Incorporating Equality: The First 150 Years of the Fourteenth Amendment
Does history matter to the future of the Fourteenth Amendment
The Fourteenth Amendment was proposed by Congress in 1866 to establish a new framework of law for a nation rebuilding from war and the abolition of chattel slavery. On July 19th of that year, Tennessee’s state legislature approved the Amendment, the first in the defeated Confederacy and the third in the nation to do so. Over the next 150 years, the application and enforcement of the Fourteenth Amendment reconstructed the course of American history and law — and in ways the framers and legislators of 1866 could not have foreseen. In the twentieth century the evolving legal doctrine of incorporation transformed it into a vehicle to expand the application of the Bill of Rights and thereby alter the historic relationship between individuals and their government. Through enforcement of the Equal Protection Clause, the Amendment’s reach has grown far beyond its initial post-slavery context to protect other groups on the margins—defined by their gender, sexuality, poverty, or alienage—to bring them into the fullness of American identity and citizenship.
This symposium marks the 150th Anniversary of Tennessee’s landmark approval of the Fourteenth Amendment by bringing together some of the nation’s leading historians, constitutional scholars, lawyers, and judges to reflect on the Amendment’s future in light of its past. Our inquiry considers the debates between Congress and President Andrew Johnson, the factors leading Tennessee to ratify the Amendment, and how the history of its origins, ratification, and enforcement has shaped the life of the Amendment. How does an understanding of the Amendment’s history inform the principles of incorporation and equal protection today? How have interpretations of those principles expanded over time? How do judges apply an Amendment so tied to an historical moment to contemporary conditions? Is the Fourteenth Amendment the completion of Madison’s “absolute truth”: that individual liberty is predicated on the “perfect equality of mankind”?