Chapter 1The Amendment That Never Was
The Fourteenth Amendment was ratified in 1868, but its story starts in the late 1700s, back when the Constitution and the Bill of Rights were being drafted. The Bill of Rights has ten amendments in it—a nice, round number. It might seem like that was intentional, but it wasn’t.
In fact, James Madison initially proposed nine amendments, including one about state governments that he considered the most important of all. Most lawmakers at the time of the founding viewed the federal government as the biggest threat to individual rights. Madison, however, believed state governments were also “liable to attack” their inhabitants’ “invaluable privileges.” He proposed an amendment that he believed would help solve that problem, but it didn’t make the final cut.
Before we explore the issues that motivated the drafters of the Fourteenth Amendment, we must first understand Madison’s lost amendment and the story it tells about the relationship between the federal government and the states—what’s called federalism.
FEDERALISM
Have you ever heard your parents mention that they have to pay both state and federal taxes? Or have you noticed that some laws are state laws, passed by state governments, while other laws are federal laws, passed by Congress? State and federal governments share power and work in parallel; they each have their own laws, constitutions, and court systems. The complicated interplay between state and federal governments is known as federalism.
The Constitution spells out specific powers belonging to the federal government. These include the right to regulate goods and services that travel between states (known as interstate commerce), the right to declare war, and the right to impose taxes. All governmental powers that are not assigned to the federal government, such as the power to make laws for public safety and to create school systems, belong to the states. And if state and federal laws conflict, Article VI of the Constitution—the supremacy clause—says that you have to follow the federal law.
States also have their own constitutions, separate and apart from the federal Constitution. State constitutions might look a lot like the U.S. Constitution, but they don’t have to.
There are also separate state and federal courts. Federal courts can hear only certain sorts of cases: cases about federal laws and cases between citizens of different states. This separation developed because federal courts were seen as better able to interpret federal law and less likely to favor citizens of one state over another. State courts, on the other hand, have what’s called general jurisdiction, which means they can hear all sorts of cases.
This messy relationship between state and federal governments is a major feature of American government. From the 1700s to today, states and the federal government have been in a tug-of-war for power—because federalism is, in essence, a compromise. Sometimes states are in control; sometimes the federal government is. Throughout this book—and this chapter in particular—the concept of federalism will arise and intersect with issues of racism and equality.
The Constitution and State Power
In 1781, late in the Revolutionary War and a century before the Fourteenth Amendment became law, America ratified its first constitution: the Articles of Confederation and Perpetual Union. The Articles were an agreement between the thirteen original states that created a central government but still respected the independence of the states. Despite the name, the Articles of Confederation and Perpetual Union were short-lived.
The Articles gave the national government very little power; there was no president, and the Congress, called the “Congress of the Confederation,” was a single legislature (which means it did not have both a Senate and a House of Representatives as it does today). Under the Articles, states were operating like their own little countries.
The Articles proved to be a problem when the end of the Revolutionary War came around. “The long, hard war had devastated the American economy,” historian Alan Taylor explains. He continues:
Roaming armies and frontier raiders uprooted thousands of people by destroying their farms, plantations, and towns. At least 25,000 Americans died in military service, usually of disease … British warships disrupted the export trade essential to prosperity. Economic historians find a 30 percent decline in national income between 1774 and 1790: a decline which they characterize as “America’s greatest income slump ever,” and an “economic disaster.”
The federal government was too weak to fix these economic woes. It needed “new powers to levy taxes and regulate interstate and foreign commerce”—which it didn’t have under the Articles.
In May 1787, twelve of the thirteen original states—all but Rhode Island—sent representatives, known as delegates, to meet in Philadelphia for something called the Constitutional Convention. (Rhode Island refused to send any delegates because it didn’t believe in giving the federal government more power.) At the convention, the fifty-five delegates planned to discuss how to recover from the war. Ultimately, they would draft a new constitution outlining a structure of government that they hoped would serve the nation as a whole.
All fifty-five of the delegates were white, and many of them were enslavers. “No known black people were involved in the constitutional debates preceding the adoption of the Constitution,” writes lawyer and author J. Clay Smith Jr. (It’s important to think about the worldview and biases of the group of people who created this document, and all the perspectives that were missing.)
