Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the world.

[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.

What is the relationship between Reconstruction and the Founding? Conventional wisdom has it that Reconstruction was a fulfillment of Founding ideals. The Founding Fathers, on this account, believed in the ideals embodied in the Fourteenth Amendment—indeed, they stated those ideals in the Declaration of Independence. Because of the institution of slavery, however, they were unable to put those ideals in the Constitution written in 1787. And so the promise of the Declaration went unfulfilled for almost a hundred years, until the Reconstruction Congress wrote it into Section One of the Fourteenth Amendment. Reconstruction marked an enormous change in our constitutional order, the received wisdom acknowledges—we could call it a Second Founding. But the Second Founding is an act of continuity, not revolution: it vindicates the ideals of the first. It represents the triumph of true American values over the deviant institution of slavery and the Confederate society that rejected the principles of the Declaration. Founding America wins the Civil War and is redeemed by its victory.

Or maybe not. The conventional story outlined above, I will argue, is confused in many ways. Most fundamentally, it misunderstands the relationship between Reconstruction and the Founding. Rather than a realization of Founding ideals, Reconstruction is better understood as a rejection of them. Rather than the vindication and triumph of Founding America, the Civil War and Reconstruction are its repudiation and defeat. Founding America did not win the Civil War; it lost. It was not redeemed by Reconstruction; it was destroyed. And while there is some room for pride at the achievements of Founding America, what true patriotism demands of us is pride in its destruction.

“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.”

A White police officer pins his knee against a Black man’s neck. The Black man lies prone. He says he can’t move. He says he can’t breathe. He says he’s through. He pleads for his mama. He moans, gasps, and writhes. Blood runs out of his nose and mouth. After eight minutes and forty-six seconds, George Floyd is dead.

Videos of the killing went viral. All four of the Minneapolis Police Department officers who arrested Floyd for allegedly using a counterfeit $20 bill at a convenience store were fired. Derek Chauvin—who held his knee to Floyd’s neck—was initially charged by the Hennepin County Sheriff’s Office with third-degree murder and second-degree manslaughter with culpable negligence. Minnesota Attorney General Keith Ellison then announced that Chauvin was being charged with second-degree murder and that Tou Thao, Thomas Lane, and J.A. Keung—the cops who stood by while Chauvin killed Floyd—were being charged with aiding and abetting second-degree murder. On April 21, 2021, Chauvin was convicted on all counts.

The newest Associate Justice of the Supreme Court of the United States, Ketanji Brown Jackson, wasted very little time. The day after she was sworn in as an Associate Justice, she set her sights clearly and directly on the prevailing orthodoxy that reigns over the Court’s race jurisprudence. The case was Allen v. Milligan. The plaintiffs, Black voters, sued the state of Alabama alleging that Alabama’s congressional district map diluted their votes in violation of section 2 of the Voting Rights Act of 1965. Alabama responded that Section 2 was unconstitutional because it compelled the state to take race into when apportioning political power. Race conscious decision-making by the government, Alabama argued, was inconsistent with the colorblind command of the 14th Amendment’s Equal Protection Clause.

As the last inquisitor in the last round of questions before Alabama’s solicitor general would leave the rostrum, Justice Brown Jackson flipped the script. She confessed to being “a little confused” as to why Alabama thought the VRA had to be interpreted in a race-neutral way to be consistent with the Constitution. “[G]iven our normal assessment of the Constitution,” she asked, “why is it that you think that there's a Fourteenth Amendment problem?” More specifically, she continued, we should not assume that “just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought.”