Jeffrey Rosen discusses the 14th Amendment with Sherrilyn Ifill, the head of the 14th Amendment Center for Law & Democracy at Howard Law School and the former president of the NAACP Legal Defense Fund, Pamela Brandwein, author of Rethinking the Judicial Settlement of Reconstruction, and Ilan Wurman, author of The Second Founding: An Introduction to the Fourteenth Amendment. They discuss the historical events that gave rise to the 14th Amendment and debate its original meaning. This conversation was originally streamed live as part of the NCC’s America’s Town Hall program series on February 10, 2025, in partnership with the Federal Judicial Center.
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Today’s episode was produced by Tanaya Tauber, Samson Mostashari, and Bill Pollock. It was engineered by David Stotz, Greg Scheckler, and Bill Pollock. Research was provided by Cooper Smith.
Participants
Pamela Brandwein is a professor of political science at the University of Michigan and professor of law (by courtesy) at Michigan Law School. She is the author of Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (1999) and Rethinking the Judicial Settlement of Reconstruction (2011).
Sherrilyn Ifill is the Vernon E. Jordan Jr. Esq. Endowed Chair in Civil Rights at Howard Law School, where she is launching the 14th Amendment Center for Law & Democracy. She previously served as the former president of the NAACP Legal Defense Fund and she is working on a forthcoming book entitled Is This America?.
Ilan Wurman is the Julius E. Davis Professor of Law at University of Minnesota. He is the author of A Debt Against the Living: An Introduction to Originalism and The Second Founding: An Introduction to the Fourteenth Amendment. His next book, The Constitution of 1789: An Introduction, is also forthcoming.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment (2020)
- Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (2011)
- Sherrilyn Ifill, “Why are U.S. courts afraid of the 14th Amendment? Because it’s radical,” The Washington Post (Nov. 23, 2023)
- Sherrilyn Ifill, “Yes, this is America: Why I’m Creating the 14th Amendment Center for Law and Democracy,” Substack (July 7, 2023)
- 14th Amendment
- Title VI, Civil Rights Act of 1964
- The Civil Rights Act of 1866
- The Reconstruction Amendments
- Brown v. Board of Education
Excerpt from Interview: Ilan Wurman examines John Bingham’s constitutional basis for the Civil Rights Act of 1866 and evolving Reconstruction-era civil rights debates.
Ilan Wurman: When John Bingham in 1866 said the Civil Rights Act was unconstitutional because of a want of congressional power to enforce the Bill of Rights against the states, what could he possibly mean? What did the Civil Rights Act of 1866 have to do with the Bill of Rights? Contract, property. Now, there were some due process rights in there, of course, to sue in courts, there was some protection of law and so on. But for the most part, the subject matter of the Civil Rights Act of 1866 is not overlapping with the subject matter of the first eight amendments. So what did he mean when he said we need a power to enforce the Bill of Rights in order to get the Civil Rights Act, which required equality in contract and property and so on. Well, it all goes back to his understanding of Article 4 of the Constitution, the privileges and immunities clause, guaranteeing the citizens of each state all privileges and immunities of citizens in the several states. He had a reading of it. This is an anti-slavery reading of that clause which required the states not only to treat interstate travelers from other states equally with their own citizens, but to treat their own citizens equally, the state's own citizens equally.
This is what they thought made various black codes in the Northern states unconstitutional. And so when he says to enforce the Bill of Rights, he also tells us what he thought the Bill of Rights included. He actually says these provisions of the Bill of Rights. And then he says due process of law and Article 4, the privileges and immunities clause, he defined as being within the Bill of Rights. The Bill of rights as the first eight amendments, sometimes referred to as the first eight amendments, but it had much broader and varying definitions at the time. So how do you get the Civil Rights Act of 1866? Well, he said these provisions of the Bill of Rights, including Article 4, and he had a view of Article 4 that required states to treat their own citizens equally. That's how you get it. And all of his statements in 1866 are consistent with that until 1871 where he did change his tune. And then, I just will invoke Garfield's sort of response to that. Look, and I may be wrong. And obviously there's a range of original, plausible original meanings. I don't deny any of that.
