This is far from a novel thought. But it’s a timely one. We’re used to people who seem to think the 2nd Amendment is the whole Constitution. Others put the overriding focus on the 1st Amendment. But the one that deserves that focus is the 14th Amendment, the amendment which along with the groundbreaking but more straightforward 13th and 15th Amendments remakes the entire constitutional order. I remember in the late 1980s, I believe it was timed to the bicentennial of the federal constitution, then-Justice Thurgood Marshall gave a speech in which he argued that the original, pre-Civil War Constitution was a defective and even shameful instrument. It had, he argued, no claim on our respect or veneration. It’s only with the new founding in the post-Civil War settlement that we have a founding document that has a claim on our allegiance.
In a formal sense it’s hard to say the 14th Amendment is ignored. Because of the way it “incorporates” the Bill of Rights, which had previously only applied to the federal government, it’s at least a key cog in the machinery of a huge amount of judicial reasoning. And often it’s much more than that. But those are technical matters for lawyers and judges. It’s certainly true that this second founding, this deep reworking of the Constitution is mostly ignored in our popular history, even in the last decade in which re-evaluations and debunkings of American history became commonplace. I suspect most people who have a broad sense of the key players at the Constitutional Convention couldn’t tell you which members of Congress wrote the 14th Amendment or what they said about what they were doing.
I was reminded of this when I saw a clip this morning of Sen. Bill Hagerty of Tennessee arguing that the Census shouldn’t count undocumented immigrants or perhaps should only count citizens. He said: “There’s a constitutional interpretation I think that has been misapplied that goes back to slavery days and what portion of a person is going to be counted.” Don’t try to spend time untangling it. It’s as word salady as it seems. The 3/5ths count of slaves maybe applies to undocumented immigrants except for at the end of “slavery days” we had the 14th Amendment which says every “person” gets counted, except that doesn’t matter. Or something.
On the one hand what we have here is just another congressional moron. But it’s also example of how little sway the second founding has in our public culture. I realized when I watched this clip that the 14th Amendment is the amendment we need now, the one we would need to create. Only it exists. It’s right there. But its meaning and its important and in a way even its existence is submerged. Its the 14th Amendment which creates such a thing as a citizen of the United States, something that had only a nominal or indirect existence up to that point. It’s what creates citizens’ robust relationship with the federal government and gives those citizens a bundle of rights vis a vis both the federal government and the states.
And yet rights and documents aren’t self-fulfilling or self-enforcing. This is the most important reality we face today. With unified political power and a corrupted judiciary, Donald Trump can basically do whatever he wants. But the 14th Amendment and the second founding are an important guide posts and warrant for any opposition.
