Last week, the University of South Carolina and Historic Columbia hosted a symposium on the legacy of the Fourteenth Amendment and civil rights. It comes at a particularly opportune time to think about citizenship and race in America—debates about the actions of police officers with African American men in a Starbucks and an African American woman at a Waffle House have brought back to the fore questions about race and policing in America. The various speakers at the event, including Randall Kennedy, David Levering Lewis, and Margaret Burnham (among an overall illustrious group of scholars and lawyers) emphasized the importance of the Fourteenth Amendment to civil rights actions in the 1860s and 1960s. As much as the media has talked about 1968 a great deal this year, much of the American context for that tumultuous year only makes sense when taking into consideration the long shadow of the Fourteenth Amendment on American history.
As Kennedy and other speakers at the symposium pointed out, the Civil Rights Act of 1964 succeeded not because it invoked the 14th Amendment but because it utilized the Interstate Commerce Clause. The amendment’s original purpose—to further buttress the civil rights of African Americans—was curtailed in the 1880s due to 1883’s Civil Rights Cases. De-fanging the 14th Amendment by arguing that anti-discrimination laws could not be enforced by the federal government, only the states, the Civil Rights Cases made the 1875 Civil Rights Act unconstitutional.[1] This series of cases came in the 20th anniversary year of the Emancipation Proclamation. The year became a rumination among African American intellectuals about how far Black Americans had come in twenty years, and how quickly so many of those gains were being turned back. Reconstruction came to a crashing halt in the South throughout the 1870s. South Carolina, the state with the grandest experiment during the Reconstruction period (a genuinely biracial government), was finally “redeemed” by Wade Hampton and the Democrats in 1876-77. These actions shaped how African American intellectuals viewed the South and the nation.[2]
Yet, the year 1868 contained an incredible amount of hope for the future. The passage of the 14th amendment, along with the passage of South Carolina’s Constitution of 1868, laid the groundwork for Americans rethinking citizenship, race, and the idea of being an America. While much of this was dashed within ten years, the fact that there was a moment America—fitfully, fleetingly—tried to be its best as a nation, remained in the memory of many Americans for decades to come. Bruce Baker’s What Reconstruction Meant does a good job detailing how various groups of Americans thought about the Reconstruction period. While many American scholars are familiar with Civil War memory studies, more work remains to be done on memory of the Reconstruction era.[3]
W.E.B. Du Bois—who was born in 1868—noted the significance of the 14th amendment in a speech given in 1947. For him, the amendment was the lodestar for civil rights legislation in the late 19th century. He argued that the 14th amendment crafted a “new relation of citizens to the federal government.” The only way, in Du Bois’ opinion, to save American democracy in the 20th century was the “restoration of the 14th amendment.” We should keep in mind the importance of the 14th amendment to thinkers such as Du Bois who wrestled with the contradictions of American democracy.
[1] Carol Anderson, White Rage: The Unspoken Truth of Our Racial Divide. (New York: Bloomsbury, 2017), pp. 32-38 make clear that the Supreme Court in the 1870s and 1880s did severe damage to civil rights reform in the United States, setting the stage for Plessy v. Ferguson in 1896.
[2] It is worth noting that African American political power in the South—especially South Carolina—did not abruptly end in 1877. Jackson Lears, in Rebirth of a Nation, noted Thomas Wentworth Higginson’s travels in the South in 1878, where he noted the continued presence of African American police officers and militia in the state. Rebirth of a Nation, p. 96-97.
[3] Not that we’re done with Civil War memory—on the contrary, there’s still plenty to mine from that rich area of study.
0