth Amendment is an excellent reiteration of that. Immunity is not something that can be given to you. Sure, it can be secured and enforced — and indeed, that’s what the federal government is for — but immunity is not supplied.
This is what the Founding Fathers meant when they said “inalienable rights” of life, liberty, and pursuit of happiness. They’re inalienable because they do not stem from the government. They’re innate, and some, like the Founders, might say that they are God-given. But to note these rights is not to say that the government must supply you with life, liberty, and happiness. It means that the government cannot take them away from you. The government cannot take away your life, liberty, or happiness, without due process of law (also guaranteed by the Fourteenth Amendment).
This is why the left’s political philosophy is pernicious and pathological to its core, but most importantly, wrong. These leftist propositions of “government-given rights” aren’t different opinions. They’re not opposing viewpoints. They’re not issues that can be straightened out by discussion or debate. These are structural disputes that go right to the heart of the meaning of the Fourteenth Amendment. Health care, housing, basic income, a job — these things are not rights.
If they were, they would have to be supplied by the government, which runs diametrically opposed to what the Founders envisioned and what the Fourteenth Amendment expresses: the explicit extension of our nation’s foundational precepts to all members of the United States. That membership is not limited by any external characteristics or any degree of propriety.
The Fourteenth Amendment is not some sort of federal intervention. It’s not a positive injunction or a government fiat. On the contrary, it is a protection against those very things. It’s protection against the government. To misconstrue those ideas so much as to suggest that the government must supply the population with materialistic “rights” is to deny the fundamental and inalienable right to immunity from the government that was immortalized by the Fourteenth Amendment 150 years ago.