Before the Constitutional Convention, James Madison had studied world governments—including ancient Greece, the Roman Empire, Switzerland, and the Netherlands—to come up with his ideal political system: a strong central government with power spread across three branches. Madison was always advocating for a stronger federal government; his time working in the Virginia state government “convinced him of the dangers inherent in the powerful state legislatures and of the weaknesses of the Articles of Confederation.” By splitting the federal government into three branches—executive, legislative, and judicial—he hoped each branch would serve as a check on the power of the others.
After four months of debate at the Constitutional Convention, this three-branch form of government was adopted, and the Constitution was born.
JAMES MADISON
James Madison
James Madison was born on March 16, 1751, the oldest son of a wealthy Virginia family. He grew up on his family’s plantation, where Black people were enslaved, and graduated from the College of New Jersey (now Princeton University), where he studied moral philosophy. Madison has been described by various historians as “scholarly, sickly, astute, and shy,” and “weak of voice.” Nevertheless, he decided to become a politician. He served in the Virginia government and joined the Continental Congress in 1780. After the Constitution was ratified, he was elected to the House of Representatives, where he drafted the Bill of Rights (more on that later). Before being elected the fourth president of the United States, he also served as secretary of state. Madison died in 1836 at the age of eighty-five.
The first two pages of the Articles. Great cursive!
Madison also had a lot of ideas that his fellow Convention attendees didn’t like. One of those ideas was the “national veto.” In 1787, Madison suggested that the Constitution should let Congress veto (reject) state laws that it believed were unconstitutional. As Madison wrote to George Washington in April 1787:
Another happy effect of this prerogative would be its controul on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals. The great desideratum, which has not yet been found for Republican Governments, seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the State. The majority, who alone have the right of decision, have frequently an interest, real or supposed, in abusing it. In Monarchies, the sovereign is more neutral to the interests and views of different parties; but, unfortunately, he too often forms interests of his own repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole Society?
In other words, Madison explained, the national veto could help the federal government prevent states from trampling on the rights of individuals. Madison viewed the federal government as a “disinterested and dispassionate umpire” that could stop the political majorities in each state from using their power to harm the minority—just as an umpire in baseball calls balls and strikes and makes sure each side is following the rules.
The other delegates at the Constitutional Convention weren’t convinced. They thought that a national veto was too drastic and that it gave the federal government entirely too much power. Keep in mind the context: The United States had just declared itself independent from England, leaving many Americans wary of putting too much power in one government and potentially creating a new monarchy. Madison was already proposing a dramatically stronger central government, and now he wanted to give that government veto power over what was happening in the states.
So the Constitution moved ahead without Madison’s national veto, and in June 1788, the document became the law of the land after it was approved by three-fourths of the states.
SLAVERY IN THE CONSTITUTION
Although the Constitution doesn’t ever actually use the word “slavery,” it makes reference to it in several places. For example, Article I, Section 9 allowed an import tax of up to “ten dollars for each Person.” (A tax is a fee charged by the government that then funds government spending.)
Article I, Section 9 also prevented Congress from banning slavery before 1808: “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” This meant that states could abolish slavery if they wanted to, but Congress couldn’t—at least not for a while.
In Article IV, Section 2, the Constitution said that a “Person held to Service or Labour in one State, under the Laws thereof, escaping into another” must be “delivered up on Claim of the Party to whom such Service or Labour may be due”—which meant that an enslaved person who escaped to a free state had to be returned to slavery.
What’s more, Article I, Section 2 said that the number of representatives a state got in Congress would be “determined by adding to the whole Number of free Persons … three fifths of all other Persons” (people who were enslaved) (italics added). This clause dehumanized people who were enslaved by refusing to count them as full people. It also gave Southern states disproportionate power in Congress, by counting enslaved people to determine the number of representatives, even though people who were enslaved could not vote for those representatives.
In all these ways, the Constitution affirmed and protected the existence of slavery—without saying the word once.
A painting depicting the signing of the Constitution at the 1787 convention in Philadelphia (by John Henry Hintermeister, 1925)
The Bill of Rights and the Lost Fourteenth
When it was first presented to the states for their approval, the Constitution didn’t contain a bill of rights; it focused instead on how the federal government would run. States had their own constitutions with their own bills of rights, so the framers didn’t think a national one was necessary. But many states were unhappy with this absence—it meant the Constitution didn’t protect individual rights against the power of the federal government. Indeed, some states said they’d ratify the Constitution only if the framers promised to later add a bill of rights.
