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A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments

  • J.J. Gass
  • Nathan Newman
Published: January 1, 2004

The Supreme Courts recent turn away from civil rights and toward states rights claims legit­im­acy from a famil­iar but false history: the Consti­tu­tion of 1787 care­fully preserved the states sover­eignty; Congress oper­ated for 150 years within narrow constraints on its enumer­ated powers; the courts zeal­ously policed the bound­ar­ies of proper federal action; and the half-century start­ing with the New Deal, when the Supreme Court allowed the federal govern­ment to do more or less what it wanted, was an anom­aly.

None of this is true. If there is an anom­al­ous period in the rela­tion­ship between the Court and Congress, it began shortly after the Civil War and ended with the switch in time of 1937. The Court commenced its first sustained campaign to cut back on congres­sional power by strik­ing down civil rights stat­utes passed during Recon­struc­tion. These decisions betrayed Lincoln, who had prom­ised a new birth of free­dom at Gettys­burg, and the people who enacted the consti­tu­tional amend­ments and legis­la­tion to make that prom­ise a real­ity not to mention the thou­sands of blacks slaughtered while defend­ing their rights and the millions condemned to live under Jim Crow in the wake of the Courts rulings.

Whatever else might be said of origin­al­ist construc­tions of consti­tu­tional provi­sions adop­ted in 1787, the Rehnquist Courts decisions on the New Birth Amend­ments are utterly indefens­ible as a matter of history. Like the reac­tion­ary Court of the 1870s whose infam­ous preced­ents it unabashedly cites the states-rights bloc on todays Court has struck down federal civil rights legis­la­tion enacted pursu­ant to the New Birth Amend­ments without regard for the widely under­stood mean­ing and purpose of those amend­ments at the time they were rati­fied. This paper aims to revive the memory of the New Birth Framers and their work and to debunk the claim that the Courts anti-equal­ity agenda has any support in the history of the 13th, 14th, and 15th Amend­ments.