On May 4, amateur historian David Barton appeared on Jon Stewart’s Daily Show. Barton’s central argument was that, constitutionally, the first amendment applies to the federal government but not to the states. Therefore, if individual states and municipalities see fit to make the Bible the sole standard for criminal and civil law, to reinstate chattel slavery or to make Christianity an official and protected religion, the federal government can do nothing about it.
Barton didn’t suggest that non-federal governments should do these things, merely that they can if they want to.
On May 14th, Jon Stewart invited Richard Beeman, an actual constitutional scholar at the University of Pennsylvania, to respond to Barton’s theory.
Beeman admitted that, prior to 1868, Barton’s states rights argument was valid–the US Constitution really didn’t apply to the states, only to the feds. Then came the 14th amendment, the first section of which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
During the Reconstruction period, federal armies backed up the provisions of amendments 14-16, ensuring that all confederate state governments abolished slavery and swore loyalty to the federal government and the US Constitution.
Then came the Compromise of 1877 according to which the southern states signed off on the election of Rutherford B. Hayes in exchange for the withdrawal of all federal troops from southern soil. This led to the weird phenomenon we call Jim Crow. The southern states routinely deprived black residents of a wide range of constitutional protections and the federal government looked the other way.
This anomaly was masterfully exploited by Martin Luther King. By pointing out the great, aching gulf separating constitutional protections from social reality, King created a colossal case of national cognitive dissonance.
It should surprise no one that the most conservative fringe of the Republican Party has recently been calling for the repeal of the 14th amendment. Ostensibly, these folks are only concerned about granting citizenship to the children of undocumented residents, primarily those from Latin America. But the passion for repeal goes far deeper. At issue, as David Barton’s unconstitutional scholarship suggests, is the desire of state and municipal governments to return to the good old days when they were free to abrogate the provisions of the US Constitution at will.
It is often believed that the civil rights movement represents the vindication of federalism and the defeat of states-rights southern conservatism. To an extent, this is true. But it is equally true that, in the wake of the civil rights movement, the conservative movement hitched its star to southern white resentment. As the politics of America lurched ever rightward, the typically southern we-don’t-care-what-the-constitution-says reaction to issues like the equal protection of law and church-state separation has been ascendant.
The 14th amendment is still in effect, but we are rapidly drifting toward a second grand compromise in which the states and municipalities flout the provisions of the constitution with impunity.
It is becoming increasingly difficult to reform the criminal justice system on constitutional grounds because, as a practical matter, the Supreme Court has defined and interpreted many of its provisions out of existence. No one really expects the courts to provide equal legal protection to the politician, the police officer and the punk on the corner. The issue of racial bias within the criminal justice system has been largely laid to rest. How long will it be before the children of undocumented immigrants are regarded as non-citizens and the state of Alabama (or Texas, or Mississippi) is free to declare Christianity the official state religion?
This assumes, of course, that present trends continue–and that is something present trends seldom do. But it will take a dedicated moral movement to put steel back into the spine of the 14th amendment.