The Legacy of the Fourteenth Amendment: Background information when reading All the Sinners Bleed

The Legacy of the Fourteenth Amendment

This article relates to All the Sinners Bleed

In All the Sinners Bleed, as Titus Crown, first Black sheriff of Charon County, Virginia, faces down a group of Confederate Army reenactors parading through his town, he "[feels] his skin begin to crawl" and considers that "the Fourteenth Amendment had passed over a hundred years ago" and "racism was alive and well." The juxtaposition of these thoughts is a reminder both of how recently the United States government decided that Black people deserve full citizens' rights, and how much more action is required for that decision to sink in.

The Fourteenth Amendment to the Constitution is one of three Reconstruction Amendments passed in the aftermath of the Civil War (the others are the Thirteenth, abolishing slavery, and Fifteenth, protecting African American voting rights). It is best known for extending the freedoms and rights guaranteed by the Bill of Rights to formerly enslaved people. It was passed on June 13, 1866 and ratified on July 9, 1868, after fierce opposition from the former Confederate states, which could only reenter Congress on the condition that they accept it.

Section One is the most important to the civil rights struggle. It begins with the Citizenship Clause: "All persons born or naturalized in the United States" are citizens of the country and of the state they reside in. This clause invalidated the Supreme Court's decision in Scott v. Stanford (1857) that even free African Americans were not U.S. Citizens, and bore on the citizenship status of other non-white children and children of immigrants. In Elk V. Wilkins (1884), it was unsuccessfully invoked to grant citizenship to children born within the jurisdiction of Native American tribal governments. However, in United States v. Wong Kim Ark (1898), it was ruled that any child born in America to non-citizen parents is a citizen. The fact that the legal status of so many Americans had to be fought for despite this apparently straightforward pronouncement hints at the mixed results of the Amendment overall.

The rest of Section One forbids states from making laws that "abridge the privileges or immunities of citizens," "deprive any person of life, liberty, or property, without due process of law," or "deny to any person within its jurisdiction the equal protection of the laws." The non-trivial details of each of these statements—like what "life, liberty, or property" actually means—have been subject to a wide range of readings.

With so much of their core meaning unspecified, these clauses have been cited to both aid and thwart civil rights progress. While the Civil Rights Act of 1875 prohibited racial discrimination in public accommodations, the Supreme Court later ruled that this decision condoned regulations on private actors and was therefore unconstitutional. Over half a century afterwards, United States v. Guest (1966) negated this by ruling that KKK members could be charged for conspiring to violate citizens' rights. The Guest decision was itself rejected in United States v. Morrison (2000) which ruled the Violence Against Women Act unconstitutional on the grounds that "equal protection" only encompasses violations committed by states, not individuals. Not surprisingly, Section One is one of the most litigated portions of the Constitution.

Section One is most famous, but there are four less remembered sections: Section Two dictates that the representation of Southern states in Congress should increase in proportion to the increase of legal citizens (previously, the Constitution stated that enslaved people were to be counted as three-fifths of a person when calculating congressional representation). Section Three disqualifies those who rebel against the United States from serving as government officials. Section Four dissolves debts to the members and institutions of the Confederacy. Finally, Section Five gives Congress the power to enforce the Amendment.

Over 150 years after its ratification, the Fourteenth Amendment is still frequently brought up, "particularly," an ACLU commentary notes, "by conservative judges and commentators, to attack affirmative action and efforts to desegregate schools." It's crucial to keep in mind that the Fourteenth Amendment was "never a colorblind document" but specifically designed to "eliminate the oppression of historically subjugated minorities." Clearly, given that the same language has been used to justify segregation (Plessy v. Ferguson [1896]) and reproductive rights (Roe v. Wade [1973]) intentions count for little without proper follow-through. A general law doesn't cover all the many forms discrimination can take or change an oppressive culture. Long after 1868, racism that violates any common-sense definition of "liberty" continues to exist.

The legacy of the Fourteenth Amendment is ambivalent. Not only were protections for Black citizens poorly or not at all enforced, they were sometimes interpreted in favor of discriminatory practices. The Black Codes, Jim Crow laws, and the "separate but equal" ruling all deterred Reconstruction. Ultimately, the Fourteenth Amendment has proven far less effective than, as the National Archives puts it, "the determined struggle of Black and white citizens [citizens of all kinds of backgrounds, in fact] to make the promise… a reality" through petitioning, initiating court cases, articulating arguments, and offering dissenting opinions.

1902 political cartoon by E. W. Kemble showing Congress "sleeping on" enforcement of the 14th Amendment, courtesy of The Library of Congress

Filed under Society and Politics

This "beyond the book article" relates to All the Sinners Bleed. It originally ran in June 2023 and has been updated for the July 2024 paperback edition. Go to magazine.