Protecting the 14th Amendment

For almost 150 years, the 14th Amendment has been the backbone of civil rights law in America. Its protection of individual rights for all -- from freed slaves to immigrants to workers fighting against race discrimination -- has made this amendment an honorary member of the Bill of Rights.

No wonder it is under attack.

In recent months, Republican Senators and state legislators have sought the public spotlight by calling for an end to the amendment's guarantee of citizenship to those born on U.S. soil. If a child's parents are not documented, they shout, that child should not be allowed to be a citizen. If they had their way, they would roll back a U.S. Supreme Court decision, U.S. v. Wong Kim Ark, decided more than a century ago.

If this is what the enemies of the 14th Amendment are doing in the spotlight, imagine what they are doing behind the scenes to eviscerate the measure. Those who want to turn the clock back on civil rights also are trying to undo the Amendment's Equal Protection clause, making it virtually impossible for victims of discrimination to find justice in our courts.

First, a short history. The 14th Amendment was added to the U.S. Constitution in 1868, promoted by the Republican Party of the time -- the party of Lincoln -- to protect Blacks from the violence and inequality they faced in the aftermath of the Civil War. The Amendment granted the rights of citizenship to all individuals born in the U.S., including freed slaves. It guaranteed African Americans the right to citizenship, and to the privileges and immunities that go along with citizenship.

Almost immediately after it was enacted, lawmakers began trying to chip away at the Amendment, defining it so narrowly as to make it almost toothless. As Lawrence Goldstone outlines in his powerful new book, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, one of the first salvos against the 14th Amendment took place in the 1870s, following the "Colfax Massacre." After a disputed gubernatorial race, several hundred white men attacked freed slaves in Colfax, Louisiana. More than 100 Black men are estimated to have been killed. Though a few of the white mob were charged in federal court, only three eventually were convicted. Later, the U.S. Supreme Court overturned even those convictions in the case of United States v. Cruikshank, finding that the 14th Amendment did not apply to individuals, only the state.

In another pair of cases just a decade later -- Strauder v. West Virginia and Rives v. Virginia -- the nation's high court would go even further in eroding of the 14th Amendment. In Strauder, an African American man was convicted of murder by an all-white jury, and he appealed. The Supreme Court found that West Virginia's statute explicitly stating that African Americans were not allowed to serve on juries did violate a Black defendant's right to a fair trial and was unconstitutional under the 14th Amendment. However, in Rives, the Court upheld the convictions of two African Americans by an all-white jury in Virginia. The reason? Virginia did not have an explicit law on its books that barred Blacks from serving on juries, even though it did so in practice. As a result, states could find ways to segregate, discriminate against, and exclude Blacks without being found in violation of federal law and the 14th Amendment.

The political attacks became even stronger after the successes of the civil rights movement. The Amendment's Equal Protection Clause became the basis for the U.S. Supreme Court's 1954 ruling in the landmark case Brown v. Board of Education, which ended the doctrine of "separate but equal." It gave new hope and legal strength to millions who challenged legalized segregation and race discrimination. When President Lyndon Johnson signed the Civil Rights Act of 1964, he was well-aware that the enemies of equal rights would not sit quietly by, noting wryly, "we just gave the south to the Republicans."

The biggest legal blow came in 1976, when the U.S. Supreme Court decided Washington v. Davis. Two African-American applicants who failed personnel tests for jobs as police officers in Washington, D.C., alleged that the test was unconstitutional because it disproportionately failed Blacks, excluding them from work at the police department. They were backed by clear scientific evidence showing that the tests did disproportionately impact Blacks. But because the plaintiffs could not show that the racial inequality was intentional, the Court ruled that the Constitution was not violated. The standard the court set in that case is known as the "intent doctrine."

This crowning blow to the gradual erosion of the 14th Amendment's protections currently bars countless victims of discrimination from seeking justice in the courts. Though George Wallace is no longer chanting "segregation now, segregation tomorrow, segregation forever" on the school house steps, race-based disparities still persist in almost every measure of societal well-being -- from employment, health, and education to wealth, housing, and the criminal justice system. When racial bias is implicit or structural, it makes no sense to require proof that these disparities result from "intentional" discrimination.

Our embattled 14th Amendment deserves to be safeguarded both from frontal and stealth attacks. We must first shed sunlight on the insidious efforts to do away with this bedrock principle. Then, we must return to the courts - yes, even the United States Supreme Court - and insist that the full Constitution be upheld, including the 14th Amendment. Civil rights advocates must not cede the ground to those who would deny us equal protection of the law. We're ready to fight; join us.