America's Unwritten Constitution: The Precedents and Principles We Live By (15 page)

AND SPEAKING OF THE FOURTEENTH AMENDMENT…
we must recognize that this momentous part of America’s Constitution supplemented and superseded the Founders’ constitutional compromises not only through its text, but also via its deed—via the very process by which it became an amendment. Though hardly unique in this respect, the Fourteenth Amendment provides an especially vivid illustration of the fact that the Constitution’s amendments have at times embodied transformative deeds. These deeds—these post-Founding enactments—are as much a part of America’s unwritten Constitution as are the enactments of the Founders themselves.

But before we can honor the unwritten principles constitutionalized by these amendatory enactments, we must first identify those principles—and to do that we must once again dive into some fascinating facts beyond but adjacent to the official text.

WHEN THE STATE GOVERNMENTS
that had forcibly attempted to secede in 1860–1861 professed a willingness to return to the fold at war’s end in 1865, a justifiably wary Congress declined to seat the ex-Confederate states’ federal representatives and senators until Congress could assure itself that the new South was now playing and would continue to play by the Constitution’s rules. The old South had not played by the rules—hence “the recent unpleasantness” that had left more than a half million dead. In the First Reconstruction Act, Congress outlined what the ex-Confederate states should do to regain admission to Congress. The act became law on March 2, 1867, and applied to the entire South except Tennessee. (The Volunteer State had been welcomed back to Congress in July 1866, immediately after having voted to ratify the proposed Fourteenth Amendment; no other former rebel state had followed Tennessee’s example.)
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Three interrelated instructions formed the foundation of the First Reconstruction Act. First, each ex-Confederate state should adopt a new state constitution via an electoral process enfranchising virtually all adult male residents, regardless of race. Second, each new state constitution should guarantee a right to vote in ordinary elections to this same broad swath of adult male residents. Third—and most important for our purposes—the new governments elected under the new state constitutions should ratify the Fourteenth Amendment, which Congress had proposed in June 1866, and which had already been ratified by three-fourths of the loyal states plus Tennessee.
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How should we understand the legal status of this landmark statute? To the strict textualist, the First Reconstruction Act lies entirely outside the written Constitution. Yet surely the act was a critical part of the process by which the Fourteenth Amendment was actually adopted. Without this landmark statute, it is doubtful that ex-Confederate states would have promised and practiced universal male suffrage; and without this broad suffrage base, it is doubtful that these states would have ever agreed to ratify the Fourteenth Amendment (or, for that matter, the later Fifteenth Amendment guaranteeing race-blind suffrage in every state).

More to the point, the First Reconstruction Act bluntly directed ex-Confederate states to ratify the Fourteenth Amendment with all deliberate speed. In much the same way that free speech and majority rule were
the basic protocols and processes that brought forth the original Constitution in the 1780s, so the Reconstruction Act’s directive to the former Confederacy was the basic legal matrix that brought forth the Fourteenth Amendment. The act was the amendment’s legal birth canal, so to speak. Properly understood, the statute was thus part of the public meaning of that amendment as an embodied enactment—an 1860s re-do of the 1780s “We…do.”

From this enactment perspective, Americans in the 1860s should be understood as having given birth to a new constitutional principle, albeit one that did not explicitly appear in the Fourteenth Amendment’s text. Under this new unwritten principle, the federal government would properly enjoy sweeping authority to hold state governments to the highest contemporary standards of democratic inclusiveness.

ALTHOUGH THIS IS NOT THE ONLY
possible interpretation of the Fourteenth Amendment enactment process, it is more explanatory than alternative accounts, which are on one side too complacent and on the other too eccentric.

In a too-complacent view, the Fourteenth Amendment’s enactment created no new constitutional norm, because the Founders themselves had already provided the federal government with authority to hold states to proper democratic standards. The Constitution’s Article I, section 5, allowed each house of Congress to judge the elections of its members, and Article IV instructed the federal government to “guarantee to every State in this Union a Republican Form of Government.” Together, these clauses empowered each house to refuse to seat a self-proclaimed representative or senator if the relevant house deemed the underlying election constitutionally inadequate under correct principles of republican government.

