Preview the Contents for March 2020

Preview the Contents for March 2020

Volume 10, Number 1
March 2020

CRACKS IN THE FOUNDATION:

THE FOURTEENTH AMENDMENT AND ITS LIMITS
A SPECIAL ISSUE

Guest Editor’s Note

Michael T. Bernath and M. Scott Heerman

Cracks in the Foundation: The Fourteenth Amendment and Its Limits

ARTICLES

Lisset Marie Pino and John Fabian Witt

The Fourteenth Amendment as an Ending: Constitutional Beginnings and the Demise of the War Power

Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War.  Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment.  But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending.  In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery.  This crucial authority was the federal government’s war power.  Stories of vindication and of new beginnings are not wrong.  But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace.  The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.

Keywords: Fourteenth Amendment, war power, military necessity, reconstruction, civil war, Freedmen’s Bureau, military commissions, military withdrawal, grasp of war

Stephen Kantrowitz

White Supremacy, Settler Colonialism, and the Two Citizenships of the Fourteenth Amendment

The Civil War era’s debates over citizenship are conventionally understood as having revolved around the status of emancipated African Americans. But they were also rooted in decades of U.S. policy with regard to Native Americans. In Indian Country, citizenship’s intended purpose was to dissolve Native political sovereignty and to make Indian lands available for sale to white settlers. These two histories of citizenship existed in dynamic tension and were occasionally forced together, as in the Civil Rights Act of 1866 and the Fourteenth Amendment. This essay traces Civil War-era policymakers’ parallel debates over African American and Native American citizenship. Exploring those debates in particular through the thinking of conservative Democrat Allen Thurman, it suggests that while white supremacy came under sustained attack during this era, settler-colonialism—the ideology and practice of replacing Native with settler populations—did not.

Keywords: citizenship, Fourteenth Amendment, Civil Rights Act of 1866, Native Americans, settler-colonialism, white supremacy, Allen Thurman

Evelyn Atkinson

Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment

This article examines the little-known case In re Tiburcio Parrott (1880), in which the federal court extended Fourteenth Amendment rights to corporations for the first time.  It reveals that an analogy between Chinese immigrants and corporate shareholders was the basis for the court’s reasoning.  This Article explores the social and political context of the movements for Chinese exclusion and corporate regulation in 1870s California to explain this analogy, revealing that Chinese immigrants and corporations were seen as intertwined threats that challenged free white labor and threatened popular democracy.  The Article focuses on the dueling interpretations of “equal treatment” and “free labor” at play in this conflict.  It shows how arguments by corporate lawyers, who represented both corporate clients and Chinese immigrants, and the support of sympathetic judges, lay the foundation for an expansive interpretation of the Fourteenth Amendment that eventually was endorsed by the U.S. Supreme Court.

Keywords: corporate personhood, Fourteenth Amendment, equal protection, Chinese exclusion, free labor

Christopher W. Schmidt

The Fourteenth Amendment and the Transformation of Civil Rights

This article traces two genealogies of civil rights, one of a concept, the other a term. At the time of the drafting and ratification of the Fourteenth Amendment, the term civil rights became associated with a concept of rights that had featured in antebel­lum struggles over the place of free people of color in American society. Republican lawmakers turned to this newly essential term of racial governance to make the case that freedom required government protect certain fundamental rights—such as the right to make contracts, hold property, and testify in court— but that beyond these rights racial discrimination might be permissible. After Reconstruction, civil rights took on different connotations, and by the mid-twentieth century the term became synonymous with racial antidiscrimination policy generally. Yet the Reconstruction concept of civil rights retained a vestigial presence in Fourteenth Amendment doctrine. Twentieth-century jurists revived this partially forgotten concept for the same reasons it had resonated during Reconstruction: because it justified expanded legal protections against racial discrimination while simulta­neously justifying limits on those protections. Tracing the history of the two gene­alogies of civil rights offers a new perspective on the legacy of Reconstruction on modern American law.

Keywords: Fourteenth Amendment, civil rights, racial discrimination, antidiscrimination

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