A Breath of Fresh Air

It is such a breath of fresh air, seeing Justice Ketanji Brown Jackson say from the bench what the 14th Amendment actually says. “It’s not a race-blind remedy,” she says, in something of an understatement. But we can actually go well beyond this since so much of modern jurisprudence, mostly but not only from the right, is based not only on ignoring the context and plain text of the 14th Amendment but pretending that the real Constitution — albeit with some additions and fresh paint jobs — is the one finalized in the first Congress as the first ten amendments. The Civil War amendments are not only not race-blind. They reflect a larger realization and aim: that the whole state thing just hadn’t worked out.

The 14th Amendment creates something called citizenship of the United States with various rights or “privileges and immunities” that states cannot violate. It reaffirms that states are subordinate jurisdictions and implicitly that their function had been far more to create mischief than progress.

This is all gauzed over today with the political and judicial edifice we call “federalism,” largely though not entirely the work of the late-20th century conservative legal movement. It proposes a set of principles and historical claims under which the federal and state governments are designed to exist in a kind of balancing equipoise. But mostly this isn’t true. “Federalism” is to a great degree the product of a long and mostly reactionary clawing back of the power by the state governments. Not entirely. But mostly.

Madison and Hamilton had wanted to neuter the states back in the 1780s. But the need to get a big majority of the states to agree to adopt the constitution made that impossible. They had to settle for the constitution as agreed to.

It would be possible to argue that 150+ years since the passage of the Civil War amendments represents a cooling of the ambitions of the statecraft of the 14th Amendment and an effort to work out some equitable balance between localism and national power. There’s some truth to that. But that’s not an argument available to anyone who argues for originalism. With that you have to go back to what the Reconstruction Congress thought they were doing. And what they were trying to do was quite radical in the context of the 80 preceding years of American national history — indeed, quite radical in some ways in relation to today.

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