True enough, but many framers would have been startled to learn that Congress could use these clauses to require states to enfranchise blacks—indeed, illiterate, unpropertied ex-slaves, at that! State franchise law, as defined by state constitutions and traditional state practice, underpinned the federal system as originally designed. Antebellum Congresses did not rest on a nationally defined suffrage base but simply piggybacked on state suffrage law. The federal House of Representatives was chosen by those
persons in each state who were eligible under state law to vote for state assemblies. Likewise, the United States Senate was chosen by state legislatures that ultimately derived their powers from voting rules established by state law.

At the Founding, the Article IV republican-government clause could plausibly be read as reinforcing this state-law bedrock, not undermining it: The federal government would simply guarantee existing state constitutional practices against the possibility of unrepublican amendment or violent overthrow—as might happen, for example, if a governor’s minions revised the state constitution to create a hereditary dictatorship, or if a state military cabal wrested control from duly elected civilian authorities. On this narrow view of Article IV, the federal government could prevent a state from backsliding whenever agitators tried to transform an existing republican regime into an unrepublican one, but federal authorities could not oblige a state to make any great democratic leaps forward. So long as states faithfully followed the basic structural practices in place in 1787, federal officials would not interfere.

In the 1780s and in every decade thereafter, a significant number of states had denied free blacks the vote. Many Founding-era states also had property requirements for voting. Before the Civil War, some states began to experiment with franchise-restricting literacy tests. By what right, asked President Andrew Johnson and his conservative allies in the mid-1860s, did the Reconstruction Congress claim authority to impose on the ex-Confederate states an utterly novel federal requirement of race-blind universal male suffrage? Would the state ratifying conventions in 1787–1788—especially in the South—have agreed to the federal Constitution if ratifiers had clearly understood that Congress could radically redefine the most basic and jealously protected political structures of state constitutions?

In truth, the enactment of the Fourteenth Amendment pivoted on a fresh interpretation of the republican-government clause, an interpretation that had not been firmly established by the Founding Fathers. The too-complacent view misses the key fact that a new principle of broad national control over undemocratic state franchise law was born as part of the Fourteenth Amendment’s enactment process.

Enter the eccentrics, who claim that because the Fourteenth Amendment
was ratified by dint of a congressional statute that went beyond the Constitution as understood by the framers, the amendment was never properly adopted. The supposed Fourteenth Amendment is therefore a nullity!
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To be clear: No justice on the current Court takes this position. Nor has any justice in history ever publicly written anything of the sort in
United States Reports
, the official compilation of Supreme Court opinions. Nor has any president proclaimed this view, if we put aside the curious case of Andrew Johnson, who said all manner of things while the amendment was pending, but ultimately allowed his own secretary of state to proclaim the amendment validly enacted. Nor does any mainstream constitutional scholar today deny the Fourteenth Amendment’s legal validity.
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This universal consensus reigns for a reason. Without this consensus, the project of American constitutionalism as we know it might well implode. That project revolves around a canonical text—the written Constitution—that all (noneccentric) citizens and public servants acknowledge as the official supreme law of the land. Though interpreters may sharply disagree about the document’s meaning, all point to the same basic text, which provides firm common ground for constitutional conversation and contestation. This text—with countless millions of copies in circulation, all of which include the words of the Fourteenth Amendment—is the national focal point, the common denominator for all constitutionalists, whether Democrat or Republican, liberal or conservative, private citizen or public servant.

Granted, some small imprecision at the outer edges of the text would not doom the project of written constitutionalism. Disagreement about whether the words “our Lord” are part of the canonical legal text or merely part of its ceremonial parchment counterpart does not threaten to unravel the entire constitutional fabric. The words at issue are peripheral in every respect: The attestation clause as written does not claim to have any enforceable legal bite, the Supreme Court has never quoted this clause for any purpose whatsoever, and many constitutional experts have literally never given the clause a moment’s thought.

