The Other Constitutional Crisis

Trump Now Leads the Fight Against the 14th Amendment

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The South was impelled to brute force and deliberate deception in dealing with the Negro because it had been astonished and disappointed not by the Negro’s failure, but by his success and promise of greater success.

W.E.B. DuBois, Black Reconstruction

The consensus among many commentators is that we stand at the precipice of a constitutional crisis. I disagree. I believe we are already fully in the grip of a constitutional crisis. The Republican majority that controls of one of our three co-equal branches of government has relinquished its constitutional power, and lays prostrate before the extremist program of President Donald Trump. When one branch of our government abandons its constitutional obligation to serve as a check on the excesses of the other two branches, our constitution order is threatened.

But there is another constitutional crisis hiding in plain sight. This longstanding constitutional crisis faces its most dangerous and reckless acceleration since the 19^th century and is of a piece with Trump’s aggressive and destructive effort to dismantle the infrastructure of modern American government.

Trump has become a zealous and unrelenting general in the decades-long war on the promise of the 14^th amendment to the Constitution.

The 14^th Amendment[1] is the second of three constitutional amendments ratified after the Civil War.[2] The Amendment is complex and rich in its architecture and substance. Its explicit goal was to ensure the full citizenship of Black people in our country. In its first sentence is guarantees birthright citizenship “to any person born or naturalized in the United States, and subject to the jurisdiction thereof.” It restrains states from abridging life liberty or property without providing citizens with the protections of due process, and from denying any person equal protection of the law. Historian Eric Foner has described the 14^th Amendment as “the most important amendment added to the Constitution since the Bill of Rights in 1791.”[3]

The 14th amendment has been under attack since its ratification in 1868. But President Trump has distinguished himself by advancing the most aggressive dismantling of the Amendment’s promise of any President since the efforts by Andrew Johnson, President Lincoln’s successor, and an avowed white supremacist.

The sheer volume of Trump’s actions targeted at programs and policies designed to advance the 14^th amendment’s guarantee of equality and full citizenship for Black people is staggering. Consider:

· His challenge to the very first guarantee of the 14^th Amendment: birthright citizenship. Trump’s challenge attempts to rewrite this provision and override the intention of the 14^th Amendment’s framers to eliminate “caste” in U.S. citizenship.[4] Trump’s challenge would require the Supreme Court to overturn its more than 100-year-old precedent.

· Trump’s decision to overturn President Lyndon Baines Johnson’s Executive Order 11226, which was designed to right the wrong of exclusion of Black owned businesses from federal contracting.[5]

· Trump’s EO banning diversity, equity and inclusion initiatives, programs and even language from American life by banishing it not only in the federal government hiring and policies, but also in state and local programs receiving federal dollars.[6]

· Trump’s EO banning the accurate teaching in K-12 schools of the history of racism in our country and its ongoing significance by deeming such teachings “discriminatory equity ideology,” and demanding that schools teach what he chillingly refers to as “patriotic education.” This EO, if followed to the letter, would disappear the entire story of Black struggle, demand, and resilience in this country, making any effort to teach our nation’s history a lie.

· This same EO, which lifts up the 1776 Commission, a non-governmental consortium of rightwing scholars was created to countermand the blistering history of systemic racism chronicled in Nikole Hannah Jones’ 1619 Project. Trump’s Executive Order compels the Department of Education to provide funding and administrative support for the 1776 Commission.[7]

· The reversal of 7 earlier Executive Orders going back to President Clinton that identified and compelled consideration of the disproportionate harms borne by communities of color from environmental hazards. Trump’s EO essentially wipes out the hard-fought for consideration of environmental justice in governmental policy.[8]

· Trump’s new Attorney General Pam Bondi, threatened to open “criminal investigations” against corporations, foundations or other entities that promote Diversity, Equity and Inclusion initiatives.[9] (Of course, there is no criminal law that makes the promotion or use of DEI measures a crime; but it’s the threat that counts).

