Rolling Back Reconstruction

Malik Miah

THE “RECONSTRUCTION AMENDMENTS” — the 13th, 14th and 15th amendments to the United States Constitution — are targeted in many of the Tea Party and far-right Republican campaigns against the rights of immigrants and women, marriage equality and LGBT rights, and voting rights for African Americans and other minority ethnic groups.

The racist tinge of many of these attacks, whether openly stated or implied, is obvious — but this does not mean that racism is more prevalent now than in the past. Rather, the smear campaign against president Obama’s mixed background and darker skin is calculated to appeal to the most extreme backward elements of the Republican Party.

“Birthism” remains very much alive, with the notorious Sheriff Arpaio in Arizona attempting to challenge Obama’s right to be on the ballot. (As of May 23, the state government announced that it officially accepts Hawaii’s record of the president’s birth there.) Yet president Obama still has the support of half the population, and African Americans are more integrated into governmental and corporate structures than ever thought possible before the Civil Rights Revolution of the 1960s.

Institutional racism remains and its ugly forms can be seen in federal and state elections. Yet a majority of Americans still “like” and respect president Obama. Educated and successful business people who happen to be Black are not an issue. Black culture is widely accepted by white America.

The fundamental problem is the absence of mass civil rights or labor movements to counter the ideology of the extreme right, including its virulently racist wing. This is why an organized right-wing minority is winning elections and rolling back many gains won decades ago.

Many issues that once seemed legally and socially settled (such as contraception) are now under fierce attack. No civil, democratic or basic liberty can be taken for granted.

The 14th and 15th amendments, in this context of right-wing determination to limit civil rights and civil liberties, are central for the public and the most vulnerable sectors of the population to defend. It is especially urgent to do so since the conservative movement wears the Constitution as its badge of “true patriotism,” even as it attempts to trample on the radical amendments made to the founding document.

Civil War Amendments

The Reconstruction (or Civil War) Amendments were adopted between 1865 and 1870, the five years immediately following the Civil War. (See Derrick Morrison’s review of the book Marx and Lincoln in this issue of ATC for some background on what a revolutionary upheaval this was.)

The amendments were important elements in implementing the reconstruction of the South. Their proponents saw them as transforming the United States, from a country that was in Abraham Lincoln’s words “half slave and half free” to one where the constitutionally guaranteed “blessings of liberty” would be extended to the entire male populace, including former slaves and their descendants.

The 13th amendment was proposed and ratified in 1865. It abolished slavery. Economically devastating to the old ruling class of the South, abolition made it possible for a modern, unified capitalist class to rule the country.

The 14th amendment was proposed in 1866 and ratified two years later. Its far-reaching radical democratic clauses define citizenship. These clauses are now disputed by the far right.

“Its Citizenship Clause,” says Wikipedia, “provides a broad definition of citizenship that overruled the Dred Scott v. Sandford ruling by the Supreme Court (1857) that had held that Blacks could not be citizens of the United States.

“Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.

“Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in United States education. In Reed v. Reed (1971), the Supreme Court ruled that laws arbitrarily requiring sex discrimination violated the Equal Protection Clause.”

The 15th amendment was proposed in 1869 and ratified in 1870 under the presidency of Ulysses S. Grant. It grants voting rights regardless of “race, color, or previous condition of servitude.”

This was the most important immediate change and battleground. The old Southern rulers knew slavery was dead forever, but how much the freed slaves could become equal was tied to the right to vote and to be elected to office.

These initially won gains would be later overturned through violence and by law, and by the 1890s had been sharply restricted. Blacks were not slaves but barely third-class citizens in the South.

Bigots and supporters of “states’ rights” opposed those Constitutional amendments and fought tooth and nail to prevent their implementation. The end of Radical Reconstruction signaled their victory. It took nearly 100 years after Lincoln’s death to overthrow Jim Crow and win the civil rights and voting rights laws of the 1960s.

Behind Today’s Assaults

The Civil Rights Revolution resulted in codifying anti-discriminatory legislation and affirmative action programs. This was quickly followed by victories for women’s rights and other minorities’ rights. The struggle expanded society’s understanding of civil rights to include the disabled and other social groups.

But all these gains were seen by the ruling white majority, and by many white working people, as undermining the institutional “white skin privileges” enshrined in the original  U.S. Constitution — that flawed document which included the legal institution of slavery and defined Black slaves as three-fifths of a person.

It took a massive Civil War to eliminate slavery and open the door to Blacks becoming full citizens. It would take future extra-legal actions (from sit-ins to urban rebellions) to expand the original intent of the Constitution by integrating other minorities and women as legal citizens with the right to vote and hold office.

Today the battle is over immigrant rights and LGBT equality. Immigration has been a wedge issue throughout American history; equality for gays and lesbians remains a dividing issue for all ethnic groups.

The battles over civil rights, voting rights, marriage equality and immigrant rights are rooted in the 14th and 15th amendments.  Not surprisingly, many conservatives seek to reinterpret those amendments to exclude undocumented (and in some cases legal) residents and the LGBT community from Constitutional protections. Arizona politicians have even explicitly raised the issue of denying U.S.-born children of “illegal” immigrants from having citizenship.

