A constitutional amendment worth celebrating (and enforcing)

[Editor’s note: North Carolinians from throughout the state will gather in Raleigh this Saturday July 28th to celebrate the 150^th anniversary of the 14^th Amendment and renew their efforts to defend and enforce it. The event (“#DefendThe14th”) will take place from 10:00 a.m.-1:00 p.m. at Pullen Memorial Baptist Church. Click here for information and free registration. The following is the latest in a series of articles that Policy Watch is publishing to promote the event and commemorate the anniversary.]

This month marks the 150th anniversary of the 14th Amendment, a landmark to be celebrated July 28 by the N.C. Commission on Racial and Ethnic Disparities in the Criminal Justice System. In recalling the amendment’s essential role in enabling the “new birth of freedom” Lincoln envisioned at Gettysburg, it’s worth remembering that its interpretation has not always lived up to its promise.

By 1900, the 14th and 15th Amendments were dead letters in North Carolina. The Reconstruction government had been brought firmly to heel, the Wilmington Massacre of 1898 having settled any notion that Blacks could govern themselves. The Constitution of 1868, an expansive blueprint for reform written by a convention that included 13 Black men, had been undermined by a revision that—by instituting poll taxes and literacy tests—circumvented the 15th Amendment to severely limit the rights of Black men to vote.

And yet some still believed.

In 1902, a Black lawyer, representing a Black criminal defendant, challenged Mecklenburg County’s use of all-white jury pools—a common practice despite contrary Supreme Court precedent. At a time when voting was beyond reach for virtually all African Americans, W.H. Green in State v. Peoples invoked the 14th Amendment to argue that the county’s all-white roster of potential jurors served to deny his client equal protection.

Green “made a hot speech on the rights of colored voters, creating the biggest kind of sensation,” noted the Asheville Citizen. “The colored people had been imposed upon long enough,” the Charlotte Observer reported him to say, “and they proposed to have freedom and their rights if they went to the extent of blood and death.” This “young and very black negro with a propensity for talk” captivated the crowded courtroom for half an hour.

As quiet descended, the prosecutor rose to suggest that Green “might want a good many things that he couldn’t get and might get what he didn’t want.” Cheers broke out. Gaveling the crowd to order, the judge denied Green’s motion.

In the N.C. Supreme Court, Green got what he wanted: a holding that an all-white jury pool was unconstitutional. The decision was written by Justice Walter Montgomery, a planter’s son who had fought at Gettysburg, the Wilderness, Spotsylvania Court House, Petersburg and Appomattox. Chief Justice Walter Clark agreed, but only because he felt bound by U.S. Supreme Court precedent

The reluctant vote of the ordinarily liberal Justice Clark speaks volumes about the way the Equal Protection guarantee was going down among white North Carolinians. Despite the dictates of the federal and now the state high courts, all-white jury pools continued to pass legal muster, on the barest of pretexts. Not until the mid-20th century did African Americans make their way into jury pools. Even today, equitable representation on juries themselves remains an elusive goal.

A more familiar yet largely consistent story is the way the state responded to Brown v. Board of Education—not with outward defiance, like other southern states, but in the “North Carolina way.” The 1955 Pupil Assignment Act removed all references to race from the school statutes, granting local boards discretion to apply race-neutral criteria in deciding who would go to school with whom.

The struggles for equity in the criminal justice system and the schools continue, amidst related debates just as critical to people’s lives: today more than ever in our lifetimes. Although the 14th Amendment was enacted to protect the rights of African Americans, its genius is that its promises are not limited to African Americans. While the rights of women, immigrants and others are also under pervasive threat, it stands as a beacon of hope, a bulwark against oppression.

Following William Hawkins Green’s remarkable victory in the N.C. Supreme Court, he argued and lost a similar case in the U.S. Supreme Court. He left the law shortly thereafter. Trained in theology as well as law, he assumed leadership in the Seventh-Day Adventist Church, where he succeeded in doubling the Black membership in five years. He traveled so extensively that he knew the train schedules for every major city by heart; his presumed cause of death was exhaustion.

With Green and countless others as inspiration, it falls to us to stay true to the task of reclaiming the 14th Amendment—amplifying with our own voices his “hot speech” for liberty and equality under the law.

Sally Greene is a former Chapel Hill Town Council member and a member of the organizing committee for Saturday’s event.