Balkinization: The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment

The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment

David Gans

Yesterday, the Constitutional Accountability Center released a report entitled The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment, available here. The Shield – the second in CAC’s Text and History Narrative Series and the follow-up to The Gem of the Constitution, our report on the Privileges or Immunities Clause (which we blogged about here, here, and here) – tells how the framers of the Fourteenth Amendment gave Congress the lead role in enforcing the Constitution’s new guarantees of liberty and equality, only to have this explicit grant of power eviscerated by a hostile Supreme Court.

The Court’s errors began early on, during the end of Reconstruction, when the Court ruled that Congress had no power to protect the constitutional rights of freedmen and other Americans against “private” action. These rulings ignored that the Fourteenth Amendment was written to give Congress the power to protect the freed slaves and their allies when States turned a blind eye to murders, beatings, and discrimination by private persons and terrorist groups in the South. The result was that, for almost a century, groups like the Ku Klux Klan were free to roam and rampantly deprive citizens of their constitutionally secured rights.

Conservative Justices on the modern Court have compounded this error by reaffirming these early rulings and creating new, picked-out-of-thin-air, restrictions on the power of Congress to prevent and deter state violations of constitutional rights. Citing judicial supremacy and federalism, the Supreme Court has invalidated or curtailed a number of critical federal civil rights laws, including the Violence Against Women Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. These rulings got the Constitution exactly backward. The framers who wrote the Fourteenth Amendment did not trust the States to protect fundamental rights and were more than a little suspicious of the Supreme Court, which had announced in Dred Scott that African Americans “had no rights which the white man is bound to respect.”

There could not be a better time to tell this story. As we approach the end of the Supreme Court’s current Term and the much-anticipated ruling in the NAMUDNO case, it is clear that the Voting Rights Act – specifically, the preclearance requirement, one of the most important and successful provisions of the Act – may be up next on the Court’s chopping block. During the oral argument in April, the Court’s conservatives refused to recognize that the Civil War Amendments give Congress a central role in enforcing liberty and equality, and displayed marked hostility to the Voting Rights Act. If these Justices actually pull the trigger and invalidate one of most important provisions of Act, NAMUDNO should frame this summer’s confirmation hearings for Judge Sotomayor. A ruling gutting a core provision of the Voting Rights Act would illustrate that the Court’s conservatives are not willing to take the text and history of the Civil War Amendments seriously, and the need for Justices who will.

David Gans is the Director of the Constitutional Accountability Center's Human Rights, Civil Rights & Citizenship Program. He is co-author of CAC's report, The Shield of National Protection, and an amicus brief filed by CAC in the NAMUDNO case.

Posted 4:01 PM by David Gans [link]