United States: Far right and Republicans attempt roll back of constitutional equal rights

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Former enslaved African Americans vote in New Orleans, 1867, during the "Radical Reconstruction" period.

By Malik Miah

May 25, 2012 – Links International Journal of Socialist Renewal -- The “Reconstruction amendments” — the 13th, 14th and 15th amendments to the United States constitution — are being targeted in many of the far-right “Tea Party” and Republican campaigns against the rights of immigrants and women, marriage equality and gay 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 Barack Obama’s mixed background and dark 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 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 businesspeople 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 labour movements to counter the ideology of the extreme right, including its racist wing. This is why this organised 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 most radical amendments ever 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 American Civil War.

The amendments were important elements in implementing the reconstruction of the south after the war. Their proponents saw the amendments 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 in 1868. It included the far-reaching radical democratic clauses that defined citizenship. It includes the clauses now in dispute by the far right concerning who is a citizen, the due process and equal protection clauses.

 “Its Citizen 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, or sharply restricted by the 1890s. Blacks were not slaves but barely third-class citizens in the south.

Behind today’s assaults

The rightist attacks on the 14th and 15th amendments aimed at reversing some of the most far-reaching rights won since the second American revolution of 1860-65. These fundamental changes, known popularly as the Civil Rights revolution, were codified into laws in the 1960s. They were followed by the victories for women’s rights and other minorities’ rights. It eventually expanded civil rights for the disabled and other social groups through affirmative action programs.

These gains for society were seen by the ruling white majority, and by many white working people, as undermining the institutional “white skin privileges” enshrined in the original US constitution -- that flawed document which included the legal institution of slavery and defined Black slaves as three-fifths of a person.

After its adoption, the seeds for popular upsurge and revolution were planted. First came the popular revolt by the people who fought in the Revolutionary War. They rose up to demand amendments now known as the “Bill of Rights”.

It took a massive Civil War to eliminate slavery and open the door to Blacks becoming full citizens, as well as forging a national capitalist ruling class.  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 gay equality. Immigration has been a wedge and division issue throughout US history.  Gays remain a divisive 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 gays from Constitutional protections. Arizona politicians have explicitly raised the issue of denying US-born children of “illegal” immigrants from having citizenship.

1954 court decision

The due process and equal protect clauses of the 14th amendment were the basis for ending Jim Crow segregation and the famous Brown v. Board of Education decision in 1954. The southern bigots and supporters of “states’ rights” opposed those constitutional amendments and fought tooth and nail to prevent their implementation after 1865. They were successful after the end of the period known as Radical Reconstruction, and it took nearly 100 years after Lincoln’s death to win the new civil rights and voting rights laws of the 1960s.

The attack on the 15th amendment is seen 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 citizen clause centres on two groups: Muslims and immigrants.

Following the September 11, 2001 terrorist attacks the first people whose citizenship rights were attacked were Muslims — whether American born, legal residents or visitors. The ideological focus of the attack was to demonise all Muslims because of their religious beliefs. The implication was 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, including criminalising Muslim charities. The justification for the vast expansion of domestic spying was tied to this discrimination and harassment of Muslims, which unfortunately is widely accepted and supported.

The second group whose citizenship rights are being undermined are 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 further open the door to naturalised citizens and legal residents being legally harassed for looking “suspicious”. The due process and equal protections clauses are openly targeted as only applying to those who look like “us” — meaning white Americans.

Democracy, for conservatives, is about power, not rights. Once again the pretext for undermining these clauses of the US constitution is “states’ rights” to regulate within state borders even if this conflicts with federal regulations -- the argument once used by the slaveholding south to defend its secession from the Union.

The heart of the 14th amendments 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 are 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 centred on the issue of marriage equality.  In 32 states where the rights of marriage equality have 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 people would still be denied the rights 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 US civil rights organisation, 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.

The president of the NAACP Benjamin Todd Jealous said afterwards, “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 gays 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 interpretation of the US constitution.  That’s why the far right opposed the expansion of rights incorporated in the 14th and 15th amendments as going against the Founding Fathers, who of course were not living when the 13th, 14th and 15th amendments were won in a civil war. (Yet this same “originalist” interpretation of the drafted constitution isn’t said to apply to the 2nd amendment regarding the right to bear arms.)

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 centre in their ideological agenda. 

The 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.

What to do

To oppose the right-wing agenda on the issues  requires a politically and intellectually assertive defence of the Civil War amendments to the US constitution. They  expanded basic civil rights and civil liberties that can’t be taken for granted. The failure to take up the battle over the proper interpretation of pro-labour 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 rooting their defence of marriage equality, as well as voting rights and other gains, in the 14th and 15th amendments of the constitution is an important shift. It broadens the possibility for united front efforts by civil rights organisations, women’s rights and gay rights groups, supporters of civil liberties and potentially the union movement to stand as one against the conservative assault.

The battle to defeat the far right must include defence of these bedrock amendments to the US constitution by all means necessary.

[Malik Miah is a member of the editorial board of the socialist magazine Against The Current.]