A Constitutional Umbrella for a Progressive Coalition
Back in 2015, I proposed a “Declaration of Rights And Grievances” [link is to TOP] for the Progressive Movement, having in mind the Declarations of earlier American political movements. Here's the Constitutional basis for that proposal, and how I believe it can unify our movement.
The core argument of the Declaration which I drafted was that Caucasian, male, Christian, Heterosexual, Cisgender, wealthy and corporate “persons” still enjoyed greater liberty, protection, political influence, opportunity, deference and respect than other Americans, so the current political order had failed to meet its Constitutional obligation to provide equal protection to all of its citizens, and political action was necessary to correct that.
I had in mind the 14th Amendment to the U. S. Constitution. Naturally, Conservatives object to this interpretation. Allow me to address some of their arguments, and explain why I believe the 14th Amendment provides a Constitutional umbrella for a coalition of Progressives, one that covers all Progressives, regardless of which disadvantaged group or groups they identify with – their “political identity,” if you will.
The 14th Amendment was approved by Congress in 1866 and became part of the Constitution in 1868. Its first paragraph states:
“Section 1. All 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. 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.”
[source] [emphasis added]
What does it mean, that no State shall deny any person within its jurisdiction the “equal protection of the laws?”
Conservatives have argued for a narrow interpretation of this phrase. For example, a writer for the Federalist Society has argued that:
- The phrase “equal protection of the laws” means only that all persons shall be tried and punished equally before courts of law, and nothing more.
- Yes, “due process” is mentioned earlier in the Amendment, but only to say that no persons shall be deprived of due process; “equal protection of the laws” means that due process shall be provided equally, as well.
- [At the time of it’s passage,] nobody thought it was directed against sex discrimination, segregation, elections, marriage or local civil law.
But there are a number of facts which argue against such a narrow interpretation of the clause. Consider the following:
- The 14th Amendment was researched, drafted and debated by a Joint Committee on Reconstruction , beginning in December 1865 (the 39th Congress). In May 1866 the Committee presented a final version of the proposed Amendment to both houses of Congress. The Committee later published a report which included the testimonies of numerous witnesses questioned by members of the Committee from January to May of 1866. [source] The questions posed by the Committee members indicate that they wanted to know, among other things, how Union loyalists were treated in those States, and whether Blacks were being treated fairly and paid reasonably. Many of the witnesses reportedly answered that Blacks and Union loyalists were being mistreated: Blacks were being subjected to violence, lower pay, wage theft and denial of employment in some quarters, and some former rebels made it more difficult to educate Black children; Union loyalists were allegedly subjected to threats, violence, rent increases, refusal to do business and other practices which made them feel like they might have to leave. This was denial of equal protection, not just on the basis of race, and not just with regard to “due process.” The Committee responsible for the 14th Amendment was clearly interested in addressing social, economic and political discrimination, or they would not have inquired about these conditions.*
- Committee-member Jacob Howard presented the final version of the 14th Amendment in the Senate during the 39th Congress (1886). He stated the following in his presentation:
“I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.”
What were the “rights and privileges” covered by the Amendment? Jacob Howard described them as the personal rights guaranteed by the second section of the fourth Article of the Constitution, by the Constitution’s first eight Amendments, and those “privileges and immunities” mentioned by Justice Washington in :
“...Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole….”
- When the final version of the Amendment was debated in the House (May 8, 1866), an opponent of the Amendment, Representative Benjamin Boyer, asserted that “The first section embodies the principles of the civil rights bill, and is intended to secure ultimately, and to some extent indirectly, the political equality of the negro race.” [source]
- During the 40th Congress (1869), another member of the Joint Committee on Reconstruction, George Boutwell, offered his interpretation of Section 1 of the 14th Amendment:
"...that provision of the Constitution is for all the people or it is for none of them. Under that Constitution we cannot select and say that a man born in this country shall be entitled to certain privileges as a citizen to which a man born elsewhere and naturalized shall not be entitled. We cannot say that a white citizen shall enjoy privileges which are denied to a black citizen or to a naturalized citizen, white or black.”
- During the 42nd Congress (1871), the primary author of the Section 1, Committee-member John Bingham specifically addressed the meaning of the phrase “nor deny to any person within its jurisdiction the equal protection of the laws:”
“...it means that no State shall deny to any person within its jurisdiction the equal protection of the Constitution of the United States, as that Constitution is the supreme law of the land, and, of course, that no State should deny to any such person any of the rights which it guarantees to all men, nor should any State deny such person any right secured to him either by the laws and treaties of the United States or of such State.”
