July 9, 2025

On July 9, 1868, Americans changed the U.S. Constitution for the fourteenth time, adapting our foundational document to construct a new nation without systematic Black enslavement.

In 1865 the Thirteenth Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after actor John Wilkes Booth murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States.

Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.

Congress rejected Johnson’s plan for Reconstruction.

But then congressmen had to come up with their own. After months of hearings and debate, they proposed amending the Constitution to settle the outstanding questions of the war. Chief among these was how to protect the rights of Black Americans in states where they could neither vote nor testify in court or sit on a jury to protect their own interests.

Congress’s solution was the Fourteenth Amendment.

It took on the infamous 1857 Dred Scott v. Sandford decision declaring that Black men "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.”

The Fourteenth Amendment provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history: it dramatically circumscribed Congress’s power.

The Dred Scott decision declared that democracy was created at the state level, by those people in a state who were allowed to vote. In 1857 this meant white men, almost exclusively. If those people voted to do something widely unpopular—like adopting human enslavement, for example—they had the right to do so. People like Abraham Lincoln pointed out that such domination by states would eventually mean that an unpopular minority could take over the national government, forcing their ideas on everyone else, but defenders of states’ rights stood firm.

And so the Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it said. And then it went on to say that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The principles behind the Fourteenth Amendment were behind the 1870 creation of the Department of Justice, whose first job was to bring down the Ku Klux Klan terrorists in the South.

Those same principles took on profound national significance in the post–World War II era, when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the Brown v. Board of Education decision outlawing segregation in public schools, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. They began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Bork, an originalist who had called for the rollback of the Supreme Court’s civil rights decisions, for a seat on that court.

Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the importance of the Fourteenth Amendment to equality: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

Kennedy’s comments foreshadowed the world advanced by today’s MAGA Republicans. In 2022 the Supreme Court, stacked as it is with right-wing justices, overturned the federal protection of abortion rights provided in the 1973 Roe v. Wade decision and sent the question of abortion back to the states, many of which promptly banned the procedure.

When the court overturned the federal protection of abortion rights, Justice Clarence Thomas argued that federal protections for access to birth control and same-sex marriage should also be reexamined. In 2024, President Donald Trump suggested he would be open to letting states decide whether to restrict access to birth control, walking his statement back after a ferocious backlash.

Justice Samuel Alito has joined Thomas in attacking the Obergefell v. Hodges decision that provides federal protection for same-sex marriage, claiming that right, too, ought to be left up to voters in the states, even as Republican-dominated states are passing laws to limit who can vote.

Not only have today’s Republicans launched an attack on the Fourteenth Amendment’s requirement that the federal government protect Americans against discrimination in the states, President Donald Trump has launched an assault on the birthright citizenship that is the centerpiece of the amendment.

That section of the amendment— the first section— acknowledges that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens,” who enjoy the same rights, and that no state can take those rights away without due process of law.

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Notes:

https://en.wikisource.org/wiki/Robert_Bork%27s_America

https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

https://www.cnn.com/2020/10/05/politics/clarence-thomas-samuel-alito

https://www.cnn.com/2025/06/25/politics/obergefell-anniversary-supreme-court-lgbtq-rights

https://www.nytimes.com/2024/05/21/us/politics/trump-birth-control-restrictions.html

https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/