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‘We’re all part of the story’: behind Will Smith’s 14th amendment docuseries

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Chances are it is the most influential amendment to the US constitution that you aren’t familiar with. Given its impact, it is astonishing how little the 14th amendment is discussed in public life.

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Americans can’t rattle it off like the first and second amendments – but its words have fundamentally shaped the modern definition of US citizenship and the principles of equality and freedom entitled to those within the country’s borders.

Sitting at the crux of these key ideals, the 14th amendment is cited in more litigation than any other, including some of the US supreme court’s most well-known cases: Plessy v Ferguson, Brown v Board of Education, Loving v Virginia, Roe v Wade, Bush v Gore, Obergefell v Hodges. And because these noble notions are embedded in the 14th, it has the remarkable ability to generate both boundless hope (for the promises of that more perfect union aspired to in the constitution’s preamble) and crushing misery (for the failures to achieve such promises).

The new six-part Netflix docuseries Amend: The Fight for America is a deep dive into the 14th amendment. Ratified in 1868, it gave citizenship to all those born or naturalized in the country and promised due process and equal protection for all people. Amend threads the amendment through the fabric of American history, from its origins before the American civil war to the bigoted violence of the Reconstruction and Jim Crow eras, through the tumultuous years of the civil rights and women’s liberation movements, right until today’s feverish debates over same-sex marriage and immigration. The show is a journey into America’s fraught relationship with its marginalized peoples, who have fought to fully be a part of the country.

It’s heady stuff for sure, but portrayed with an eye toward educating and entertaining, employing a blend of performance, music and animation, in addition to the requisite experts and archival images. Acclaimed actors breathe life into speeches and writings of key historical figures: Mahershala Ali as Frederick Douglass, Joseph Gordon-Levitt as Andrew Johnson, Diane Lane as Earl Warren, Samira Wiley as Ruth Bader Ginsburg, Laverne Cox as James Baldwin, Pedro Pascal as Abraham Lincoln, and Randall Park as Robert F Kennedy, among many others.

Amend is infotainment expertly done, with the host Will Smith’s affable yet engaged approach gently guiding viewers through moments joyful and difficult. Smith executive-produced the series with the Emmy-winning writer Larry Wilmore, who exhibited his skill at finding humor in dark moments as the “senior black correspondent” on The Daily Show With Jon Stewart. “People just don’t know what the 14th amendment is,” Wilmore said to the Guardian. “The first, second and fifth are hogging up most of the oxygen. And yet the 14th has been the most resilient and durable. It’s doing a lot of heavy lifting, but a lot of light has not been shown on it.”

Amend helps viewers appreciate the 14th amendment’s unwavering relevance by delving first into its origins. After the Emancipation Proclamation, some 4 million enslaved people were free – but they weren’t citizens, even after fighting to preserve the union during the civil war. The 14th amendment changed that, circumscribing citizenship and providing a roadmap for formerly enslaved people to fully actualize their economic, political and familial lives. It is the first appearance of the word equal in the constitution. “In a lot of ways, our country wasn’t founded in 1776,” said K Sabeel Rahman, a Brooklyn Law School professor. “It was founded by [Ohio representative] John Bingham and Congress passing the 14th amendment because that’s the modern constitution.”

The system of labor, wealth and politics by which white southerners had defined themselves was crumbling – but they wouldn’t let it go easily. While citizens and terror groups like the Ku Klux Klan waged violence on black Americans, a popular, persuasive new medium helped propagate the mythologies of the lost cause – and it is partly why many aren’t familiar with the 14th amendment: “The former Confederacy got the final cut on the movie of civil war,” as Smith puts it, with films like Gone With the Wind and The Birth of a Nation shaping the dominant historical narrative.

Vivien Leigh and Hattie McDaniel in Gone With the Wind.
Vivien Leigh and Hattie McDaniel in Gone With the Wind. Photograph: Selzn/MGM/Kobal/REX/Shutterstock/Selzn/MGM/Kobal/Rex/Shutterstock

The gauzy fantasy of the noble civil war, coupled with supreme court–sanctioned segregation, ensured the scourge of open racism endured for another century after the 14th amendment’s passage. The 1954 Brown v Board of Education decision ruled that “separate but equal” violated the 14th’s equal-protection clause, and the Civil Rights Act of 1964 banished Jim Crow segregation. But the calls to enforce the 14th can be heard just as loudly today as in the 60s and 70s: Amend’s third episode draws a tight parallel between the non-violent activism of the civil rights movement and last year’s Black Lives Matter protests, both eschewing moderate calls for patience in favor of Martin Luther King’s “fierce urgency of now”.