What I'm trying to get at is what seems to me to be the best historical understanding. And there are other historical understandings and who's right? Well, it depends on how many people we convince, I suppose, to agree with us. You can falsify certain things, but can you say this is the best reading of multiple plausible meanings? It's very hard to falsify or to prove. Really quick. On the Brown v. Board, I just wanted to, again, echo. They totally made up the concept of social rights. This is absolutely true. I have a paper that tried to go through antebellum uses of the word social rights. It was identical to civil rights. They just defined social rights to be civil rights until they got to the late 1860s when they had to implement the privileges or immunities clause of the 14th Amendment. And they tried to claw back. The Democrats tried to claw back on it. And so they said, well there's, when the Republicans said, well we don't mean that this requires social equality. The Republicans, I don't think they were saying anything new there actually. What they meant is if you strike down the anti-miscegenation laws, it doesn't mean you have to marry, you have to associate with someone of the other race.
But the Republicans never denied that public accommodations were a civil right. They never denied it. None of the Republicans did because as you said—
Sherrilyn Ifill: The centrists did.
Ilan Wurman:Some of the centrists did. Well, James Wilson, he has this ambiguous phrase where he says, well, it doesn't mean you'll have to go to the same schools and things like that. But it's not clear that he meant that schooling was not included in the Civil Rights Act. Right? And so it just seems to me. Where was I going with this?
Sherrilyn Ifill: Oh, I'm sorry.
Ilan Wurman: No, no, it's okay. I wanted to be responsive to the point. But anyway, so what they were trying to say is that public accommodations, there's these wonderful lines that say it is a civil right. When you take a train, you must associate with, to take a song, the gypsies, the tramps and the thieves along with everybody else, everyone. That's not an association. Everybody has the same right to access public accommodations. They understood that as a civil right. Was public education a civil right? Except with maybe James Wilson or which Wilson was it? All the Republicans said public education, if financed through a scheme of general taxation, was a civil right and therefore privilege and immunity of citizenship. As far as I know, the record might reflect differently or there might be disagreements. So that's what I would say.
Excerpt from Interview: Pamela Brandwein examines shifting Civil War-era coalitions and post-war debates over freedom, civil rights, and Reconstruction.
>strong>Pamela Brandwein: The easiest way to start is to be clear about the differences among the Union Coalition. And so understanding that, first of all, the Anti-Slavery Coalition, the coalition that formed for Free Free Soil as a policy, was made up of just a wide variety of factions. And among those factions were everybody from black activists who had agitated for equal property contracts, suing rights, to white supremacists who wanted the western territories for free white labor. And so there was an agreement among the Republican faction that slavery should be contained. It should not extend into the western territories with the idea that you're eventually going to suffocate it. But the objective was contested. Is the rest of the country for freedom? Is it for black equality, or is it really for white labor? And so there's that faction or there's that coalition. And then understanding the Union Coalition is also vital because once the South fired, once South Carolina fired on Fort Sumter, you have a group called the War Democrats. These are the Popular Sovereignty Democrats. They wanted western territories to decide the slavery question for themselves. And once South Carolina fired on Fort Sumter, these folks who believed in white popular sovereignty, this is Stephen Douglas, this is Andrew Johnson.
These war Democrats then joined the Union Coalition. And so once we get to Reconstruction, there's a very broad group in Congress that all supported the war because the Southern states had seceded. So everybody left in Congress supported the Union effort, but it ranged from more radical Republicans to these War Democrats. And so the agreement to fight the war just breaks down and you have multiple lines of contestation. And one of those lines was between Republicans and the old War Democrats who believed in white popular sovereignty. And they said, okay, well, the war is over. We now have formal emancipation and the South is going to renounce their war debt and they're going to say, okay, no more secession. But they believed in the black codes in the South because that's still white popular sovereignty and you have formal emancipation. So for the War Democrats, the issues of the war are over with the 13th Amendment. For the Republicans, and again, there are going to be divisions among Republicans. They said emancipation means much, much more than formal emancipation. And so you have these new arguments over what emancipation means, over what the 13th Amendment means. And those arguments unfold actually after the passage of the 13th Amendment.
And so it's in debates over the Civil Rights Act of 1866 and then debates over the 14th Amendment that you have the Northern Democrats, the old War Democrats, folks can be fighting for the Union and against all Reconstruction policy. Those are the War Democrats. And then you have the Republicans who disagree among themselves over, well, what is the meaning of civil rights? What is the meaning of freedom? And so you have arguments among Republicans over, well, is it civil rights, property contracts, suing, testifying, equal criminal penalties, this is in 1866. Then you have more radical Republicans who will say, well, freedom means more than that. It means more than equality in those rights. It means equal suffrage in 1866. And those arguments by radicals were rejected by centrists immediately, but with deep, deep, deep resistance to even the most basic equal civil rights in the South. Centrists move, they move, they expand their definition of freedom. And so yes, there's an argument over what freedom means. And that gets incorporated into arguments over what the 14th Amendment is for. Because Republicans came to understand very quickly that the 13th Amendment wasn't going to be enough, that it was already being litigated in mid-Atlantic states.