The framers made that promise, and a year after the Constitution’s ratification, James Madison proposed a set of amendments that were similar to the bills of rights in many state constitutions. After numerous additions, deletions, and revisions from the House and Senate, ten amendments were ratified by the states and became the official Bill of Rights in the U.S. Constitution.
THE BILL OF RIGHTS
But, as we discussed earlier, Madison initially proposed some amendments that did not make it into the final version of the Bill of Rights—one of which might be considered a precursor to the Fourteenth Amendment we know today. It was the only one of Madison’s proposals that protected people from their state governments, not just the federal government. It read: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
The Lost Fourteenth
Madison proposed what we might call the “Lost Fourteenth” in order to limit what states could do to control their citizens; he worried that like the national government, state governments might also infringe on rights. “If there was any reason to restrain the Government of the United States from infringing upon these essential rights,” Madison explained to Congress, “it was equally necessary that they should be secured against the State Governments.” So while the Lost Fourteenth was less drastic than the national veto, it was aimed at the same problem.
Wait, wait, wait—what about the state’s own constitution? Didn’t we just learn that state constitutions had their own bills of rights? Why wouldn’t those be enough? As Madison put it:
I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.
Madison was saying: While some states protected these rights in their constitutions, others didn’t. And there was no harm in “double security.”
Plus, if the rights were in the federal constitution, people could sue for violations in federal courts. In explaining the need for a bill of rights in general, Madison suggested that federal courts were more objective and less swayed by local interests than state courts:
If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
For these same reasons, Madison believed the Lost Fourteenth’s restriction on state governments made it “the most valuable amendment in the whole list.”
The House of Representatives passed the Lost Fourteenth, apparently without much discussion. One representative criticized the proposed amendment, but only mildly, arguing that it would be “much better … to leave the State Governments to themselves, and not to interfere with them more than we already do.”
The amendment didn’t fare so well in the Senate. (Before a constitutional amendment can be sent to the states for ratification, it must be passed by both chambers of Congress.) Very few notes exist from the Senate debates on the Lost Fourteenth, but as Pulitzer Prize–winning historian Jack N. Rakove explains, the Senate ultimately rejected the proposal to protect “state assemblies against national encroachment.” The point of the Bill of Rights was to limit the power of the federal government, but the Lost Fourteenth seemed to be increasing the federal government’s ability to control states. Much like the national veto, the Lost Fourteenth was a no go.
Madison was displeased. In a September 1789 letter to Edmund Pendleton, a Virginia politician, Madison wrote: “The Senate have sent back the plan of amendments with some alterations which strike in my opinion at the most salutary articles.” (In this context, “salutary” means “beneficial.”) And indeed, the Senate had whittled down the list of amendments passed by the House from seventeen to twelve.
After a House-Senate committee ironed out some differences between the two versions, the twelve amendments were sent to the states for ratification. The states ratified ten of the twelve, omitting the first proposed amendment, which contained a formula to calculate the number of representatives in the House, and the second proposed amendment, which placed limitations on congressional pay raises. The remaining ten became the Bill of Rights. (Interestingly, the amendment about congressional pay raises would be ratified as the Twenty-Seventh Amendment more than two hundred years later, in 1992.)
A lithograph of George Washington, Patrick Henry, and Edmund Pendleton traveling from Virginia to the First Continental Congress in Philadelphia
* * *
The Lost Fourteenth would have protected individuals from their state governments. However, the people in power at the time were most worried about their rights being infringed by the federal government; the states, they thought, would better protect their liberty.
But let’s pause here and think about whose liberty we’re talking about: white people’s. State law at this time allowed Black people to be enslaved—no surer threat to liberty than that. When the Fourteenth Amendment was ratified in 1868, it took aim at the same issue Madison identified—protection from state governments—but it did so in the wake of the Civil War and the end of slavery. Unlike Madison’s proposed amendment, the Fourteenth was specifically intended to ensure equality for Black Americans.
Whether it ultimately fulfilled that promise, however, would be a different story.
Copyright © 2024 by Hana Bajramovic
