America’s forgotten founders

No one can deny the starring role that James Madison, Alexander Hamilton, Benjamin Franklin, Thomas Jefferson and other leading lights played in America’s constitutional founding. They launched history’s greatest project in democracy and will forever be remembered for setting alight the path to liberty.

So who could fault the Supreme Court of the United States for looking to those towering statesmen to make sense of the United States Constitution? After all, there is no better compass than the founding fathers to point the way to the true meaning of the rights and liberties enshrined in the Constitution.

Or is there?

The challenge of living with a written constitution is to strike the proper balance between respecting the founding political vision and adapting to evolving social norms. Finding the right equilibrium is difficult because adhering too rigidly to the founding vision suffocates the possibility of accommodating changing sensibilities.

Few can resist the siren song of the sacred, almost scriptural, voice of the founding fathers. The Supreme Court is no exception—and that is precisely what threatens to stunt America’s continuing evolution toward a more just, more equal, and more perfect union. The Court’s narrow focus on America’s constitutional founding fathers obscures the importance of America’s second founding.

There have been two Americas since the country’s constitutional founding. Out of the devastation of the Civil War emerged a new republic. The United States was born anew under the banner of the Fourteenth Amendment to the United States Constitution, a revolutionary constitutional amendment that has forever transformed the nation.

The beauty of the Fourteenth Amendment is seen in both its text and its effect. The actual text of the Fourteenth Amendment is majestic in and of itself insofar as it promises due process and equal protection under law. But its larger and more powerful meaning is evident only in its effect, which has been to change the meaning of the entire Constitution.

Here is why: the Fourteenth Amendment protects the freedoms and liberties listed in the Bill of Rights against transgressions by state governments.

Prior to the Fourteenth Amendment, the Bill of Rights constrained only the federal government. States could violate the civil and political rights the Bill of Rights purported to preserve. The consequence was to diminish those rights into no more than elusive hopes.

The Fourteenth Amendment made the Bill of Rights a charter of real rights with real bite against both the federal government and its state counterparts. What was therefore once a document of largely illusory rights cloaked in the language of federalism became a national pledge of individual and minority rights that have made America a citadel of democracy.

But that transformation did not happen on its own. It came only with the blood of hundreds of thousands who fought to turn the wrongs in America into the rights that now define it. In that sense, America owes its second founding to those who gave their lives in Gettysburg, Hardin County, Fort Henry, Vicksburg and elsewhere along the road to freedom. In a more specific way, America owes its second founding to the founders of the second America: the framers of the Fourteenth Amendment.

Just as the Supreme Court looks to the intentions of the constitutional drafters to uncover the meaning of the original Constitution, the Court should also look to those who wrote and inspired the Fourteenth Amendment to understand the meaning of today’s modern Constitution.

Frederick Douglass, Harriet Beecher Stowe, John Bingham—these and other draftspersons and drivers of the Fourteenth Amendment are Americans as great as the founding fathers. Only by learning from them may the Court help make real the promise of liberty and equality that America’s second founding augured for the nation and its people.

The Supreme Court would therefore do well to expand its sphere of constitutional authority beyond Madison, Hamilton, Jefferson and other founding fathers to also include America’s forgotten founders.