Before Barack Obama's election last week, speculation about the President-elect's future legal agenda was rampant. Prof. Stephen Calabresi, the co-founder of the Federalist Society, as well as other prominent conservatives claimed that Obama would seek to redistribute property, taking out of context a 2001 interview in which Obama discussed the role of courts. But that is not where Obama's legal legacy likely will, or should, lie.
As President, Barack Obama will have the opportunity to reshape our nation's commitment to liberty and equality, first inscribed in the Declaration of Independence and then in the Bill of Rights and in the Reconstruction Amendments that secured liberty and equality to all Americans. Abraham Lincoln, one of Obama's heroes, fought the Civil War to secure "a new birth of freedom," and Lincoln's famous words will be President-elect Obama's inaugural theme.
Unfortunately, the Reconstruction Amendments, particularly the Fourteenth Amendment, have never gotten their due. Shortly after their passage, a hostile Supreme Court severely limited the most important provisions of the Fourteenth Amendment, and these cramped precedents still dominate the legal landscape. Tomorrow and Friday, some of the country's finest legal scholars and lawyers will meet in Philadelphia to discuss how to recover the text and history of the Reconstruction Amendments.
The conference, entitled The Second Founding and the Reconstruction Amendments, was convened by the American Constitution Society and is being co-sponsored by the Constitutional Accountability Center. It will focus primarily on the immortal words of the Fourteenth Amendment, which sought to write into our Constitution Lincoln's promised "new birth of freedom" and are at issue in many of the most contested cases before the Supreme Court.
Like the Declaration of Independence Lincoln invoked at Gettysburg, the Fourteenth Amendment provides rock-solid protections for liberty and equality. In unmistakable words, it guarantees citizenship to all Americans as their birthright, protects all the fundamental rights of citizens, forbids discrimination and subordination, and gives Congress broad power to protect liberty and equality. Over two days, scholars at the conference will take a comprehensive look at the text and history of all of these critical constitutional protections.
Many of these guarantees have never been given their full scope, and others are subject to constant attack:
Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.
The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.
Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.
Here is an agenda for Barack Obama -- secure "a new birth of freedom" for the 21st century, push the Supreme Court to enforce the text and history of the Reconstruction Amendments, and nominate Justices who will do the same. Hopefully President-elect Obama and his team of legal advisors will pay close attention to the ideas that will come out of this week's Second Founding conference.
This post was written by Doug Kendall and David Gans, Constitutional Accountability Center's Human and Civil Rights Program Director. For more analysis of how the Constitution favors progressives, visit Constitutional Accountability Center's blog, Text and History.
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