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The last battle of the Civil War
The one that completed the Union victory (Moments that Made America)
On this day - July 9 - in 1868, the legislatures of Louisiana and South Carolina ratified the Fourteenth Amendment, providing the three-quarters of the states necessary to add the amendment to the Constitution and make it part of the supreme law of the land. The battle for the Fourteenth Amendment had been less dramatic than the military engagements of the Civil War, but the adoption of the amendment sealed the Union victory in a way no other battle had.
The original question of the war was the great unanswered question of American constitutionalism until then: When push came to shove, which level of government - national or state - prevailed? Article VI of the Constitution declared federal law to be the “supreme law of the land,” but what if a federal law was itself unconstitutional? Who would determine that? And who would enforce the determination?
The states that joined the Confederacy asserted that the states should prevail in a conflict between the states and the national government. And that the states possessed the ultimate right of determination: the right to leave the Union. Lincoln and the loyal states took the opposite view, specifically denying the right of secession.
The seceding states made clear that a concern for the future of slavery was the immediate cause of their decision to leave the Union, but they all emphasized that the right of secession transcended slavery. That right would continue to exist, even if slavery no longer did.
Lincoln acknowledged that slavery was the trigger of secession, but he too stressed that the underlying question was the one about the relation of the states to the Union. “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery,” Lincoln wrote to Horace Greeley. “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.”
Lincoln eventually concluded that saving the Union required freeing the slaves, and he issued the Emancipation Proclamation. But the question of states-vs.-nation persisted.
It persisted even beyond the war. The Union victory at arms revealed the infeasibility of secession, but the constitutionality of state objections to federal dictates remained undecided. The Constitution as written left to the states control over most domestic matters, including voting rights, marriage laws, labor laws, education, and - crucially - slavery. The Bill of Rights, added to the Constitution shortly after ratification, checked the power of Congress, not of the states. The First Amendment, which set the tone for the others, began, “Congress shall make no law . . .” States could restrict freedom of religion, of the press and so on, and in some cases they did.
The Thirteenth Amendment, ratified in the months after Appomattox, took slavery out of state hands, forbidding it everywhere in America. But the states retained their other powers over individuals.
Until the Fourteenth 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 italics weren’t in the text, but the emphasis was unmistakable to any student of the Constitution. The federal government was reaching down into the states to enforce good behavior upon them.
The Fourteenth Amendment treated other matters. It specified that anyone born in the United States was a citizen, thereby reversing the ruling of the Supreme Court in Dred Scott v. Sandford, which said that black people were not citizens. It barred many Confederate officials from holding federal or state office, until Congress lifted the ban. It specified sanctions in the event states kept black men from voting.
But it was the rewriting of the relationship between the states and the federal government that had the greatest impact. Tellingly for the states that most objected to the rewriting - the states of the Confederacy - it was their recent actions that brought it on. Even before the Thirteenth Amendment was ratified, white Southerners began to subvert its meaning. Southern legislatures approved “black codes” that reconfigured labor contracts and vagrancy laws to reimpose slavery in all but name. So egregiously did this violate the spirit of what Union soldiers had given their lives for that Congress felt compelled to take action.
A first response was the imposition of martial law on the defeated South; a second was the Fourteenth Amendment. Here the “equal protection” clause did the heavy lifting. To this point in American history, states had been free to discriminate against disfavored groups without fear of federal intervention. Nowhere does the original Constitution speak of equality among individuals or classes of people. Careless students of history sometimes confused the Declaration of Independence, with its “all men are created equal” language, with the Constitution, but the framers of the latter knew the difference, and they deliberately refrained from promising or requiring equality. That was the business of the states.
The Fourteenth Amendment changed things. The amendment gave the federal government the responsibility to guarantee equality. To be sure, that guarantee was intermittent. After the Ku Klux Klan took control of several counties of South Carolina, Ulysses Grant as president persuaded Congress to grant him authority to employ military force against the white-robed terrorists. Grant’s campaign was successful, and the Klan was dispersed, not to regather until the 1910s.
Yet Grant understood that, Fourteenth Amendment or no Fourteenth Amendment, the army could not become a regular tool of law enforcement without endangering democracy. And white Southerners grew more subtle in their discrimination. They wrote laws that were race-neutral in language but discriminatory in practice. And the Supreme Court went along.
But only so far. The landmark case was Plessy v. Ferguson, which established the formula of “separate but equal.” Public accommodations might distinguish between blacks and whites, so long as the accommodations were equal. This formula would receive much derision, yet it wasn’t outlandish. It met the standard of the Fourteenth Amendment. The problem wasn’t the formula but its implementation. The separate accommodations soon became - as Associate Justice John Marshall Harlan predicted in his Plessy dissent - conspicuously unequal. And the high court failed to enforce its own formula. Not until 1950, in Sweatt v. Painter, did the court find that a Jim Crow institution, in this case a University of Texas law school for blacks, was unequal and therefore in violation of the Fourteenth Amendment’s equal protection clause.
As important as the Declaration’s “all men are created equal” assertion was to the theory of democracy, the Fourteenth Amendment’s “equal protection” clause was to democracy’s American practice. And that practice included the final triumph of the federal government over the states. Time after time in the twentieth and twenty-first centuries, equal protection and the subsidiary “due process” requirement became the basis for overturning state laws on race relations, education, abortion, elections, women’s rights, gun ownership, affirmative action, gay marriage and many other issues, and imposing federal standards in their place.
Some of the results - on civil rights, abortion, gay marriage - were liked by liberals and loathed by conservatives; others - on gun rights, affirmative action, corporate speech - were liked by conservatives and loathed by liberals.
But, like or loathe its consequences, both sides acknowledged that the Fourteenth Amendment had reconfigured relations between the states and the federal government. Lincoln’s idea of an undivided Union, based on national conceptions of rights and powers, had triumphed once and for all.