Cracks in the Foundation: The Fourteenth Amendment and Its Limits

In March 2018, we convened a conference titled "The Many Fourteenth Amendments" at the University of Miami. The timing was propitious. Not only did 2018 mark the sesquicentennial anniversary of the amendment's ratification but also the issues that would come to define the amendment—birthright citizenship, corporate personhood, equal protection, civil rights, disenfranchisement—were front and center in our daily political lives and the immediate relevance of the gathering was apparent to all. The title and the organization of the conference were designed to emphasize the multiplicity of origins, meanings, and legacies of this revolutionary amendment. Four key themes guided the program: the amendment's genesis and its implications for corporate personhood, citizenship and immigration, and civil rights.

The quality of the papers presented was universally high, but in selecting contributions for this special issue of the Journal of the Civil War Era, we chose essays that both were well grounded in the nineteenth century and would challenge readers to think expansively by casting new light (or throwing new shade) on the amendment's multiple origins and even more numerous legacies. The Fourteenth Amendment played a critical role in a "Second Founding" of the nation that promised freedom for formerly enslaved people, but that founding was alloyed with more conservative visions of the remade nation. To embrace the new potential the amendment offered, formerly enslaved people together with allies had to confront the deeply racist conceptions of the nation that predated, and long survived, Reconstruction. While born out of the Civil War era, the Fourteenth Amendment would go on to lead a life, indeed multiple lives, of its own, and it is vital for scholars who work in the nineteenth century to understand and grapple with those larger and longer reverberations.

We begin with an ending. The Fourteenth Amendment often is celebrated as a triumph, the keystone of the "Second Founding," that attempted to bring the Constitution and the country in line with the principles of the Declaration of Independence and the Gettysburg Address by introducing a more egalitarian vision of citizenship, which promised social equality, civil rights, and equal protection under the law. Lisset Marie Pino and John Fabian Witt throw cold water on this view by challenging us to think of the Fourteenth Amendment not as a beginning that opened new possibilities but as an ending that foreclosed them. With the Fourteenth Amendment, they argue, Reconstruction switched tracks from one relying on war powers to protect freed people's rights and status to a far less immediate and reliable one that rested on the courts and malleable interpretations of the law, thus ushering in an era of "paper rights that the federal government failed to vindicate." When viewed in this way, the Fourteenth Amendment was not the triumph of Radical Reconstruction but rather its "betrayal" and "ending." The essay forces us to grapple with many of our assumptions about the amendment and to question whether it deserves its celebrated place as a high-water mark of interracial democracy. The authors invite us to speculate, at least briefly, on what might have been accomplished without relying on the amendment to deliver on the promise of emancipation and to entertain a conflicted and perhaps darker view of a revolutionary amendment that, in this telling, may have forestalled revolution.

Stephen Kantrowitz urges us to consider the Fourteenth Amendment and US citizenship from another unfamiliar perspective, as part of the United States' continued imperial expansion onto sovereign Indian lands. Tracing their twin genealogies, he reveals how African American and Native American citizenships ran in parallel courses, intersecting through legislation and the Fourteenth Amendment but possessing profoundly different origins, intents, and implications. For African Americans and their white allies, nonracial national citizenship was a long-sought and hard-fought milestone in the struggle for racial equality. However, lawmakers who advocated for Native American citizenship during this period had something different in mind: namely, land and how to take it. Whereas for African Americans citizenship stood in opposition to slavery and white racism, for Native Americans it was the...