As the court prepares to rule on marriage equality, affirmative action and voting rights, the justices should follow Spielberg's lead and honor our Reconstruction founders and the soaring guarantees that they enshrined in our nation's charter.
Let's begin with the marriage equality cases. In enacting the Fourteenth Amendment, the Reconstruction framers chose sweeping, universal language: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." In so doing, they rejected other proposed language that would have limited the amendment to combating racial discrimination alone, choosing instead to incorporate into our Constitution the broad promise of the Declaration of Independence that "all men are created equal."
Indeed, the Fourteenth Amendment perfects the Declaration by universalizing it substituting the word "persons" for Jefferson's "men." The amendment thus provides all persons black or white, woman or man, gay or straight with a constitutional sword to combat invidious discrimination. That guarantee is the constitutional foundation for marriage equality.
Turning next to affirmative action, in Fisher vs. University of Texas, a white student is challenging UT-Austin's admissions policy, arguing that it violates the Equal Protection Clause because it allows the university to take race into account, as one factor among many, in making admissions decisions.
However, the Reconstruction framers those who wrote and helped to ratify the very clause that the challengers rely upon in Fisher themselves enacted race-conscious measures, including efforts to ensure equality of educational opportunity for African-Americans. For instance, during the late 1860s, the federal government provided land and money for more than a dozen colleges and universities that primarily served African-American students. Therefore, the Reconstruction generation, like UT-Austin, recognized that in certain contexts race-conscious measures were necessary to ensure equal opportunities to all.
Finally, turning to voting rights, Shelby County vs. Holder challenges the preclearance requirement of the Voting Rights Act a critical provision reauthorized by a near-unanimous Congress in 2006 that requires states with a history of racial discrimination in voting to get "preclearance" by the federal government of any change in voting. In Shelby County, the challengers argue that this requirement is an affront to state sovereignty.
However, the Fifteenth Amendment gave Congress sole authority to enact legislation necessary to end racial discrimination in state elections. Indeed, the text of the amendment itself provides in sweeping terms that "Congress shall have the power to enforce" its provisions "by appropriate legislation." When Congress acts to prevent racial discrimination in voting, such measures are entitled to great deference.
While "Lincoln" as great a film as it is could be the beginning of a profoundly necessary change in our understanding of constitutional history, a movie can take America just so far. Only the Supreme Court can truly give our Reconstruction founders, and the revolutionary amendments they produced, their appropriate due, and rarely have so many important cases been lined up to present ripe opportunities for the court to do so. The stakes are high, and the world is watching.
Doug Kendall is president and founder of Constitutional Accountability Center, a public interest law firm and action center in Washington, where Tom Donnelly is counsel and message director.