The Reconstructionist Weekly: The Attack on Due Process and Equal Protection Under the Law
Then → The 14th Amendment, ratified in 1868, is one of the most transformative additions to our Constitution. Emerging directly from the progress of Reconstruction, the 14th Amendment sought to reconstruct the meaning of citizenship and equality.
Section 1 states, “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."
These guarantees directly responded to pre-Civil War judicial decisions like Dred Scott v. Sandford (1857). When Dred Scott, who had lived in free territories for years, sued for his freedom, the Supreme Court not only denied his claim but declared that Black Americans were “beings of an inferior order,” who possessed “no rights which the white man was bound to respect.” The decision stated that enslaved people were not citizens of the United States, and therefore could not be afforded protection by the federal government, making it clear that equal protection was never intended for all.
The Fugitive Slave Act of 1850 reemphasized this unequal treatment. This federal law not only permitted but required the capture and return of escaped enslaved people throughout the entire United States, even in states that had abolished slavery. The Act stripped accused fugitives of basic due process rights as they could not testify on their own behalf and were denied jury trials. Even free Black Americans lived in constant fear of false accusations and kidnapping because the law provided minimal safeguards against wrongful capture. Frederick Douglass described the Act as turning American soil into a “hunting-ground for slaveholders.”
The constitutional and legislative crises created by Dred Scott, the Fugitive Slave Act, and other endeavors such as the Kansas-Nebraska Act of 1854 that defended and expanded slavery in America emboldened the United States’ abolitionist movement, which led to the creation of the Republican Party and eventually the Civil War. The denial of due process and entrenched racial inequality within American laws had become an untenable status quo for the true defenders of democracy in America.
Following the Civil War, the architects of Reconstruction understood that emancipation alone would not be enough to overcome the profound injustices of the founding era, so the 14th Amendment was born. People like Republican Thaddeus Stevens viewed the constitutional guarantees of due process and equal protection under the law not as mere aspirations but as enforceable rights that required federal protection.
As Stevens declared when introducing the amendment, “Whatever law punishes a white man for a crime shall punish the black man precisely in the same way. Whatever law protects the white man shall afford equal protection to the black man.” This principle of equality regardless of race, color, or previous condition of servitude, represented a dramatic shift in American constitutionalism and exemplifies the lasting importance of Reconstruction today.
Now → The 14th Amendment’s promises of equal protection and due process are still critical aspects of American democracy today, yet both of them are under attack from the Trump administration. The roots of these attacks stem from either applying a narrow reading of the Reconstruction Amendments or disregarding them entirely. In many ways, today's constitutional crisis mirrors the United States’ pre-Reconstruction constitutional status quo.
This is demonstrated, most notably, by the case of Kilmar Abrego Garcia, a wrongfully deported immigrant from El Salvador who was denied due process entirely.
After living in Maryland for almost 15 years with no criminal record, Garcia was suddenly arrested and deported to El Salvador in March due to what the Trump administration admitted was an “administrative error.” Despite having been granted protection from deportation by a judge in 2019, Abrego Garcia is now imprisoned in El Salvador’s mega-prison, CECOT, a facility notorious for human rights violations.
Abrego Garcia is a legal resident of the United States, and he is married to an American citizen, and all of their children are also American citizens.
Following his wrongful deportation, the Supreme Court ruled that the Trump administration should facilitate Abrego Garcia’s return but stopped short of ordering officials to bring him back. While the President’s foreign affairs powers are implied in the Constitution, they should not supersede the explicit constitutional guarantees of due process in the Fourteenth Amendment. These are rights that extend to everyone in the U.S., regardless of legal status.
The constitutional crisis being waged between the Trump administration and the courts is a battle between the United States’ Constitution before or since Reconstruction. Are due process and equal protection under the law afforded to all people within the United States or just select groups?
The case of Abrego Garcia reflects how easily we can slip back into pre-Reconstruction patterns when certain individuals are regarded as undeserving of the law's protection. Denying Abrego Garcia due process undermines the fundamental protections that the Reconstruction Amendments established. His deportation represents a dangerous precedent where the executive branch is allowed to override the Constitution and permanently deprive individuals of rights without accountability. It is a harbinger of a return to a modern iteration of America’s divided, unjust, and less free past.