Excerpt from Interview: Sherrilyn Ifill discusses how Congress adapted the 14th Amendment in real time to address racial violence and civil rights, emphasizing that Reconstruction was not colorblind but aimed at racial equality.
Sherrilyn Ifill: We should talk about color blindness in a minute, but I think it's important to try to figure out what was the goal, what were we trying to accomplish with the 14th Amendment? And in 1868, there wasn't even really a public education system in the South. Public education is a result of Reconstruction as a result. In the South, I mean. In the North, there were some schools and very few could go to them, but there were schools in the North. The South did not have a system of public education until the Freedmen's Bureau began to create schools. That's really where it began. So thinking about whether schools would have been conceived of as part of the rights associated with the Civil Rights Act of 1866 or even the 14th Amendment at that time, is a bit of a strain because this is not the role that education played and public education played in the South, which was the focus of the amendments. And that's why Chief Justice Warren says in Brown, whatever was the situation in the 19th century, today it is, education is the very foundation of citizenship.
But when black people come and explain what is happening to them, what they have experienced as a result of Ku Klux Klan violence, mob violence throughout Alabama, Georgia, Tennessee, throughout the South, it is harrowing and horrifying. And that, of course, is the basis for the Ku Klux Klan Acts, the enforcement acts of 1870 and 1871. And the creation of the Department of Justice, by the way, to provide a federal mechanism for being able to prosecute on behalf of black people who are facing this kind of violence. I mention this because, once again, this is not a phenomenon that was fully in full flower in 1866 and 1867 when the 14th Amendment was being considered. This was something that really began to hone in and get very, very out of control in 1867, 1868. They're hearing stories back in Washington, DC This compels the creation of the statute. And I think it's important because we see a Congress, many of these are the same members who were the members who were in Congress when the 14th Amendment were drafted, are learning in real time through the course of these additional Civil Rights Acts, what is necessary to effectuate what they're trying to accomplish with the 14th Amendment.
I mean, this is why Section 5 of the 14th Amendment giving Congress the power to enforce it is so important. They're learning in real time. And the same happened in the 20th century with the Civil Rights Act of 1964 and the Voting Rights Act and so forth. These are all places where Congress is then learning about a changed or switched or even newly developed phenomenon that purports to undercut the purpose of the 14th Amendment. But to see the same members of Congress dealing with that, churning over five years and trying to make adjustments to ensure the integrity of the 14th Amendment is, I think, the story of that period. That it is not that one thing happened and then another thing happened and then another thing happened. It is that there is this dynamic happening in which, in this new world that they have created a country we've never had before. They are learning new things about what citizenship means. They are learning new things about what citizenship means. What do they know about being thrown off of rail cars or having to sit in the smoky section in the back? They don't know anything about that.
What do they know about mob and Klan violence and what it can mean to have to live in the woods for weeks, as some black people did because they were so afraid of the Klan coming to their homes. So they're learning in real time and they're making the adjustments all to effectuate the intention of the 14th Amendment. And that strikes me as considerably more important. The colorblindness piece. The colorblindness piece was, the concept of colorblindness was argued by the attorney Albion Tourgée, who litigated Plessy v. Ferguson. That's where it comes from. And then it's picked up by Justice Harlan in his dissent to Plessy v. Ferguson and now suddenly has become canon. But it's not in the 14th Amendment. And I don't think that the Reconstruction Amendments were meant to be colorblind at all. The 14th Amendment in Section 2, the punishment regime, where it purports to or suggests that states that do not allow black men to vote will have their representation reduced, is using very express terms to talk about race and gender. The Civil Rights Act of 1866 talks about people, black people having the same rights as white people. There was no concept of colorblindness during this period.
There was a concept of equality, but not the idea that you didn't notice race. So it comes from the advocacy of Albion Tourgée, who was a northerner and a brilliant civil rights lawyer who came to live in North Carolina. It is picked up by Justice Harlan in his dissent. In his dissent, when Justice Harlan talks about our Constitution is colorblind, it is immediately followed by his statement that says, but there is a race of people so different from us that we would not consider them sitting equally on a rail car with white people, and that is the Chinese. So even Harlan is not colorblind. So how in the 20th century it has become canon and it has now been enshrined as what apparently the 14th Amendment was meant to advance. I think it's just not true.
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