· Last week the Acting Deputy Secretary of Education issued a letter to heads of colleges and universities purporting to outlaw any and all programs targeted at students based on race including “Black proms” and special graduation services, prizes, clubs and dormitories.[10]

These actions have been accompanied by Trump’s ad hominem racist attacks on Black achievement and competence, blaming a catastrophic airplane collision in Washington, D.C. in which 67 people lost their lives, on diversity, equity and inclusion programs (DEI), which are designed to bring greater racial and gender diversity to the workplace. When pressed on why he would assume that the crash was due to the incompetence of a racial minority or woman pilot, Trump deemed it “common sense.” [11]

The myth of Black incompetence advanced by Trump, Elon Musk and Chris Rufo and an embarrassingly large number of business leaders and elected officials is, of course, projection. It is the competence and accomplishment of President Barack Obama, fmr Defense Secretary and 4-star General Lloyd Austin, Vice President Kamala Harris, Justice Ketanji Brown Jackson, Attorney General Leticia James, along with the prominence of Black CEOs, journalists, and politicians, and the cultural dominance of Black athletes and artists, that has stuck in their craw. The presence of robust Black achievement is a signal for them that things have gone too far. And so despite the ongoing racial wealth gap, the educational achievement gap between Black and white children, the ongoing reality of housing discrimination, employment discrimination, environmental injustice and police violence against unarmed Black people, something must be done. Time to dial back the efforts to bring Black people more fully into spaces of influence and power. It is not our incompetence they fear. It is our excellence. As the DuBois quote that begins this essay explains, this is as it has always been.

The multi-racial outpouring of protests after the murder of George Floyd was deeply traumatizing for these people as well. They saw the awakening of empathy in their own communities and children, who marched together with Black activists in all 50 states against the injustice they watched over 9 minutes on that video. It is fear of the empathetic response of white children to injustice that has driven the demand that Black history and the stories of marginalized groups be excised from schools and libraries.

There are those who say we are once again fighting the Civil War. Again, I disagree. That war was fought and won. What has been resisted since then is the new country that was stitched together by the framers of the Civil War Amendments, who stitched together from the frayed garment of a war weary republic, a new nation. Their names – John Bingham, Charles Sumner, Thaddeus Stevens, and others – should be as familiar to us as Hamilton, Jefferson, and Madison. They created the blueprint for a new nation – one without caste in which, as the Declaration of Independence promised “all men are created equal.” They corrected the errors and compromises that dotted our original Constitution (like the 3/5 compromise that measured Black personhood in fractions) - compromises that made our march towards Civil War inevitable. And their work was influenced by other founders – Frederick Douglass, participants in the many Colored Conventions who shared petitions with their Congress, abolitionists, suffragists, and the enslaved themselves, whose relentless pursuit of freedom confirmed the fundamental humanity of Black people held in bondage.

But the Amendment had barely taken its first breath when the challenges to its integrity began. It was violence first – relentless mob violence and the Klan – that made it nearly impossible for Black people in the South to live as full citizens. Local laws in the South were a critical tool as well, in the form of slave codes – vagrancy laws that allowed for the arrest of Black people for minor infractions, or for none at all. Once in jail, Black arrestees faced fines that were paid by planters, industrialists, and ordinary white people who, in exchange received the arrestees as unpaid laborers. Slavery by another name.

The Supreme Court played a powerful role in weakening the 14^th while, during the same period, granting corporate “personhood” under the Amendment and expanding corporate rights. Within 30 years of its ratification, the Court issued a series of decisions culminating in Plessy v. Ferguson[12] in 1896 that had transformed the equality promise of the 14^th amendment for Black people into a system of legal apartheid that covered half of our country for the first half of the 20^th century.

While the Supreme Court continued its hostile decision-making towards Black plaintiffs seeking equal rights under the 14^th Amendment into the early 20^th century, Congress abandoned its enforcement power, failing to pass anti-lynching legislation or any other civil rights statute until the Civil Rights Act of 1957, leaving the majority of Black people to economic exploitation as sharecroppers, and subject to indiscriminate mob violence.

Brown v. Board of Education[13] was a powerful moment in shifting the trajectory of the Court’s treatment of the 14^th Amendment, affirming finally right of Black people to equality as citizens. Like the 14^th Amendment itself, Brown had barely taken a breath before a plan of resistance took hold. Violence played a powerful role in subverting Brown. Black students were threatened, menaced, and assaulted when they sought to attend white schools. But it was the leading business and civic community that worked most assiduously to frustrate Brown. The “best people” of southern counties and towns joined the “White Citizens’ Council” a civic club focused on maintaining the subordination of Black people in public life.

Even more powerful was the role of elected officials. U.S. Senator Harry Byrd of Virginia organized 101 Members of Congress signed the Southern Manifesto, announcing their determination to resist Brown. It was Governor Byrd who gave the unrelenting fight against the fulfillment of the 14^th Amendment’s promise its name: “Massive Resistance,” a rallying cry taken up by white communities across the South. Local school boards and Governors refused to implement Brown, closing the public schools and “standing in the schoolhouse door of public universities rather than integrate.

