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July 9, 2026. Today marks the anniversary of a dramatic reworking of the US constitutional order. On July 9, 1868, Americans changed the US Constitution for the 14th time, adapting our foundational document to construct a new nation that brought the principles of the Declaration of Independ to life. They required the federal government to protect the equal rights of all American men. In 1865, the 13th Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after actor John Wilkes Booth murdered President Abraham Lincoln, white Southern Democrats had done their best to push their black neighbors back into subservience. So long as Southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union. Still led by the very men who had organized the Confederacy and made war on the United States. Northern Republican lawmakers refused to accept this caricature of freedom. There was no way they were going to rebuild Southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count black Americans as whole persons for the first time in the nation's history, giving the Southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South's ideology, they were not going to let it regrow in peacetime. Congress rejected Johnson's plan for Reconstruction, but then Congressmen had to come up with their own. After months of hearings and debate, they proposed amending the Constitution to settle the outstanding questions of the war. Chief among these was how to protect the rights of black Americans in states where they could neither vote nor testify in court or sit on a jury. To protect their own interests. Congress's solution was the 14th amendment. It took on the infamous 1857 dred Scott v. Sanford decision declaring that black men are not included and were not intended to be included under the word citizens in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures the to citizens. The 14th Amendment provides that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. The amendment also addressed the Dred Scott decision in another profound way. In 1857, Southerners and Democrats, who were adamantly opposed to federal power, controlled the Supreme Court. They backed states rights. So the Dred Scott decision did more than read black Americans out of our history. It dramatically circumscribed Congress's power. The Dred Scott decision declared that democracy was created at the state level by those people in a state who were allowed to vote in 1857. This meant white men almost exclusively. If those people voted to do something widely unpopular, like adopting human enslavement, for example, they had the right to do so. People like Abraham Lincoln pointed out that such domination by states would eventually mean that an unpopular minority could take over the national government, forcing their ideas on everyone else. But defenders of states rights stood firm. The 14th Amendment overturned that idea, recognizing the federal government's power to protect individuals even if their state legislatures pass discriminatory laws. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, it said. And it went on to say that Congress shall have the power to enforce by appropriate legislation the provisions of this article. The principles behind the 14th Amendment were behind the 1870 creation of the Department of Justice, whose first job was to bring down Ku Klux Klan terrorists in the South. Those same principles took on profound national significance in the Post World War II era When the Supreme Court began to use the Equal Protection Clause and the Due Process clause of the 14th Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s and 1970s, including the 1954 Brown vs Board of Education decision outlawing segregation in public schools, came from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures. Opponents of these new civil rights protections quickly began to object that such decisions were legislating from the bench rather than permitting state legislatures to make their own laws. They began to call for originalism, the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Borkman, an originalist who had called for the rollback of the Supreme Court's civil rights decisions, for a seat on that court. Reacting to that nomination, Senator Ted Kennedy, a Democrat of Massachusetts, recognized the importance of the 14th Amendment to equality. Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shot on the fingers of millions of citizens for whom the judiciary is and is often the only protector of the individual rights that are the heart of our democracy. At the time, Bork's supporters expressed outrage at what they insisted was Kennedy's smear campaign for surely the right wing attack on the protections of the 14th Amendment would never so completely undermine American society. And yet, in 2026, here we are.
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Letters from an American was written and read by Heather Cox Richardson. It was produced at Soundscape Productions, Dedham, Massachusetts. Recorded with music composed by Michael Mo
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