The Thirteenth, Fourteenth, and Fifteenth Amendments make up the Civil War and Reconstruction amendments. The Thirteenth abolished slavery except as punishment for a crime, but America needed to do more to prevent the resurgence of the slave-owning South’s caste-based society. The Fourteenth and Fifteenth Amendments enshrined in the Constitution principles of universal male suffrage, nondiscrimination, and nonracial (birthright) citizenship. Although imperfect—the vote for women was not included—they were a crucial first step toward ensuring that the rights conferred by American citizenship would remain inviolate no matter where you were, and no matter who you were.
After the Reconstruction period following the Civil War, the Supreme Court essentially voided the meaning of these amendments. The post-Reconstruction Court helped pave the way for Jim Crow, showering most of the rights reserved for the emancipated on corporations, allowing states to disenfranchise their Black populations through superficially “color-blind” means, and permitting racial discrimination by both government entities and private actors. The amendments were resurrected during the civil-rights movement, but they are now under assault for a second time by both the Court and an executive branch that is distorting or refusing to enforce antidiscrimination laws about housing, voting, and employment.
A faction of conservatives has never stopped this campaign. As soon as the Reconstruction amendments were passed, people argued that they were illegitimate, a betrayal of the original document—a “rape of the Constitution” as the columnist Frank Meyer wrote in 1964 about Brown v. Board of Education in National Review. In 1965, that magazine published a cover story arguing that the Voting Rights Act, by enforcing the Fifteenth Amendment, would effectively “repeal the Constitution to give the Negro the vote.” During the Reagan administration, a young attorney in the Justice Department named John Roberts fought to weaken the law. Originalism, the author Madiba K. Dennie points out, is a convenient vehicle for this project because it prioritizes interpretations from historical periods where women and Black people were excluded from the political process.
In more recent years, the slain right-wing activist Charlie Kirk complained that the Fourteenth Amendment was a “Marxist revolutionary gateway” for everything the left wanted to push through. The more genteel conservative writer Christopher Caldwell argued that the entire post-civil-rights-movement Constitution was a “rival” to the “constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it.”
Roberts’s Court likes to invoke history and tradition, but some justices are perfectly happy to ignore the express intent of the Founders—such as the fundamental belief that the Constitution is meant to change—to further an ideological project. The Roberts Court’s repeated rewriting of the Constitution on Trump’s behalf reveals the antebellum Constitution they envision to be a fraud, a gauzy nostalgia based on the Founders’ worst impulses as slavers and hypocrites. This is an attempt to turn the guarantees of the Civil War amendments back into what James Madison called “parchment barriers,” their meaning perverted to ensure the protection of the strong instead of the weak.