Yes, This Is America

Why I'm Creating the 14th Amendment Center for Law & Democracy

No matter how much we expected it, there was simply no way to overcome a sense of creeping despair at the liberties taken by the Supreme Court this Term, and by the right wing majority’s now plainly apparent determination to dismantle the infrastructure of our post-Civil Rights Movement America.

Most dismaying for me, and ominous for our country was the continuation of the majority’s bold and cynical effort to coopt the vision and promise of the 14th Amendment to our Constitution. To my mind, the 14th Amendment https://constitutioncenter.org/the-constitution/amendments/amendment-xiv is the most important provision of our Constitution. It articulates most completely the vision for the new multi-racial America that would be created after the Civil War. Ratified in 1868 it one of the three Civil War Amendments, it opened the possibility that this country could reroute our democracy away from the smoking ruins of the inevitable crash first set in motion by the compromises made by the Framers of our first Constitution.

By outlawing chattel slavery (13th Amendment), ensuring citizenship for Black people both enslaved and free and guaranteeing equal protection of the laws (14th Amend) and protecting the right of Black people to vote (15th Amendment), the Civil War Amendments provided a new constitutional platform for a multi-racial America. That platform was built by the men and women I think of as the founders of our Second America. Not just, as some suggest, the Radical Republicans in Congress who most directly brought the Civil War amendments to life. But also those people Black and white who labored during the decades before the Civil War fighting for the idea of Black citizenship, by abolitionists, and those who worked to set America at long last on course to become a true multiracial democracy. The culmination of their efforts were the powerful Civil War Amendments which rose from the shattering devastation of 600,000 lives lost in War, the life of our President ended by assassination, and the lingering devastation that slavery wrought upon Black people both slave and free in this country over hundreds of years.

The 14th Amendment was the jewel that lay at the center of it all. Its guarantee of birthright citizenship, its articulation of racial equality as a core protection, and its rearticulation of due process as a core feature of citizenship was transformative and radical.

And the 14th Amendment did so much more. It reordered the relationship between the federal government and the states, strengthening the protections of national citizenship and open barring states from engaging in conduct that would infringe on the full citizenship of Black people. It is also the only provision in the Constitution that confronts with clear-eyed sobriety the ongoing threat posed by white supremacists and insurrectionists to our republic. Indeed the 14th Amendment even provides tools for disarming the ambitions of white supremacists and insurrectionists who the Framers understood would always constitute a threat to project of creating a multi-racial democracy. And the Framers assigned to Congress the power to enforce the Amendment’s ambitious provisions.

But in fairly short order - within 26 years of its ratification - the 14th Amendment was divested of its potential. Congressional inaction, and a series of tragically hostile Supreme Court decisions culminating in Plessy v. Ferguson hijacked the project of the 14th Amendment for Black Americans.

Corporations made out well, obtaining “personhood” under the 14th Amendment by a strange administrative sleight of hand in Supreme Court reporting. I’ll be talking more about this in the future.

In 1883 after the Supreme Court’s disastrous decision in the Civil Rights Cases, in which it deemed that the 14th Amendment was unconcerned with and powerless to protect against private racial discrimination in public accommodations, Frederick Douglass declared that the Court “has construed the Constitution in defiant disregard of what was the object and intention of the adoption of the 14th Amendment.”

This was the statement that came to my mind first upon reading the majority opinion in SSFA v. Harvard and SSFA v. UNC. Chief Justice Roberts took pains to ground the rationale for the Court’s decision ending race conscious admission in universities and colleges in a distorted and context-free vision of the 14th Amendment. He even weaponized Brown v. Board of Education as justification for the awful decision.