Other members of Congress subsequently gave speeches indicating that they, too, understood Section 1 of the Amendment to have implications beyond a mere requirement that “due process” be provided equally:
- In 1871, Representative Samuel Shellabarger asserted that the phrase requiring “equal protection of the laws” meant that “The laws must be, first, equal, in not abridging rights; and second, the States shall equally protect, under equal laws, all persons in them.” [source] Shellabarger had been a Representative during the 39th Congress, and he had voted in favor of the 14th Amendment. [source]
- Representative James Garfield also spoke about the phrase requiring “equal protection of the laws” in 1871. To Garfield, this is what the phrase meant:
“Taken in connection with the other clauses of this section, it restrains the States from making or enforcing laws which are not on their face and in their provisions of equal application to all the citizens of the State...The laws must not only be equal on their face, but they must be so administered that equal protection under them shall not be denied to any class of citizens, either by the courts or the executive officers of the States.”
- In 1874, Representative William Lawrence had this to say about the phrase “equal protection of the laws:"
“If a doubt could arise as to how these words are to be interpreted, if any question could exist as to their construction, let it be remembered they are provisions in favor of human rights, and all such are to be liberally construed to effectuate their object. The object of this provision is to make all men equal before the law. If a State permits inequality in rights to be created or meted out by citizens or corporations enjoying its protection it denies the equal protection of the laws. What the State permits by its sanction, having the power to prohibit, it does in effect itself.”
[source] Lawrence had also been a Representative during the 39th Congress, but he didn’t vote on the 14th Amendment. A colleague said that Lawrence was absent due to the death of his father, but would have voted “ay.” [source]
In fairness to the writer for the Federalist Society, there were members of Congress who expressed a more limited view of the 14th Amendment. There were even other members of Congress who complained that the 14th Amendment was taking away States’ Rights. My point here is that there were members of Congress who did believe that the 14th Amendment was meant to address perceived and anticipated discrimination among citizens with regard to their civil and legal rights.
As a matter of fact, the 14th Amendment was not just an Act of Congress; to take effect, it had to be ratified by voters in the States. What did voters understand it to mean? As you can imagine, newspapers of the day presented the Amendment in many different ways to their readers. For example, the Weekly North-Carolina Standard, of Raleigh, N.C., Wednesday, October 10, 1866 [right column, center] informed prospective voters:
“...The provisions of this amendment are as follows:
‘1. That all persons born or naturalized in the United States are citizens thereof and of the States in which they reside, and on a footing of equality in regard to their civil rights.’
...We have tried to state the provisions of this amendment so that the people may understand them….”
And how has the U.S. Supreme Court interpreted the clause requiring “equal protection of the laws?”
“…it is not difficult to give a meaning to this clause [“equal protection of the laws”]. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.”
Which is to say, the same provision could be applied to other races, if a “strong case” could be made for discrimination “with gross injustice and hardship against them as a class.”
Later, in (1896), the Supreme Court granted that “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law.” However, the majority of the court concluded that “Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race.” Justice Harlan disagreed on this point, declaring in his Dissent that,
“...in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens....
“But it seems that we have yet, in some of the States, a dominant race -- a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race.”
Justice Harlan’s interpretation would later become the majority opinion of Supreme Court Justices. In (1954), all the Justices agreed that “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group,” and such a policy failed to provide “the equal protection of the laws guaranteed by the Fourteenth Amendment.” In (1971), the Court concluded that a State law which arbitrarily favored males over females was in violation of the Equal Protection Clause of the Fourteenth Amendment. And in (1996) and (2015), majorities on the Court held that State Constitutions which expressly denied protection on the grounds of sexual orientation were in violation of the Equal Protection Clause of the Fourteenth Amendment.
You can see how, over time, majorities of the Supreme Court Justices have concluded that this clause has applications beyond equality of due process.
I think at least one of the Constitution’s framers would approve. In “Federalist No. 45,” James Madison made the following remark concerning the grand purpose of the U. S. Constitution:**
“It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.”
I take this to mean that the Constitution was intended to address the general welfare of living citizens and residents, not just the desires of those who wrote it. The Constitution is meaningless to those who’ve passed on. It can only affect the general welfare of the living. And 14th Amendment provides a Constitutional umbrella under which today’s Progressives can unite, whatever their personal issues and identities, to secure the general welfare and equal protection of living Americans.*** To quote one of the Slaughterhouse dissenters, Justice Swayne:
"The equal protection of the laws" places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness...The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men…It is necessary to enable the government of the nation to secure to everyone within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact all are entitled to enjoy. Without such authority, any government claiming to be national is glaringly defective.” April 14, 1873
* Note to historians and social scientists: the testimonies in the Report of the Joint Committee on Reconstruction provide fascinating first-hand accounts of social conflict and adaptation in the former Confederacy in the 12 months following the collapse of its government. The witnesses included Blacks, Union officers, former Confederates, Northern investors (aka “Carpetbaggers”), Union sympathizers (aka “Scalawags”), preachers, reporters, Southern politicians, and Southern businessmen.
** Madison also addressed, in Federalist No. 45, those who complained about the Federal government treading upon “States’ Rights:”
“...if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? [emphases added]
...“Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”
*** A law professor’s defense for applying the “Reconstruction Amendments” to civil rights can be found here: http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-85-6-Balkin.pdf