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In the next few months, the Supreme Court will issue a spate of potentially landmark rulings on the meaning of the Reconstruction Amendments. In Louisiana v. Callais, currently the earliest-heard case remaining to be decided on the court’s docket, the justices will rule on an incredibly important voting rights case about race and redistricting that conservatives hope will significantly undermine the Voting Rights Act. In Little v. Hecox and West Virginia v. B.P.J., meanwhile, the court confronts whether the 14th Amendment’s universal guarantee of equal protection safeguards transgender women and girls who seek to play on sport teams and clubs. Last, but certainly not least, in Trump v. Barbara, the court will decide the lawfulness of the Trump administration’s frontal assault on the constitutional promise of birthright citizenship.

In each of these upcoming rulings, the Supreme Court cannot do justice to the Reconstruction Amendments without reckoning with the ways Black Americans shaped these transformational amendments and the principles of freedom, equality, and multiracial democracy they guarantee. Yet when the Supreme Court discusses the text and history of the Reconstruction Amendments, it generally omits this part of the story, instead telling a story of what white men—predominantly white congressmen who passed the Reconstruction Amendments and contemporaneous landmark federal legislation—intended in fundamentally altering the Constitution. This erases the critical role Black Americans played in their liberation struggle and the making—and meaning—of the Reconstruction Amendments.

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As I explain in a forthcoming article that will be published next year in the Stanford Law Review, during the years the 13th, 14th, and 15th amendments were being written, debated, and ratified, Black Americans from every part of the country held conventions to fight for their rights and contest the racial subjugation and oppression they continued to experience. In the South, formerly enslaved Black Southerners assembled for the first time ever, exercising rights they could not have while enslaved. From 1864 to 1869, many thousands of Black Americans gathered in more than 50 Black Conventions. Even more signed petitions, some over 50 pages in length, demanding equal citizenship. With the possibility of radical constitutional change on the table for perhaps the first time since the nation’s founding, Black Americans led a movement to demand “our full measure of citizenship, under the broad shield of the Constitution.”

Offering a bold reading of the Declaration of Independence, Black Conventions that met during the early years of Reconstruction insisted that Black Americans were equal citizens entitled to be treated with respect and dignity and protected from harm. They fought for a long catalog of rights: their right to bodily integrity and their right to education, and their right to vote and their right to serve on juries, and they demanded that they be treated as equals across civil society, urging an end to all the ways “the strong wall of prejudice . . . has obstructed our pursuit of happiness.” Seeking an end to forced labor, they demanded economic justice and the right to enjoy the fruits of their labor. Describing the horrors of human bondage and continuing racial subjugation they experienced, Black Americans pushed white America for a robust understanding of freedom and equal citizenship, refusing to settle for weak guarantees that would relegate those formerly enslaved people to a second-class, subordinate status—what Frederick Douglass called an “emasculated citizenship.” Their claims, amplified by the press and discussed in the halls of Congress, were a critical piece of the public debate over how to vindicate principles of freedom and equality that had been betrayed by the institution of slavery.

The Black struggle for voting rights perhaps best exemplifies how Black activism was critical to the formation of the Reconstruction Amendments. Initially dismissed by many white Americans as too radical, Black Conventions during Reconstruction made the right to vote central to freedom, insisting that it was essential to their protection. They argued that in a nation divided along racial lines, freedom was an impossibility without the right to vote. Against the conventional wisdom that civil rights were fundamentally different from political rights, Black Americans insisted that both were vital to make real America’s most cherished constitutional ideals. Their arguments helped convince congressional Republicans to push for the 15th Amendment, embedding in our national charter for the first time the idea that the right to vote is essential to a functioning democracy.

Black voting rights proved critical to the ratification of the 14th and 15th amendments. Thanks to the passage of the Reconstruction Act of 1867—which swept away prior ex-rebel governments and required former Confederate states to give Black men the ballot—the make-or-break votes to ratify came from new Southern state governments chosen in elections in which Black men turned out in record-breaking numbers. In this way, Black Americans were responsible for the ratification of the 14th and 15th amendments. Given this history, Black constitutional understandings should loom large in any account of the original public meaning of the Reconstruction Amendments. History shows that Black Americans were not only a part of the public, but a particularly critical one.

Will the Supreme Court tell any part of this story in its upcoming rulings? The odds would seem low based on the court’s past track record. Shamefully, the court has never cited any Black figure from Reconstruction—not even Frederick Douglass—in a majority opinion.

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That said, just last term, in her dissenting opinion in Medina v. Planned Parenthood South Atlantic, Justice Ketanji Brown Jackson called for a “broader” and “more inclusive” history, and in recent years, both Jackson and Justice Clarence Thomas have drawn on the work of the Black Conventions of the Reconstruction era. Indeed, a number of amicus briefs filed in the blockbuster cases now awaiting decision draw on the work of the Black Conventions, underscoring how Black Americans fought for birthright citizenship, demanded the right to vote as the ultimate form of protection, and attacked the insidious role prejudice plays in producing inequality. From this perspective, the time may be ripe for one or more justices to make the case that truly paying heed to the Constitution’s text and history requires a more inclusive history that includes the work of the Black Conventions. There is no better time than the present for the Supreme Court to get this part of our constitutional story right.

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Ketanji Brown Jackson

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