Dying Constitutionalism and the Fourteenth Amendment

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment’s early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment’s “lost years” offer precisely the sense of tragedy that might inspire that cultural shift