The Remembered Past of the Fourteenth Amendment
The Civil War redefined the American nation, and the legal essence of that redefinition was captured in three constitutional amendments. 1 The first abolished slavery, and the third extended suffrage to all adult males without regard to color. The second--the Fourteenth Amendment--prohibited the states from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process. Its first section has in fact become a second American constitution, and its meaning is the preeminent question of contemporary constitutional law.Although the amendment guarantees both substantive rights and procedural fairness, the three great clauses of Section 1 do not specify either the rights protected or the procedures required. 2 While Section 5 grants Congress the power to enforce Section 1 by "appropriate legislation," it is silent on how, if at all, the federal structure of the government limits that power. 3 The effort to provide that specification and fill that silence has raised two profoundly troubling questions:
The Warren Court "imagined the past and remembered the future."
-- ProfessorAlexander Bickel, critiquing the Court's attempt to construct the "Egalitarian Society"
|•||Is the Fourteenth Amendment the new birth of freedom for which Lincoln prayed at Gettysburg or the Jacobin nightmare predicted by its post-Civil War critics?|
|•||Should the amendment's oracle, the Supreme Court, be praised for finally fulfilling the Declaration of Independence's promise of equality and fairness for all or be damned for destroying the republican bulwarks that alone preserve individual liberty?|
The answers to these questions divided the Court and the country as early as the Slaughter-House Cases. 4 They divide both still.