By contrast, the Fourteenth Amendment stands at the very center of the Constitution, both textually and functionally. In 1955, Justice Felix
Frankfurter remarked that “claims under the Fourteenth Amendment” were “probably the largest source of the Court’s business.”
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Since then, the practical significance of the amendment has only grown—indeed, skyrocketed. The amendment was the vehicle by which the post-1955 Supreme Court eventually (and correctly) came to apply virtually all the provisions of the original Bill of Rights against state and local governments. Today the lion’s share of “Bill of Rights” cases litigated in courts are actually Fourteenth Amendment cases. The Fourteenth Amendment was also the truest source of congressional power to adopt sweeping civil rights laws in the late twentieth century—laws that changed the course of world history.

Long before the Warren Court revolution and the Second Reconstruction of the 1960s, the validity of the Fourteenth Amendment was definitively established. All three branches of the federal government pledged allegiance to the Fourteenth Amendment in the late 1860s and early 1870s, as did the citizenry and state governments at the time. Ever since, the amendment’s legality has been a basic premise of the American constitutional system. For example, the federal Income Tax Amendment was explicitly proposed by Congress in 1909 and ratified by state legislatures by 1913 as “Article XVI” of the Constitution, plainly indicating that “Article XIV” and “Article XV”—that is, the Fourteenth and Fifteenth Amendments—were already valid parts of the Constitution.

To understand the stakes here, recall that the Civil Rights Act and the Voting Rights Act of the 1960s were notable efforts to enforce the Fourteenth and Fifteenth Amendments. Without the epic changes wrought by these laws, Americans in 2008 would never have elected Barack Obama president. If these amendments are truly invalid, then presumably the Second Reconstruction of the late twentieth century was likewise invalid and the results of that Reconstruction are also illegitimate. On this view, the very status of Barack Obama as president would be constitutionally dubious.

Only cranks think this way.

The eccentrics fail to understand that the Reconstruction generation faithfully interpreted the Founders’ project, even as Reconstructors went beyond various specific expectations that were widespread in the late 1780s. True, the First Reconstruction Act did supplement the Founders’ rules.
But it did not supplant them. Rather, it interpreted and extended them in the unique context of a Civil War that, constitutionally, should never have happened. (The original Constitution emphatically denied state authority to unilaterally secede.) To the extent that Reconstructors stretched the text of various Founding-era clauses, these men did so in order to make the best sense of—and ultimately to preserve—the document as a whole.

Whatever various framers may have expected or predicted, the
text
of the republican-government clause did not unambiguously limit the federal role to merely policing against state retrogression. The leading modern book on the clause reports that some Founders “expected the concept of republican government to change over time, hopefully perfecting the experiment begun by the Revolution.”
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In any event, the southern states
had
clearly regressed between 1789 and 1866. In 1789, antislavery speech was broadly allowed, whereas in the late antebellum period it was officially outlawed and/or suppressed by massive extralegal violence in much of the South, where the Republican Party had in effect been criminalized in the 1850s. In 1860, Lincoln received not a single popular vote—not one!—south of Virginia. One does not find such perfectly one-sided election returns or such savagely skewed pubic debates in true republics. Prior to the Founding, no large set of colonial or state officials had ever taken up arms to assail a freely elected government. In the years just before Reconstruction, a vast conspiracy of southern officials calling itself “the Confederacy” had done just that in arrogant defiance of the free-election essence of republican government. In 1789, southern states did not lag miles behind most northern states in the percentage of free males eligible to vote. By 1866, a yawning chasm had abruptly opened up between the ex-gray states and most true-blue states. In many a northern state, the law circa 1866 barred only a tiny proportion of free adult males, often less than 3 percent, from voting. In the ex-confederacy before the First Reconstruction Act, comparable disenfranchisement rates ranged from about 25 percent to over 50 percent—roughly ten to twenty times the typical northern rate.
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