The 14th Amendment Was Intended to Achieve Racial Justice — And We Must Keep It That Way

Few times in recent memory have demanded a more careful examination of our nation's history than now — the year we celebrate the 150th anniversary of the 14th Amendment’s passage. At a time when the Trump administration is throwing asylum seekers in jail without due process and undermining efforts to desegregate schools, it is critical to remember that the “pervading purpose” of the 14th Amendment was to eliminate the oppression of historically subjugated minorities and to provide equality of opportunity. 

The amendment's ratification on July 9, 1868, shortly after African-Americans were emancipated from slavery, represented a turning point in the country’s history. Its passage was an effort to provide substance to the Declaration of Independence’s promises of freedom and equality, which from the beginning had not applied to significant parts of the population, including Black people and women. And though those promises were continually reneged upon, the 14th Amendment remained a source of aspiration and hope. 

Although the 14th Amendment is frequently invoked now, particularly by conservative judges and commentators, to attack affirmative action and efforts to desegregate schools under the guise of “colorblindness,” the Fourteenth Amendment was never a colorblind document. The amendment was enacted specifically for purposes of assisting newly freed Black people. Although the 13th Amendment ended slavery, it left uncertain the status of those who had been kept in bondage. The infamous Dred Scott case had held that Blacks had no rights that whites were bound to respect and denied them citizenship. The 14th Amendment was necessary to make clear that Black people, as well as anyone born in the country or naturalized, were American citizens. 

The Trump administration has made loud and clear its disdain for any programs that consider race in college admissions, which betrays the 14th Amendment’s unambiguous history as a statute offering Black people protection in areas replete with discrimination. The 14th Amendment was enacted with the intent to support a series of race-conscious programs that were created at the time to aid Blacks newly emancipated by the 13th Amendment. A series of programs such as the Freedman’s Bureau, special assistance for Black Civil War veterans, and special relief to Blacks in the District of Columbia were enacted in the period following the Civil War in the face of opposition arguing that the programs would make “a distinction on account of color between the two races.” Vetoes of the Freedman’s Bureau Act were overridden twice by Congress and the 14th Amendment was enacted in the midst of the discussions regarding these acts. 

The road to equality by way of the 14th Amendment was not always an easy one. Some of the most ignoble policies and practices, such as forced racial segregation in public schools and public spaces and the incarceration of Japanese-Americans and people of Japanese ancestry during World War II, were found to be consistent with the Constitution. And, as time has passed, its initial emphasis on addressing the rights of freed Black people has shifted substantially. 

Despite the setbacks, the 14th Amendment has been vital in protecting the equal protection and due process rights of a greater number of people. Whether assuring counsel and a bias-free jury, working in conjunction with the First Amendment to assure freedom of worship, guaranteeing the rights of same-sex couples to marry, protecting the right to vote, supporting the right of transgender students to receive access to education, prohibiting racial segregation in schools, ending restrictions against mixed-race marriages, supporting the right of women to have access to birth control and abortion, or protecting the rights of immigrants, the 14th Amendment has been a powerful tool in the protection of the rights and liberties of all Americans. 

But the amendments’ 150th anniversary is not solely an occasion to celebrate. Rights won, even after long protracted struggles, can be lost. In the current political climate — one in which efforts are being made to limit the enforcement actions of agencies and departments which once sought to strenuously enforce the 14th Amendment and one in which judges are selected for their antipathy to rights secured on behalf of people of color and other vulnerable populations — the 14th Amendment faces the realistic possibility of being stripped of its authority and its ability to stand as a bulwark against oppression. 

We cannot take the 14th Amendment for granted. Instead, it’s imperative that we use every means at our disposal to assure that the amendment continues to serve as a path to freedom and full equality for those who need it most. 

View comments (7)
Read the Terms of Use

Tyrone

I needs my affirmative action

Anonymous

Sorry but the 14th Amendment affirmed that freed slaves were in fact US citizens. As a results they were entitled to the Rights as found on the Bill of Rights. It has nothing to do with desegregation, transgender, and any of the other things you are tossing around. The rights you are speaking about are what comprise the Bill of Rights. Try being honest instead of trying to rewrite a false narrative.

Anonymous

The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used -- and frequently litigated -- phrase in the amendment is "equal protection of the laws", which figures prominently in a wide variety of landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender discrimination), and University of California v. Bakke (racial quotas in education).
law.cornell.edu

Dr. Timothy Leary

"I don't care what the 14th Amendment says, I am not going to kiss someones --- just because their skin is the same color as ----": J. Edgar Hoover circa 1940.

Anonymous

One way for the ACLU to protect federal statutes, that define and codify the 14th Amendment legal boundaries into law, would be to expand the protected classes of "The Civil Rights Act" to include both LGBT rights and political speech. The latter category would protect Americans of both parties.

Protecting political speech is vitally needed. Today we have government agencies and private contractors trolling Facebook and social media trying to equate legal 1st Amendment exercises as essentially probable cause to subvert 4th Amendment restraints (ex: Black Lives Matters, Tea Party, etc).

For example: if you are harassed by local police following a post on ACLU.org or Facebook, federal prosecutors have a hard time criminally prosecuting those oath-sworn officers or federal agents. If The Civil Rights Act included "political speech" the DOJ's Office of Civil Rights would be mandated, by law, to protect political speech.

Any minority group needs outside "allies" to gain representation in Congress and state legislatures. Sometimes those allies create a majority voting block (ex: LGBT rights). The political speech of those vital allies is NOT protected by The Civil Rights Act, leaving much needed allies without protection. Unscrupulous agency leaders can exploit this loophole in law (ex: CoinTelPro tactics used by racist leaders at the FBI from the 1950's to 1970's). Correcting and modernizing The Civil Rights Act should be a top priority for the ACLU.

Anonymous

If the purpose of the 14th Amendment was to acheive equality then it was a miserable failure. It's been in place for 150 years and blacks still need affirmative action. Equality not acheived.

Anonymous

BLACK LIVES MATTERED X2 Second Part After the Emergency Session of Congress was held and passed the 14th Amendment to give a ONE TIME GRANT of citizenship, to save the US Freedmen Blacks from genocide, the Republicans in the Deep South, where the armed Democrats were massacring Blacks wholesale, formed the NRA who bought guns & ammo, armed and trained the Freedmen Blacks to defend themselves, Twice the Republicans during Reconstruction save the blacks as BLACK LIVES MATTERED THEN AND NOW FOR CONSERVATIVE REPUBLICANS.

Stay Informed