Friday, June 28, 2024

Constitutional Iconoclasm and the Power of the Fourteenth Amendment

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Evan D. Bernick

Mark Graber isn’t a timid man. Nearly two decades ago, Graber contended that Chief Justice Roger Taney’s infamous pro-slavery majority opinion for the Court in Dred Scott v. Sandford articulated a plausible interpretation of a slavery-accommodating Constitution. Now Graber has written Punish Treason, Reward Loyalty (“PTRL”), an ambitious and provocative piece of constitutional iconoclasm which argues that what is today widely regarded as the most important provision of the Fourteenth Amendment was mostly an afterthought for its Framers. To amend Thomas Hobbes’s (possibly apocryphal) reaction to a theological-political treatise by a Dutch contemporary (about whom much more below), few durst write so boldly.

PTRL is an essential resource, not only for law professors but for historians, political scientists, and indeed anyone who is interested in a past that continues to shape the present. It is also flawed in deeply frustrating ways. What follows is a critique of Graber’s iconoclasm and a confession of abiding constitutional faith.

Everyone knows—or thought they did—that the Fourteenth Amendment expresses national commitments to civil rights and racial equality. Section One, with its definition of U.S. citizenship and express guarantees of the privileges and immunities of national citizenship, due process of law, and the equal protection of the laws, is first in order and rank among the Fourteenth Amendment’s provisions. These civil-rights guarantees were directed against the Black Codes—post-Thirteenth-Amendment efforts by former Confederate states to reestablish slavery by another name. They were meant to place beyond any doubt the constitutionality of federal legislation that would protect formerly enslaved people, especially the Civil Rights Act of 1866. Section One was a triumph.

And everyone knows what happened next. The Fourteenth Amendment was never allowed to succeed. A Republican-controlled Supreme Court gutted Section One, contemporaneously with a general Republican retreat from Reconstruction that was cemented with the withdrawal of federal troops. This withdrawal was the fruit of an 1877 “compromise” with Democrats that elevated a Republican to the presidency at the price of abandoning Black people in the former Confederate states to the Ku Klux Klan and Jim Crow. The Fourteenth Amendment would not recover for more than half a century. Reconstruction’s failure is a tragedy.

This iconography—Section One, triumph, and tragedy—dominates scholarship, judicial opinions, and popular discourse concerning the Fourteenth Amendment. Section One is civic Scripture. The other Sections (with the occasional exception of Section Five) are relics that are barely known, let alone venerated. The amount of attention that Section Three has received of late is striking in part because it is so unusual—it took a literal riot at the Capitol (encouraged by a sitting President) to make it happen.

Graber contends that most of this is so much constitutional superstition—a constellation of false and possibly harmful beliefs about the Constitution and constitutionalism. Constitutions aren’t just about rights—often enough, they’re about power. Reconstruction Republicans were primarily concerned with preventing the return to power of a secessionist oligarchy comparable to the pre-War “Slave Power” (and in many cases consisting in the same people). The Fourteenth Amendment is tailored to achieve that goal.  

To be sure, those loyal to the United States, regardless of race, needed protection for their civil rights. But they also needed protection against economic domination, in the form of taxation to compensate slaveholders for the expropriation of their “property” and to pay secessionists’ war debts. And protecting rights required the Republican Party. Sections Two, Three, and Four of the Fourteenth Amendment were calculated to entrench control of national politics by a party that considered itself uniquely representative of a popular majority and committed to the constitutional order.

So, why Section One? On Graber’s account, Republicans for the most part thought, “why not”?. They believed that the Constitution already gave them the authority to enact all the civil-rights legislation they considered necessary. But they were willing to defer to Ohio Representative John Bingham, who disagreed and was prepared to make very long speeches about it.

Graber adduces overwhelming evidence that. Bingham was indeed an outlier—especially in his insistence that the Civil Rights Act of 1866 needed to be “constitutionalized.” Still, that doesn’t mean that other Republicans considered Section One insignificant.. More importantly, it doesn’t mean that people outside of Congress considered it insignificant—particularly when congressional Republicans centered it in making the case for ratification.

I can understand why Graber relies primarily upon the Congressional Globe. It’s an important source of evidence of how Republicans understood the text, structure, and functions of the Fourteenth Amendment, and a public-facing one. I can’t understand why Graber spends so little time with newspaper coverage of the election campaigns of 1866, which Republicans used to make the case for the Fourteenth Amendment. Informing readers that he will not rely upon “columns from an unknown pundit published by a newspaper that went out of business in 1867” (PTRL xxxiv) is insufficient to justify neglecting, say, the following speech which Speaker of the House Schuyler Colfax delivered on April 6, 1866 in Indianapolis:

The first section of this Constitutional Amendment is very much denounced by our opponents—very much misrepresented and perverted. [Mr. C here read the first section of the proposed amendment.] I stand by every word and letter of it: it’s going to be the gem of the Constitution when it is placed there, as it will be, by this American people. [Applause.] I will tell you why I love it. It is because it is the Declaration of Independence placed immutably and forever in our Constitution.

There is a deeper problem with Graber’s narrow focus on Republican legislators, whom he repeatedly calls “responsible” for the Fourteenth Amendment. When people outside of Congress—particularly people of color—appear in Graber’s narrative, they are (to borrow from a Hamlet motif that Graber runs throughout) somewhere in between Osric and Ophelia. They are instruments of the plot rather than movers. This is in large part a function of the White-elite-centered story that Graber chooses to tell about the Fourteenth Amendment. But no one forced him to tell this one, and the way in which he tells it is descriptively and normatively problematic.

