A centerpiece of my new book is the first Bill of Rights Day, which marked the 150th anniversary of the ratification of the first ten amendments. It was a major national festival, including parades, public readings, a special prime-time radio show, and an address by the President.
This year we will celebrate the 150th anniversary of the ratification of the Fourteenth Amendment. What is being done to mark that momentous occasion? Not much. There is an academic conference here and there, and some civic-minded organizations are organizing events. But there will be, as far as I know, no public recognition of this anniversary. It's shameful, but not surprising.
Not long ago a student of mine discovered an interesting fact. Aside from a paper written when he was in middle school, Martin Luther King Jr. almost never mentioned the Fourteenth Amendment in his speeches or writings. The "I Have a Dream" speech refers to many American landmarks, but not to the Fourteenth Amendment. In King's era, of course, the Fourteenth Amendment was still tainted by the slander that Reconstruction Republicans were interested only in punishing the South. Today that Jim Crow history is history. Still, the Fourteenth Amendment is not getting its due.
I assume your post is rhetorical. It's pretty clear that the current regime has little to no interest in the 14th A.
ReplyDeleteIt isn't technically for the 14A, but one thing that in effect honors it is the second season of the "Landmark Cases" series that begun with an introductory episode on Monday.
ReplyDeletehttp://landmarkcases.c-span.org/default.aspx
Most of the cases are 14A disputes.
Does unwittingly come to mind as a possible explanation? Or Charlottesville?
ReplyDeleteI expect there's no public celebration of the anniversary of it's ratification, because of the whole "infant mortality" thing; Being effectively spiked by the Supreme court so soon, and many decades later only partially revived in a warped (Substantive due process, instead of P&I.) form. It lacks the "Bang!" all at once vibe that usually results in an event being celebrated.
ReplyDeleteThis might also be why MLK doesn't make a big deal of it. The truth is, the 14th amendment really wasn't doing much of the heavy lifting in the Civil Rights movement.
Brett with his:
ReplyDelete"The truth is, the 14th amendment really wasn't doing much of the heavy lifting in the Civil Rights movement."
obviously is following the Charlottesville talking points. Perhaps Brown v. Board of Education (Unanimous, 1954) involved a tad of the 14th A? Brown was a start, a spark, of the Civil Rights movement.
Perhaps an assessment of 14th A winners/losers should be tabulated. Consider the 14th A role of McDonald v. Chicago that revved up all the 2nd A absolutists just a few short years ago. Was Brett a winner with that? Didn't McDonald provide a "Bang"? And let's not forget the other provisions of the bill of rights that were incorporated via the 14th A over time. Of course, often when one wins someone else loses.
The Southern history revisionists were out in full force with the 100th Anniversary of the Civil War As but were quickly exposed for their lies.
"It's pretty clear that the current regime has little to no interest in the 14th A."
ReplyDeleteIt's more complicated than that I think. While many conservatives still are rhetorically unenthusiastic about the 14th Amendment (at one time many conservatives saw it-quite rightly-as the biggest blow against their beloved [purely rhetorical] trope of 'states rights' in our history), they are quite quick to use it when states and localities do things *they* don't like (affirmative action, gun control, etc.).
"The truth is, the 14th amendment really wasn't doing much of the heavy lifting in the Civil Rights movement."
As Shag notes Brown was an 14th Amendment case, as was Loving.
I have to admit I'm unfamiliar with these "Charlottesville talking points" you're referring to. Maybe you could summarize them?
ReplyDeleteMy point in regards to the 14th amendment's lack of "bang" is simply that the impact of the 14th amendment didn't really date back to it's ratification, because the Supreme court almost immediately rendered it moot with a series of bad faith rulings.
Then when the Court got around to undoing the damage, they only restored the amendment piecemeal, over a considerable period of time, and in a distorted form. It STILL hasn't entirely been restored by the judiciary, some parts of the Bill of Rights still aren't incorporated, and for no good reason.
So the date of ratification doesn't really signify anything spectacular. Brown makes a better date to celebrate, because something actually happened.
And, of course, the heavy lifting in the Civil rights movement was done by the marchers and their allies, NOT the courts.
Things have changed dramatically since the 150th anniversary of the Constitution.
ReplyDeleteWhy would today's progressive political establishment and media care to celebrate the Constitution?
This mandarin class generally views the Constitution as an impediment, something to ignore, rewrite or erase, unless it becomes politically useful to overrule laws which they oppose but cannot democratically change.
Does the vast majority of the population even know what the Constitution requires?
Do the K-12 government schools even teach the Constitution, nevertheless the Civil War amendments, any longer? If they do, I doubt the class gets much past a general and increasingly incorrect gloss on the roles of the three branches of government and maybe the original bill of rights (less the politically incorrect rights).
Is SPAM referring to the Mandarin Orange class of the Forgotten Trump voters/enablers, acting wittingly or unwittingly?
ReplyDeleteQuery: Did Brett ignore the "nuance" of my earlier reference to McDonald's 14th A incorporation?
