Excerpted From: Cheryl A. Brooks, Race, Politics, and Denial: Why Oregon Forgot to Ratify the Fourteenth Amendment, 83 Oregon Law Review 731 (2004) (Student Comments) (158 Footnotes) (Full Document)
While Oregon's attempted rescission of the Fourteenth Amendment in 1868 received widespread coverage, its reratification of the amendment in 1973 was a nonevent. It was barely mentioned in the press, and it has since been overlooked by historians and other scholars. Nor was Oregon's reratification recorded in the Historical Notes to the U.S. Code, though the state's 1868 rescission of ratification is noted. What is most important about Oregon's reratification of the Fourteenth Amendment is what was left unsaid at the time--namely, the state's veiled and troubling history of racial discrimination and, in particular, its protracted attempts to exclude African Americans and deny them equality. If we are truly to understand what this remarkable event means for Oregon's constitutional past and its future, we must read between the lines, paying close attention to what seems to have been collectively forgotten.
When societies remember and internalize their history, a common understanding of the past can work as a kind of social cement, binding a community together through shared narrative. However, some aspects of the past become inimical to modern notions of a regional or cultural identity. Such aspects of history tend to be overlooked or even suppressed, preventing any true reconciliation with the past. When this occurs with an important aspect of constitutional history it can eliminate the possibility for a reconstitution of the People. This Comment argues that Oregon's failure to face, or even recall, its history with regard to the ratification, rescission, and reratification of the Fourteenth Amendment reveals a selective amnesia when it comes to matters of race. Oregon's Fourteenth Amendment memory lapse not only serves to whitewash the state's history, but also undermines Oregon's role as a constitutional player.
The fact that Oregon's population has remained overwhelmingly white is no accident. Rather, the present character of the state reflects a past in which African Americans and other racial minorities were deliberately excluded and publicly hated as a matter of state policy and cultural ethos. Race relations in Oregon have a less familiar storyline than other states of the nation, especially those of the American South. But Oregon's policies of race-based animus nevertheless have had a devastating effect on those faced with exclusion, discrimination, and denial of civil rights. Although Oregon has developed a modern identity as a progressive Ecotopia, under the surface lies a state that, in many ways, is still at odds with the values of diversity and multiculturalism.
Part I outlines Oregon's racial politics from the time of statehood through the Civil War, along with the reasons behind the legislature's ratification of the Fourteenth Amendment in 1866 and its withdrawal of ratification two years later.
Part II describes a shift in racial politics during the 1950s and relates the unknown story of the reratification of the Fourteenth Amendment in 1973, spearheaded by Rep. William McCoy, the first African American elected to the Oregon Legislative Assembly. Although a controversy about the election of two members of the legislature had played a minor role in the withdrawal of ratification in 1868, this controversy was cited, in 1973, as the sole reason for Oregon's failure to ratify the Fourteenth Amendment, rather than the racial politics that were the true reason.
Part III argues that Oregon's selective amnesia about this history both denies and perpetuates racial animus. The century-long oversight--the fact that Oregon “forgot” to ratify the Fourteenth Amendment--is actually an accurate gauge of the white majority historical views about granting equal protection and full citizenship rights to people of color. The fact that few have wished to openly acknowledge the reasons behind the “mistake” suggests that many Oregonians have not confronted their past and, perhaps, have not fully integrated the constitutional principles of Reconstruction. Remembering and commemorating the full history of Oregon's ratification, rescission, and reratification of the Fourteenth Amendment will not only set the record straight by removing confusion still evident in the Historical Notes to the Constitution, but also open a dialogue that can lead to healing and reconciliation.
Nativism is still prevalent in Oregon. The state is divided in many ways by geography, class, race, and politics. Today, the feared “other” might be a gay man or lesbian, the most recent targets of organized animus. It took Oregon more than a century to ratify the Fourteenth Amendment. It will take longer to fully incorporate its principles.
At the very least, the record should reflect William McCoy's contribution. Oregon should seek to change the Historical Notes in the next edition of the annotated U.S. Code to record the 1973 reratification. This will reduce confusion about whether Oregon really is the only state in the union never to have ratified the Fourteenth Amendment.
The checkered history of the Fourteenth Amendment also should be told by means of a public display at the state capitol, or another prominent location. The memorial should explain why Oregon rescinded and then reratified the Fourteenth Amendment, giving the historic context without unduly focusing on the Grant County dispute. Perhaps Oregonians also should celebrate a “Fourteenth Amendment Day,” commemorating the first and primary extension of the equality principle to the states.
William McCoy should be celebrated as an Oregon pioneer. At the time of his death in 1996, the state senator was working to bring a monument honoring the late Dr. Martin Luther King, Jr., to grace the front of the Oregon Convention Center in North Portland. Others worked to bring this project to fruition after McCoy's death. It would be a fitting tribute to include a commemoration of McCoy's work on the Fourteenth Amendment as part of this monument.
Third-year law student, University of Oregon School of Law.