“We have a set of ideals in this country, and we continue to fail to live up to them,” the activist Brittany Packnett Cunningham said to the Guardian. “Every single time the police shoot another unarmed black or brown or indigenous person, every single time an LGBTQ+ person is fired from their job or left houseless, every time immigrants are stripped of the rights that should belong to them, we are experiencing the gap between what is written and what is true. And the more we grapple with these challenging conversations, the more real we can get not just about the scale of the problem we have to fix but how exactly we can go about handling it.”

The amendment is a lodestar for all claiming the constitutional right to be treated fairly. Women, with the help of then attorney Ruth Bader Ginsburg, convinced the court in the 1970s that the 14th’s equal protection clause should apply to gender in the same way it is applied to race, both being immutable characteristics that don’t affect one’s ability.

But women’s equality depends on control over their own bodies and the choice of when and whether to have children. In 1965, the right to privacy was established, founded on the 14th amendment’s due process clause, and this new concept was applied to Roe v Wade in 1973, which legalized abortion by determining that the decision to end a pregnancy belongs to the woman, not the state. “It’s an unfolding process,” said Jeannie Suk Gersen, a Harvard law professor, of the 14th amendment extending to the right to abortion. “It may not seem obvious as a path, but that is the process of constitutional law.”

Mahershala Ali on the set of Amend: The Fight for America.
Mahershala Ali on the set of Amend: The Fight for America. Photograph: Saeed Adyani

Indeed, the 14th touches Americans’ most intimate moments. Its passage finally allowed formerly enslaved people to legally marry, and later it was applied to protect the right of interracial couples to marry in 1967 and the right of consenting adults to engage in intimate sexual conduct in 2003. Amend devotes one powerful episode to the story of Jim Obergefell, the plaintiff in the 2015 supreme court case that legalized same-sex marriage nationwide and proved that marriage equality too was at the heart of the 14th. (Obergefell admits he had no idea what the 14th amendment was before his case.)

More than 150 years after the passage of the 14th, many groups are still actively struggling to realize its promises. Immigrants have long devoted backbreaking labor to this country, only to see intolerant policies, racism and violence trample their dreams. The 1882 Chinese Exclusion Act, the only major federal legislation to explicitly stop immigration for a specific nationality, was the result of the supreme court putting fear and misguided claims of national security above the constitution’s expressly provided protections. Dehumanizing and criminalizing immigrant groups to deny their 14th amendment rights has been part of America’s playbook ever since. “We’ve just survived four years of a president who’s been openly racist and has targeted particular immigrant communities based on their race,” said Alina Das, the co-director of the Immigrant Rights Clinic at NYU’s law school. “Equality under the law is something that the immigrant-rights community is still striving for in many ways.”

After all, says Cunningham, “the biggest misconception [about the 14th] is that once it’s written on paper, the work is done. The truth, of course, is very different, and I think that Amend really pushes people to see past the veneer of American exceptionalism.” The show sadly but clearly illustrates how ignorance and hate have long fomented misunderstanding, anger, violence and inequality in America and how potently fear and intolerance have prevailed.

But it is also just as clear who has the power to make the 14th amendment’s promise of an equal society a reality: not the courts, but we the people, ordinary folks taking to the streets, sacrificing our time, privacy, and sometimes safety, and doing the courageous, often unglamorous hard work of making sure its words have meaning for all of us. “We’re all part of the story of the 14th amendment, and it’s a continuing story,” Das notes. “And the documentary does a wonderful job of inviting people to be part of the living history of the amendment.” As Smith says at the conclusion of the series: “We have to choose to bring 14 to life.”

“We’re giving an uplifting message here, not a dour or bleak one, said Wilmore. “There’s a lot of tough material here, but at the end of the day, we’re saying that this is what allowed the promise to happen – this document is the pathway for the promise.”

 

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