While we are talking about the relationship of the struggle for civil rights with contemporary politics and jurisprudence, I’d like to call your attention to Eric Schnurer’s fine essay at Ten Miles Square on the strange amnesia among conservatives about the radical intent of the Civil Rights Amendments to the Constitution:
Those who claim to believe in following the Constitution’s letter and the Framers’ intent reject the idea, as Roberts put it, that history ended in 1965 - rather, they believe it ended in 1789. The rallying cry of “original intent” seemingly has taken “original” to mean the document’s 1789 version only. The post-Civil War Amendments hardly ever get the “originalist” recognition they deserve. There’s a reason for that: Self-styled originalists wouldn’t like the results.
That’s because, in the first several years after the Civil War, the Constitution was amended dramatically to alter the role of states from what the Framers of the original document envisioned. As a result of the war, federal authority had been forcibly imposed over a few specific states. The 13th (abolishing slavery), 14th (discussed further here) and 15th (voting rights) Amendments championed by the Radical Republicans “constitutionalized” this new relationship. The new, revised constitutional structure - which we still live under today - was specifically intended to subject states of the former Confederacy to federal control. This renders it transparently disingenuous for the Supreme Court to find itself shocked, shocked that Congress, in enforcing the VRA, would target states of the former Confederacy, and uncharacteristically to insist that we hurry on from the constitutional past.
As Schnurer observes, the 14th Amendment in particular was intended to create, and was in fact used to create, a very different relationship between the federal government and the states, precisely because the Founders’ design had shown its flaws in dealing with slavery.
The written Constitution under which we live today represents the emergence of a vastly different conception of the need for centralized, national power in the 19th Century from that of the revolutionaries of the 18th. Unwise departure from founding principles or not, relevant or irrelevant to today’s world, this reconceptualization of the federal role and federal/state relations was adopted and written into the Constitution, supplanting that of the founding generation. So, if one truly believes (as I do) that fidelity to our nation’s heritage, laws, and values requires giving force to what’s actually in the Constitution and what the framers of those provisions intended, then it’s inconsistent (to be charitable) to continue to cling to, say, Patrick Henry’s vision rather than, say, Thaddeus Stevens’. Or Abraham Lincolns’.
This is an argument that “constitutional conservatives” rarely if ever address, but is perhaps why they feel the need to endow the 1789 document (absent the specific sanction for slavery) with such supernatural trappings. It is richly ironic that people who claim to have such a reverence for American’s unique history and traditions can’t quite seem to come to grips with our country’s most traumatic and transformative event, the Civil War, and its aftermath. But it can’t just be wished away.
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