"The truth is, the 14th amendment really wasn't doing much of the heavy lifting in the Civil Rights movement."
ReplyDeleteSchool segregation was fought for decades bit by bit by usage of the Equal Protection Clause. Then, the Equal Protection Clause was used for segregation in general. The Due Process Clause also was repeatedly used by Marshall et. al. to address injustices in the criminal justice system. When civil rights leaders were targeted when they put an ad in the paper, it was the Fourteenth Amendment that applied since a state, not the federal government was involved.
Part of the problem here might be that people don't think about the Fourteenth Amendment a lot of times. They speak of the "First Amendment," e.g., when in fact it is the Fourteenth Amendment involved. As to marches, etc., they were marching for basic principles, such as those found in the Fourteenth Amendment. And, they repeatedly were protected by it in the lawsuits that arose.
It is also not some parts of the Bill of Rights are not incorporated. The only parts not incorporated are the grand jury provision and to the extent it can be the Seventh Amendment. And, to the extent it is "part" of the BOR, the federal and state government don't have completely equal requirements as to juries such an unanimous juries (a couple outliers). It was seen as a proper balance of federalism to allow the states to continue their practices in this respect. The Third Amendment was never formally incorporated by the Supreme Court for lack of a good case though it was implicitly so in Griswold v. Ct.
You seem almost militantly resistant to my point, which is just that nobody celebrates the anniversary of the 14th amendment, because it was nearly a century after that before it had any significant consequences. And it still isn't fully implemented.
ReplyDelete"It was seen as a proper balance of federalism to allow the states to continue their practices in this respect."
ReplyDeleteThe proper balance of federalism for the courts to implement is the balance actually written into the Constitution and its amendments. The courts really have no good excuse for treating the Bill of Rights like a Chinese menu, and ordering ala carte.
They just like some rights better than others, and treat them accordingly.
The importance of court action v. popular movements is a long debate but both matter. And, to "bang," various cases continue to have that including Brown v. Bd. As to piecemeal, that is how a lot of things were protected ... over time. Maybe, the problem is 150 is just not that special of a birthday.
ReplyDeleteStill. Debating over usage of a certain clause of the 14A (and substantive due process was always an aspect of things & you can find articles with an originalist cast to provide details) amounts to a sideshow here. The basic concern was civil rights, the three prong mechanism working as a unit. If the 14A is discussed maybe that can be covered some too.
Mr. W. is correct that selectively the 14A is honored but do think as a whole many in power now are not big fans. They (selectively; cf. local limits on guns) refer to "democracy" when people appeal to the national rights not determined merely by elections and have a restrictive view of citizenship and rights of "persons." The honoring of debt provision is ignored and the second section regarding voting rights is protected in breach. Equal protection (except when affirmative action is involved) also is protected somewhat in breach.
Brett: You seem almost militantly resistant to my point, which is just that nobody celebrates the anniversary of the 14th amendment, because it was nearly a century after that before it had any significant consequences. And it still isn't fully implemented.
ReplyDeleteI don't think this is the reason the nation is not celebrating the 14A's 150th birthday.
I doubt you could find much more than 2-3% of the population who could recount without the prompting of a multiple guess polling question what the 14A says, nevertheless its litigation history.
In contrast, when the Constitution had its 150th birthday, people knew and celebrated the freedom of speech, even though the Courts at that time had only recently enforced the right to any extent.
You seem almost militantly resistant to my point, which is just that nobody celebrates the anniversary of the 14th amendment, because it was nearly a century after that before it had any significant consequences. And it still isn't fully implemented.
ReplyDeleteThis exaggerates how little the amendment did before c. 1968. To cite but one thing of many, Chinese people born on U.S. soil were protected by it in the late 19th Century even if their parents were born abroad. Maybe, if we periodically honored its anniversary (like we do other things whose tenets are not fully honored), more people would be aware of its full rich history and not provided simplifications.
The proper balance of federalism for the courts to implement is the balance actually written into the Constitution and its amendments.
The Fourteenth Amendment doesn't explicitly say that the Bill of Rights should be incorporated so "written" won't take you as far as you want to go.
Over time, by the institutions the Constitution sets in place to interpret the document, it was determined that the proper balance didn't involve incorporating the Grand Jury Clause and so forth. Maybe, the job should be completed, though the job is nearly so. It is not a reason not to celebrate the 150th Anniversary because states can use other means to indict people.
The 14th A, together with the 13th A and 15th A, have been considered by some as in effect a Second Constitutional Convention because of their major changes to the 1787 Constitution and the bill of rights ratified in 1791. These Reconstruction As were/are a big deal, with the 14th continuing most prominently in the interpretation/construction of the Constitution as amended whether via originalism or non-originalism.
ReplyDeleteCheck out this link:
ReplyDeletehttp://www.mnd.uscourts.gov/Community-Outreach/Open-Doors/Second-Founding.pdf
for a brief article titled:
“Second Founding,” celebrating the 150th
anniversary of the Reconstruction
Amendments to the Constitution.
So there may be something in the works for all three As.