14th Amendment remade Constitution, defined citizenship

For Law Day, we celebrate the Fourteenth Amendment, which has become the heart of the constitutional system within which we live and practice our profession. Our constitution (lower case because I'm talking not about the document itself but about the makeup of the nation) has not remained - nor could it have possibly remained - static throughout our history. Rather, We the People have constantly engaged in the process of redefining ourselves, and to a considerable degree we have done so by reconstituting who we are as a people and reimagining the meaning of the document that first called us into existence. The Constitution left the constitutional project incomplete, leaving it to each generation to engage anew with the constitutional tradition, cope with the ever-changing present, and project our collective self into the future. Scholars tell us convincingly that we have witnessed not one, but three foundings in American history. Three times in our history we have fundamentally altered our constitution; three times we have redefined, re-constituted, ourselves as a people. The first and most famous occurred in Philadelphia in 1787 and produced the text of the original Constitution. But the nation in which we live today bears little resemblance to that called forth by the original Constitution. Change has not simply been the product of science and technology, or the product of the transformation of our economy from agrarian to service-oriented post-capitalist, or even the product of what Chief Justice Warren called (in Trop v. Dulles) "the evolving standards of decency that mark the progress of a maturing society." For two constitutional revolutions have occurred since the original founding, one in the period just after the Civil War, the other beginning in the New Deal and extending into our own times. The constitution of the United States was far different after the Civil War amendments than it was in the Washington Administration, and far different in, say, 1965 or 2017 than it was in 1896. The fundamental importance of the Fourteenth Amendment lies in the fact that it was the ground on which both of these constitutional revolutions arose. The original Constitution said nearly nothing about citizenship; in fact, it only used the word "citizen" a handful of times. As a result, the primary form of citizenship prior to the Civil War was state citizenship. The infamous Dred Scott decision was grounded, at least in part, on the rejection of the very idea of national citizenship. It took Lincoln to emphasize "union" and breathe life into the idea of a national citizenship. It took the Fourteenth Amendment to define national citizenship ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof"). And it took the Fourteenth Amendment to give national citizenship primacy over state citizenship ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). The Fourteenth Amendment cashed the promise of the Constitution to create a new nation and a new people. Today, we see ourselves as American citizens first, citizens of our state of residence or origin second. Of course, the Amendment didn't create the new citizen of the United States all by itself, or right away. The process, like all things in law and life, was not always a smooth one. The full meaning of American citizenship had to be developed over time, most often by courts confronted with particular questions raised by litigation. The third constitutional revolution, the third founding, occurred as courts began to spell out the dimensions of United States citizenship in the twentieth century. In this endeavor, they turned to other clauses of the Fourteenth Amendment. ". 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." The Due Process and Equal Protection clauses not only reinforce the notion that the rights of national citizenship outweigh the desires of state legislatures, courts, and administrative agencies, but also tell us what United States citizenship consists of: rights to life, liberty, and property not easily taken away, and a right to be treated equally in all state action. These clauses - written, like much of the original Constitution, in open-textured language the meaning of which develops over time - challenge our courts to render them meaningful for 21st century citizens. Consequently, the Fourteenth Amendment still lies at the heart of our constitutional project. As we face new challenges, new circumstances, the Fourteenth Amendment guides our collective endeavor to continually re-constitute ourselves as a people capable of union, justice, and tranquility, a people fully able to secure the blessings of liberty to ourselves and our posterity. ----- Kevin Ryan is the executive director of the Monroe County Bar Association. Published: Thu, May 04, 2017