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