Their resistanceinevitably provoked a constitutional crisis, when violent white mobs refused to allow Black children to enter Central High School in Little Rock, Arkansas, and local officials defied the orders of federal district courts rather than integrate. In the face of this crisis, President Eisenhower (who was not an integrationist) called out the 102^nd Airborne to ensure the safety of the Little Rock 9. The Supreme Court stood strong and resolute. It’s decision in Cooper v. Aaron made clear the state actors must obey federal court orders.

Fast on the heels of Brown, the Civil Rights Movement sprung forth, creating a powerful, organized and determined demand for the rights guaranteed under the 14^th Amendment. Together Brown, the cases decided by the SCOTUS under Chief Justice Warren, and the courageous, strategic, and unrelenting campaigns of civil rights activists, transformed this country in the middle of the 20^th century. Their work and sacrifice opened up opportunities for generations of Black people whose forbears had been excluded from access to jobs, housing and education.

It is important that we recognize the constitutional dimensions of the Civil Rights Movement. Indeed we shortchange the contribution of civil rights activists when we forget that they were powerful constitutional actors, not just protestors.

It took their grassroots effort to rescue the meaning and intention of the 14^th Amendment. The effort of those activists to uphold and give meaning to our Constitution was met with dogs, bombs, beatings, arson, and assassinations. But the persistence of those courageous activists compelled Congress to do its constitutional duty and pass legislation to enforce the 14^th Amendment’s protections. The three core civil rights statutes Congress enacted – the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act, finally passed the week after Dr. King’s assassination – have shaped our national values and policies for over 60 years. There has been forward motion. But there has also been sustained backlash.

Our failure has been to recognize this ongoing and relentless resistance to fulfilling the promise of the 14^th Amendment as a constitutional crisis. No other amendment to our Constitution has been met with the level of hostility from all three branches of government and from white Americans over 150 years, as the 14^th Amendment. Those who stand against the 14^th Amendment stand in defiance of our Constitution - whether they are an ordinary racist who refuses to serve a Black person, or a President who seeks to dismantle the 14th Amendment by Executive Order.

This is a dangerous moment. The anti-14th Amendment forces in our country now have a champion in the President of the United States. And, many fear, they have a champion in the conservative majority on this Supreme Court.

What’s the end game? Hollowing out the meaning and power of the 14th amendment’s guarantee of full and equal citizenship for Black people, and for those historically marginalized groups that have also benefitted from the Amendment’s guarantee of equal protection of laws. The amendment will sit then in our Constitution, fully available for the use of corporations to expand their claims to protection as “persons” (see e.g., Citizens’ United and Hobby Lobby cases expanding corporate First Amendment of corporations), but of little use for its intended beneficiaries – Black people.

What of this constitutional crisis? It presents as dangerous a threat to the integrity of our constitutional order as the failure of checks and balances. It is an effort to undo our “Second Founding” after the Civil War, to reimpose a racial caste system and call it “common sense.” And it is an effort to bury the truth: that the struggle of Black people in the U.S., and white resistance to Black equality, continues to powerfully shape American constitutionalism.

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[1] https://constitution.congress.gov/constitution/amendment-14/

[2] The 13^th Amendment abolished slavery, and the 15^th Amendment constrained states from denying the right to vote to citizens based on “race, color or previous condition of servitude.”

[3] https://www.theguardian.com/law/2023/nov/15/eric-foner-14th-amendment-trump#:~:text=Eric%20Foner%3A%20The%2014th%20amendment,is%20also%20the%20longest%20amendment.

[4] https://www.federalregister.gov/documents/2025/01/29/2025-02007/protecting-the-meaning-and-value-of-american-citizenship

[5] https://www.federalregister.gov/documents/2025/01/31/2025-02097/ending-illegal-discrimination-and-restoring-merit-based-opportunity

[6] https://www.federalregister.gov/documents/2025/01/31/2025-02097/ending-illegal-discrimination-and-restoring-merit-based-opportunity

[7] https://www.federalregister.gov/documents/2025/02/03/2025-02232/ending-radical-indoctrination-in-k-12-schooling

[8] https://www.scientificamerican.com/article/trumps-revocation-of-environmental-justice-order-will-hurt-marginalized/

[9] https://www.justice.gov/ag/media/1388501/dl?inline

[10] https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf

[11] https://apnews.com/article/plane-crash-washington-dc-trump-dei-claims-3ac5486ec594d81e919e8ebbd9733869

[12] https://supreme.justia.com/cases/federal/us/163/537/

[13] https://supreme.justia.com/cases/federal/us/347/483/