Opinion | The Actual Threat to Freedom Is Coming From the States

Slavery made a mockery of political and civil rights for whites as well as Blacks, and to many Americans it made no sense that states could pursue such repression without raising the opposition, and intervention, of the national government.

When, after the Civil War and the abolition of slavery, the victors had their chance to further restructure the American political system, they took aim at the barrier between the Bill of Rights and the states, not the least because ex-Confederates were fighting to restore bondage in the former rebel states and would not stop unless met with the force of the Constitution itself. It’s this that gives us the second sentence of the 14th Amendment:

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.

The point of this language — according to its principal author, John Bingham of Ohio, a Radical Republican member of the House — was to “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of right as it stands in the Constitution today.” The adoption of the 14th Amendment, Bingham explained on the House floor, would “take from the states no rights that belong to the states.” But, he said, “if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow men.”

Unfortunately, in a series of rulings culminating with Plessy v. Ferguson in 1896, the Supreme Court would narrow the scope of the 14th Amendment to the point where the Constitution’s limits on the actions of states were little different from what they had been before the Civil War. “The justices,” the historian Eric Foner writes in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,” “insisted that the amendment had not significantly altered the balance of power between states and the nation, and proved unreceptive to claims that a state’s inaction in the face of violence or other expressions of racial inequality proved justification for federal intervention.”

And yet even these monumental setbacks could not erase the fact that the 14th Amendment had, as Foner writes, citing the legal scholar William J. Novak, “set in motion a process whereby rights became attributes of a national citizenship rather than a welter of local statutes, traditional practices, and common law traditions, all of them grounded in inequality.” Many of the legal and political triumphs of the 20th century involve the fight to give substance to and expand the scope of those rights. And whether victory comes through the courts or through legislation, the fights have been, in each case, the struggles of ordinary people expressed through collective, democratic action.

In doing all this, we have, against the history and tradition of this country, begun to construct a robust set of universal rights — a baseline for political and civic equality that extends to every member of the political community and that binds the states as much as it does the federal government. When scholars and other observers of the American system say that we have been a fully functioning democracy only since the 1960s, this is what they mean. This work is far from over — there remains the question of positive economic rights, which have been under assault since they emerged during the Great Depression — but we have nonetheless built a conception of citizenship that was practically unimaginable for a large part of this nation’s history.

It is exactly this triumph that conservatives and reactionaries hope to reverse. The plan, as we have seen with abortion, is to unspool and untether those rights from the Constitution. It is to shrink and degrade the very notion of national citizenship and to leave us, once again, at the total mercy of the states. It is to place fundamental questions of political freedom and bodily autonomy into the hands of our local bullies and petty tyrants, whose whims they call “freedom,” whose urge to dominate they call “liberty.”

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