Fourteenth Amendment as a New Constitution

• Author: Akhil Reed Amar
• Pages: 1090-1092

Page 1090

The FOURTEENTH AMENDMENT transformed?reconstructed?the meaning of the Framers' Constitution. This transformation is most visible in the interpretations now given to the BILL OF RIGHTS. At the Founding, the first ten Amendments were primarily structural, emphasizing STATES ' RIGHTS and majoritarian POPULAR SOVEREIGNTY. These amendments applied only against federal officials (as the Supreme Court made clear in the 1833 case of BARRON V. CITY OF BALTIMORE), and were never described by the antebellum Court as the "Bill of Rights." The Fourteenth Amendment changed all that. The Amendment aimed to make the various rights and freedoms of the original bill applicable against state and local governments?what twentieth-century jurists call "incorporation" of the Bill of Rights. In the process, the amendment reshaped the meaning of these rights, giving Americans a new birth of freedom featuring national protection more than states' rights, and minority rights more than majority rule. Only after and because of this amendment does it make sense to call the original amendments a true "Bill of Rights" for individuals and minorities. In addition, the amendment affirmed the idea of national CITIZENSHIP; highlighted the key value of equality (a word notably absent from the Framers' Constitution); sought to penalize denial of VOTING RIGHTS of black men; and tried to give Congress a broad substantive role in protecting liberty and equality.

The Founding Fathers forged their Constitution and early amendments in the afterglow of the AMERICAN REVOLUTION. That revolution showcased POPULISM and FEDERALISM?the people collectively had acted to throw off the yoke imposed on them by government officialdom, and democratic local regimes had banded together to help their citizens fight off an arrogant imperial center. Liberty held hands with localism?the rallying cry of "no taxation without representation" sounded in federalism as well as freedom, affirming the rights of local, representative legislatures even as it denied power to the central Parliament. Classical political theory also suggested that democracy thrived in small settings, and could not easily extend over a vast continent encompassing a large and diverse population. Thus, the patriots' initial scheme of government featured a loose-knit confederation of sovereign states with little effective central power. When these ARTICLES OF CONFEDERATION proved too weak to hold America together, the Federalists proposed a new Constitution that

Page 1091

they claimed would vindicate the principles of the revolution. Beginning with the words "We the People," the Constitution in both word and deed stressed popular sovereignty: the words became law by ratification in popular conventions via a process that was more participatory than anything before in the planet's history (though still woefully underinclusive from a...