May 08, 2017

Experts discuss the transforming power of the 14th Amendment at ABA Law Day event

Distinguished scholars joined American Bar Association leaders for a May 1 panel entitled, “The 14th Amendment: Transforming American Democracy?”

Panelists discuss the history and significance of the 14th Amendment during the Leon Jaworski Public Program in Washington (photo credit: Lisa Helfert)


Part of the ABA’s Law Day activities, the 17th Leon Jaworski Public Program in Washington, D.C., examined issues related to the 14th Amendment, particularly its historic relevance and purpose.

Laura Edwards, history professor at Duke University, discussed the development of the 14th Amendment.

Video of the 17th Leon Jaworski Public Program is available for viewing here.

“We usually think of the 14th Amendment as something white guys in Congress passed,” said Edwards, noting that while it may have been framed by white lawmakers in Washington, it was actually informed by a broad range of people – including African Americans and women.

She shared the example of debates among former slaves in Tennessee before the Civil War who held discussions about the Constitution and the ways it limited them that spurred action on the 14th Amendment.

Although Tennessee had outlawed slavery as a condition to be readmitted to the union in 1865, the state constitution still restricted rights on the basis of race. Freed slaves in the state, including those in the Tennessee Freedman’s Bureau, questioned how Tennessee could restrict the rights of people and asked for the federal government to override the restrictions.

The 14th Amendment was passed by Congress in 1866 and adopted in 1868.

“So, the 14th Amendment needs to be understood in that context: it is a legal heritage that should be shared by all Americans more broadly, not something that has been handed to them from above by lawmakers in Washington.”

Roger L. Gregory, chief judge of the United States Court of Appeals for the Fourth Circuit, talked about the 14th Amendment in relation to a 1940s U.S. Supreme Court case, Shelly v. Kraemer, which originated in St. Louis, Mo.

Linda Klein

Also on Law Day, ABA President Linda Klein joined a panel discussion at the Ceremonial Courtroom in the Historic Courthouse of the U.S. District Court for the District of Columbia with Chief Judge Anna Blackburn-Rigsby, D.C. Court of Appeals; Chief Judge Robert E. Morin, D.C. Superior Court; and Annamaria Steward, president, D.C. Bar; about the history and relevance of the 14th Amendment.

A video of the program is available here.

The case centered on the court enforcement of the use of private agreements, which in this case applied to restrictive covenants that held that no one other than persons of Caucasian race could ever live in, own or lease a property.

Gregory said the courts had to enforce the restrictive covenant.

But the Supreme Court held that the courts could not enforce racial covenants on real estate because such covenants violate the equal protection clause of the 14th Amendment. “The chief justice [said], ‘No, these are not just private contracts. You are enforcing a law that takes away the very idea of enjoying property and using the court to sanction it,’ ” Gregory said.

Gregory added that the opinion was personal to him because in 1981 he and his wife bought their first home in Richmond, Va., and he has often thought about the people who never had a chance to live in the home or own it, “even if they could afford it.”

Besides Edwards and Gregory, other panelists included Daniel R. Ortiz, law professor and director, Supreme Court Litigation Clinic at the University of Virginia School of Law; and Michael Tigar, professor emeritus, American University Washington College of Law and Duke Law School. Jeffrey Rosen, president and chief executive officer, National Constitution Center, and professor at the George Washington University Law School, served as moderator.

”The 14th Amendment: Transforming American Democracy” was sponsored by the ABA Division for Public Education. For more information and resources on Law Day and the 14th Amendment, click here.

To recap Law Day activities, go to #ABALawDay.