We can see an attack on the 15th Amendment in the new voter identification laws pushed mainly by Republican-controlled state legislatures. These laws aim to suppress voting by ethnic minorities, students and elderly citizens.

The fact that “states’ rights” doctrine allows different standards means that voter suppression is possible — just as it was used in the South under Jim Crow segregation to deny African Americans and other minorities the right to vote.

Although the Obama administration is finally pushing back under the Voting Rights Act to stop some of the worst state laws, the refusal of the Democratic Party to enact national standards that supersede states’ rights shows that both major parties allow this corrupt system to persist.

Immigrants and Muslims Targeted

The most recent attacks on the 14th Amendment’s Citizenship Clause centers on two groups: Muslims and immigrants.

Following September 11 the first people to be vilified were Muslims — whether American born, legal residents or visitors. The ideological focus was the demonization of all Muslims because of their religious beliefs. The implication is that “Muslim” equals “potential terrorist.”

The Patriot Act gave law enforcement agencies the opening for profiling and harassing those with Muslim-sounding names or of the Islamic faith. This even included criminalizing Muslim charities. The justification for the vast expansion of domestic spying is tied to this discrimination and harassment of Muslims, which unfortunately is widely accepted and supported.

The second group where the Citizenship Clause is being undermined centers on immigrants from Mexico and Latin America. Laws in Arizona, Alabama and other states attacking so-called illegal immigrants are aimed directly at the 14th Amendment. They open the door to naturalized citizens and legal residents being legally harassed for looking “suspicious.” The Due Process and Equal Protections clauses are seen as only applying to those who look like “us” — meaning white Americans.

Democracy, for conservatives, is about power, not rights. The pretext for undermining these clauses of the U.S. Constitution is “states’ rights” — the argument once used by the slaveholding South to defend its secession from the Union. They claim they need to regulate within their state borders even when this conflicts with federal regulations.

The heart of the 14th Amendment is the three clauses cited and the meaning is clear: civil or human rights should not be overturned by state law nor, for that matter, subject to referendum vote.

The fact that the voices of minorities can be drowned out in Alabama and Arizona, based on the false belief that the rights of minorities can be dictated by the tyranny of the majority, is a clear violation of the Constitution. Basic civil and human rights should never be subject to the ballot.

Marriage Equality

The other issue where the 14th Amendment clauses are under attack regards gay and lesbian rights. The attack is centered on the issue of marriage equality.  In 32 states where the rights of marriage equality has been on the ballot, it is has been voted down, most recently in North Carolina.

If segregation laws had been allowed on the ballot in the South, Black would still be denied the ability to vote and legal equality. The Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. Each vote on marriage equality is a violation of a basic civil rights and the Constitution.

The largest civil rights organization, the NAACP, at its May Board of Directors meeting, voted to endorse marriage equality as a basic civil right. It had never done so before. It is not a surprise that it came after president Obama spoke in support of marriage equality.

Benjamin Todd Jealous, president of the NAACP, explained, “Civil marriage is a civil right and a matter of civil law. The NAACP’s support for marriage equality is deeply rooted in the Fourteenth Amendment of the United States Constitution and equal protection of all people.”

Jealous later pointed out how it was once illegal in most states to have interracial marriages. It took federal court action to end that. (Obama so far sees marriage equality as an issue for individual states, which the NAACP and others reject.)

The NAACP’s decision is an important stance, since many African Americans oppose gay marriage equality on moral and religious grounds. A majority of Blacks voted to ban marriage equality for the LGBT community in California by supporting Proposition 8. Those votes were key to its passage. The same was true in North Carolina in a May vote that added the ban to its state Constitution.

The far right, on the other hand, sees all civil rights as violations of their narrow “originalist” interpretation of the U.S. Constitution. Of course the Founding Fathers were not living when the 13th, 14th and 15th amendments were won through a civil war.

Extremist conservative and libertarian movements opposed the underlying interpretation of laws based on the amendments that expanded rights beyond white men  (“attacks on free enterprise” as they see it). It is not an accident that the broadside attacks on immigrant rights, Muslim and the “war on women’s rights” are front and center in their ideological agenda.

The Ryan budget adopted by the House Republicans, entirely aimed at shifting more wealth away from the social safety net from the poor and working classes to the investor class and super rich, is a natural complement to rolling back the expansion of political and social rights.

To oppose the right-wing agenda on the issues requires a politically and intellectually assertive defense of the Civil War amendments to the United States Constitution. They expanded basic civil rights and civil liberties, and that can’t be taken for granted. The failure to take up the battle over the proper interpretation of pro-labor and pro-civil rights amendments is to leave the ideological terrain to the far right.

The fact that the NAACP and other groups are now supporting marriage equality for the LGBT community is an important shift. It broadens the possibility for united front efforts by civil rights organizations, women’s and gay rights groups, supporters of civil liberties and potentially the union movement to all stand as one against the conservative assault.

The battle to defeat the far right must include defense of these bedrock amendments to the United States Constitution by all means necessary.

July/August 2012, ATC 159