An example: Graber dismisses the Equal Protection Clause as a “vague” (PTRL xxxiii) generality that perhaps only meant something to John Bingham. There was nothing vague about it to Black people who demanded the protection of the laws. It meant protection against whipping, lynching, scalding, and dismemberment, by state and nonstate actors. This understanding of equal protection is all over the Congressional Globe in connection with civil-rights legislation enacted (as Graber acknowledges!) “a mere four years after the Fourteenth Amendment was ratified” (PTRL xxxv),  to the point where it would be tedious to enumerate all the examples. (But some of us have tried our best.). Graber sweeps all of this aside in favor of a 1982 work of normative scholarship that barely touches upon the relevant history and a reminiscence by Republican Senator George Boutwell that is several decades removed from the critical events. That is all we get in support of the claim that “the equal protection of the laws” provided “little assistance to constitutional decision makers.” (PTRL xxxvii).

Now, the normative problem. There is no Fourteenth Amendment without Black-led insurgency against enslavers following the enactment of the Fugitive Slave Act of 1850 or the mass, biracial constitutional politics that built Republican power capable of transforming an enslavers’ fiscal-military state into something resembling (well) a republic. Graber’s attributions of responsibility to elite White Republicans have the appearance of a kind of  epistemic injustice of which originalists have been rightly accused. This appearance is not dispelled by a few citations that underscore Graber’s lack of engagement with Section One scholarship, which is acknowledged only to be largely dismissed as suffering from varying degrees of “disciplinary blindness.” (PTRL xlv). At one point Graber accuses those who claim that “the point of constitutional reform was to constitutionalize the rights former slaves needed to become legal equals in the United States”—which is to say, most contemporary scholars— of “accepting uncritically the Dunning school’s understanding” of Reconstruction. (PTRL xlvii). That’s not just unfair—it’s nasty.

Graber might respond that I’m being unfair. He’s just sharing what he found, and what he found confirms Stephen Griffin’s critique of “optimistic originalism” with happy normative endings. The Fourteenth Amendment was framed by Republicans who with only a handful of exceptions were not racial egalitarians. Even the latter handful believed that racial equality depended upon the hegemony of the Republican Party. Graber is concerned with what is, not what ought to be.

I don’t think you can do without normative theory if you’re going to talk about the Constitution of the United States or how it’s supposed to work. What Robert Cover said of legal interpretation is true of constitutional creation, operation, preservation, transformation: It takes place in a field of pain and death. To invoke the Constitution, to make claims about the Constitution, is in the context of a culture that regards its strictures as something normatively comparable to Scripture a political choice that requires political reflection and justification.  

Graber views the Fourteenth Amendment through a power lens, so I have just the guy for him—an iconoclast for whom power was not merely one constitutionally salient thing among many but everything, metaphysically, politically, and ethically. I have in mind Benedict de Spinoza, who used the text and history of the Hebrew Scriptures to dispel disempowering superstitions which promoted elite domination and to make the case for empowering republicanism.

Spinoza did not, of course, use the word “power,” and English translations of his Latin can obscure important distinctions by conflating different phenomena. There are two words that are generally translated as “power”: Potentia and potestas. Potentia refers to the concrete capacity to produce effects—that is, power to. Potestas refers to formal entitlement or authority, and is associated with hierarchical relationships—that is, power over. Spinoza contended that state potestas was justified to the precise extent that it was used to build good potentia—that it increased the ability of all members of the popular multitudo to participate in governance, establish control over the conditions of their lives, and contest efforts to dominate them. Agonistic, conflictual democracy was both a means and an end to making stable joy as accessible as possible to as many people as possible.  

Spinoza chose the Hebrew Scriptures as a means of building good potentia because he considered that he had no choice under the political circumstances. They were part of the Dutch constitutional order. They did not contain anything true that could not be discerned through rational inquiry, and they contained a great deal that was false. The prophets didn’t have any theological insight; they had extraordinarily vivid imaginations, and imagination is an unreliable source of information. There were no miracles, in the sense of deliberate divine interventions in the natural order. God does not command, is not jealous, does not consider human beings exceptional (or indeed “consider” anything at all), and does not promise us eternal bliss or punishment in reward for obedience.

But reason does not reign over political life. The Scriptures gripped the imagination of the Dutch multitudo, often for ill. Spinoza sought to make the best of a bad hand. Every word of the story he told about the rise and fall of the Hebrew Republic was carefully chosen to build democratic potentia in the present—and the future. I submit that we ought to do the same in engaging with what Aziz Rana calls our creedal constitutionalism—thoughtfully, intentionally, transparently.

Graber’s story is still unfolding. But I can’t resist returning to Hamlet. Graber makes brief reference to Tom Stoppard’s Rosencrantz and Guildenstern Are Dead, a play that revolves entirely around two Hamlet characters—Hamlet’s childhood friends—who have no idea what the story is really about. It’s hard to feel too sorry for Rosencrantz and Guildenstern, who are doing the bidding of Claudius. But suffice to say that we don’t want to end up in their shoes. If John Bingham isn’t the main character in the story of the Fourteenth Amendment we ought to tell, neither is the entire chorus of Republicans on whom Graber focuses his attention. Indeed, there’s not just one story to tell about this exercise of constitutional power. 

PTRL deserves praise, not only for its general call for more attention from constitutional scholars to the role of power in constitutional design but for its careful account of how the Fourteenth Amendment institutionalized power—through means that have been hiding in plain sight! But there is more power here than Graber appreciates. The Reconstruction Amendments were downstream of democratic forces of unparalleled magnitude. Those who use them to build power in the present are not in the grips of superstition. They are witnesses to transformative  human potentia.

Evan Bernick is an Associate Professor of Law at Northern Illinois University College of Law. You can reach him by e-mail at 

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