Taking it back.

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Black Lives Matter Reclaims the 14th Amendment

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Black Lives Matter, the activist movement that began in 2013, focuses on violence against African-Americans -- perpetrated not only by the police but also by private vigilantes. Its central goals are to prevent such violence and to hold people accountable when it occurs. 

Its supporters proclaim that this is something new, “not your grandmamma’s civil rights movement.” Maybe so. But it may well be your grandmamma’s grandmamma’s civil rights movement. Black Lives Matter taps into an often forgotten, but nevertheless defining, element of our constitutional heritage. 

After the Civil War, the nation ratified the 14th Amendment, much of which adopts phrases from the original Constitution and Bill of Rights. But one line was startlingly new: “nor shall any state . . .  deny to any person within its jurisdiction the equal protection of the laws.” 

Here’s one way to understand the central meaning of the equal protection clause: Black lives matter. 

Nowadays, the idea of “equal protection” is understood as a broad prohibition on discrimination. But the clause refers not to equality in general but specifically to “equal protection.” It was conceived as a direct response to the states’ failure to prevent private and public violence against the newly freed slaves. As summarized more than 20 years ago by the great constitutional scholar David Currie, the clause means that “the states must protect blacks to the same extent that they protect whites: by punishing those who do them injury.” 

This idea can be found throughout the post-Civil War debates. Michigan Senator Jacob Howard, who served on the Joint Committee on Reconstruction, explained that the 14th Amendment “prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” 

Howard added, “Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law?” 

Pennsylvania Senator Edgar Cowen spoke similarly: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” 

On the House side, Pennsylvania’s Thaddeus Stevens, co-chairman of the Reconstruction Committee, explained, “Whatever law protects the white man shall afford ‘equal’ protection to the black man. … Now different degrees of punishment are inflicted, not on the magnitude of the crime, but according to the color of the skin.” 

Indiana Governor Oliver P. Morton, a close ally of Abraham Lincoln, saw things the same way: “It has happened in times past that several of the Southern states discriminated against citizens of other states, by withholding the protection of the laws life and liberty, and denying to them the ordinary remedies in the courts (be a witness, give evidence, enforce contracts, etc.) for the vindication of their civil rights.” He concluded, “hence the adoption of this provision.” 

To safeguard liberty, the post-Civil War Constitution created a duty to protect. In doing so, it drew on, and broadened, a once-familiar tradition in Anglo-American political thought, extending back to the American Revolution, which says that we owe allegiance to the government precisely because it provides such protection. 

John Adams wrote in his diary in 1765, “Are not protection and allegiance reciprocal?” In 1776, Thomas Jefferson said that “allegiance and protection are reciprocal, the one ceasing when the other is withdrawn.” Almost 100 years later, Senator William Stewart discussed the 14th Amendment in identical terms, repeating that “allegiance and protection are reciprocal.” 

The forgotten meaning of the equal protection clause exposes the palpable inadequacy of the view that if government will only get out of the way, liberty will flourish. Freedom requires protection against violence. To enjoy that protection, we need government’s presence, not its absence. 

Before he became a Supreme Court justice, Thurgood Marshall was a civil rights lawyer, perhaps history’s greatest, having helped to design the strategy that ultimately persuaded the Supreme Court to strike down school segregation in 1954. Asked whether he was demanding that the nation move too quickly, Marshall responded, “The Emancipation Proclamation was issued 90 years ago. I believe in gradualism. But 90 years is gradual enough.” 

It's now 152 years after the Emancipation Proclamation -- and 147 years after the ratification of the Equal Protection Clause. We should remember and reclaim its original promise.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story:
Mary Duenwald at mduenwald@bloomberg.net