First, recognize that we have been here before. This country has died and been made over at least twice. The first time was with the passage of the Reconstruction Amendments: the Thirteenth, which ended slavery; the Fourteenth, which created birthright citizenship; and the Fifteenth, which prohibited racial discrimination in voting. The Fourteenth Amendment alone was a revelation. It was created to ensure citizenship for Black people, but in the process it promised something that existed nowhere else in the Western world: if you came to this country and had a child here, your child would be a citizen from the moment they were born. It established that anyone is entitled to due process and equal protection under the law. And it included powerful enforcement clauses. Any state that interfered with the voting rights of men, “except for participation in rebellion, or other crime,” one section stipulates, would have its “basis of representation…reduced in the proportion” to the number of people it had disenfranchised.
These three amendments were designed to create a new nation. When we talk about the framers, we talk about Hamilton and Madison and Jefferson and Washington, but we should also talk about the framers of the new America after the Civil War: John Bingham and Charles Sumner and Frederick Douglass and many others who envisioned a nation in which equality and justice would be the standard. The authors of these new amendments were explicit about who would have the power to protect the rights they promised. All three Reconstruction Amendments contain almost identical provisions to the effect that “Congress shall have power” to enforce their guarantees “by appropriate legislation.” That’s how we ended up with the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These amendments, taken together, amounted to an opportunity to reset the country.
That opportunity was stolen by white supremacist violence; by the Supreme Court, which turned its back on the Reconstruction Amendments in rulings including US v. Cruikshank (1876), the Civil Rights Cases of 1883, and Plessy v. Ferguson (1896); and by Congress, which for over sixty years after Plessy sat on its hands, passed none of the civil rights laws the Reconstruction Amendments authorized it to, and remained mute when the Supreme Court stripped power from the civil rights statutes it had passed immediately after the Civil War. Congress awakened again only in the second half of the twentieth century, under pressure from a growing civil rights movement.