A week before the Court’s decision in SSFA, I announced that in 2024 I will be joining the faculty at Howard Law School as the Vernon Jordan Chair in Civil Rights. From that position I announced that I will be launching a new Center at Howard Law School: the 14th Amendment Center on Law & Democracy. This Center will be my effort to launch a multi-disciplinary offensive to save the promise of the 14th Amendment, to ensure that its principles, guarantees, visions, and cautions, take their rightful place at the center of our national identity. The project will be one that focuses of course on law, but it will also engage policy, business, and the arts. The 14th Amendment is not just words on paper to be interpreted by courts. It presents a way of thinking about our new country - a reimagining of citizenship, a centering of equality as a democratic value, a reckoning with the danger of an ongoing white supremacist political power grab, and the insurrectionist strain that infects the South. This understanding of ourselves should permeate every institution of our democracy.

The moment we are in calls for a bold ambitious vision for our future. I seek to make the 14th Amendment as familiar and important to our conception of the provisions that guard our core constitutional rights as the First and Second Amendments have become - not just for lawyers and scholars, but for ordinary . people. This requires a full exploration of our rights and obligations under the 14th Amendment. Understanding the rich vision embedded in this Amendment should fire our imagination for what our country could become. At this moment, I believe that an understanding of the 14th Amendment’s promise, and our willingness to fully use it robust provisions, can help us move towards creating the multi-racial democracy for which many of us have long hoped. The past decade has revealed many of the weaknesses of our democracy. We believed ourselves stronger, more resilient, and further along on the project of becoming a nation grounded in principles of equality and justice than we have proven to be. It has been a sobering but necessary reckoning with how much work lies ahead of us. Now we must strengthen our resolve to ourselves become founders of the America we want for the 21st century.

We are off to a disappointing start. Twenty-three years into this new century, we find ourselves in a time of democratic crisis. The very dangers warned against in the 14th Amendment threaten our country, and yet we seem powerless to disarm them. In our national imagination, in the obsessions of our political dialogue, in our legal challenges and decision-making we evidence an ongoing obsession with our deeply-flawed First Constitution, to the exclusion of our robust engagement with the Second Constitution. It has allowed far too many in our country to believe that we can be a great nation without exhibiting the courage and resolve needed to grapple with issues of race, citizenship and equality that were the focus of the Civil War Amendments.

With tremendous excitement I am building this Center as a place where we can do the work of resetting and building the country for which many of us have dreamed, and that has seemed farther and farther out of reach. To do this work at Howard Law School is the highest honor. I think of the great Charles Hamilton Houston as having created the first 14th Amendment Center at Howard, as he trained the best and brightest lawyers to develop a strategy that would “break the back of Jim Crow,” which was the most perverse distortion of the 14th Amendment’s guarantees. The result was the creation of a cadre of lawyers who changed the trajectory of American democracy in the 20th century.

The Center I seek to create will be the second 14th Amendment Center at Howard Law School. I have no ambitions that we will be as effective as Dean Houston. His work, like that of Thurgood Marshall, is sui generis. He was a master architect. A founder of our democracy in every respect. But just as I took up the mantle of leading the NAACP Legal Defense Fund 10 years ago to continue the work that Marshall started in 1940, so too it feels right and critical that I attempt to follow Houston’s example at Howard, in collaboration with other law school and undergraduate programs, but also with leaders in business and the arts. And with the real experts - the activists and ordinary people whose vantage point and experiences allow them to see more clearly this country’s weaknesses.

Despite the challenges of the moment in which we find ourselves, I feel no fear. In fact, this great unraveling of democratic practices and norms, allows us to think and act even more boldly in building the nation our children, and their children deserve. I am ready to fight. I hope you are too. That’s why I’ve been working hard to complete my book “Is This America?” It will be published in 2024 and I hope it will provide a helpful diagnosis of how we landed here, and a blueprint of what we must do if we are to create a healthy multi-racial democracy in this country. I’ll be spending the summer completing this manuscript.

In the meantime, follow me on Threads, Spill and Post. From time-to-time you’ll find me on Twitter although on all these platforms with dramatically less frequency. After the summer I will use these platforms most often to share my Substack newsletters, and to share news that I think should be included in our discourse about politics, civil rights, law, and the 14th Amendment, (also about soccer, the Yankees, art, music and Baltimore).

Let’s stay connected. No matter what, we fight on!

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