By Theodore Shaw
April-June 2018 Issue of Poverty & Race
This year marks the one hundred and fiftieth anniversary of the Fourteenth Amendment to the Constitution of the United States. As originally written by the Founding Fathers, the Constitution was deeply flawed by its compromises with slavery. From the day it was adopted, a cataclysmic struggle over the issue was inevitable. The reckoning came in the form of a great and terrible Civil War that literally and figuratively scarred and changed the American landscape. Coming three years after the War’s end, the Fourteenth Amendment followed what Abraham Lincoln called “a new birth of freedom,” and it forever transformed the character of the American republic.
In 1857, Dred Scott v. Sanford, the Supreme Court’s most shameful decision, denied citizenship to African Americans, free or enslaved, and placed the Court’s imprimatur on the ideology of white supremacy. Eleven years later, the Fourteenth Amendment guaranteed state and national citizenship to all persons born or naturalized in the United States and wiped away the stain and the force of Dred Scott. It articulated our nation’s most cherished ideals and promised its people equality and fairness under law. The Amendment redefined the relationship between the federal government and the states, between the national government and the people, and between the states and the people. It enshrined the principles of equal protection of the laws, due process, and privileges and immunities as the fundamental wellsprings of equality and fairness.
The sesquicentennial is an appropriate time to reflect on the original purposes of the Amendment, its narrow interpretation by the Supreme Court over the years, and the repeated betrayals of its original beneficiaries. In the years following its adoption, for African Americans the Amendment was, more often than not, dormant, followed by an era of service to corporate interests, before its mid-twentieth century awakening to those seeking equality. The Equal Protection Clause was applied to make governmental distinctions based on race, national origin, and religion presumptively unconstitutional, and while not as highly suspect, gender-based classifications eventually followed.
The Fourteenth Amendment was born from three post-Civil War realities: 1) In the aftermath of the Civil War, even after the Thirteenth Amendment’s prohibition on slavery, Dred Scott’s ruling on citizenship remained intact. Black Americans were no longer slaves, but they were neither citizens nor equal persons; 2) Nothing short of a constitutional amendment could provide an ironclad guarantee that Dred Scott would be overruled; and 3) President Andrew Johnson’s (1865-1869) hostility to Congress’ Reconstruction agenda, and his repeated vetoes of legislation aimed at assisting the freedmen, and of civil rights measures, could only be superseded by a constitutional amendment. The Civil Rights Act of 1866 aimed to protect African Americans against black codes and other attempts to perpetuate legal subordination of those formerly held in slavery. Johnson’s hostility to the Act underscored the fact that Reconstruction bills could be vetoed by a hostile president, repealed by a later Congress, or invalidated by a hostile court. The Fourteenth Amendment was the only antidote. Of the Fourteenth Amendment, historian Eric Foner has written,”Some amendments, dealing with narrow, immediate concerns, can be thought of as statutes writ large; altering one aspect of national life, they leave the larger structure intact. Others are broad statements of principle, giving constitutional form to the resolution of national crisis, and permanently altering American nationality. The Fourteenth Amendment was a measure of this kind. In language that transcended race and region, it challenged legal discrimination throughout the nation and broadened the meaning of freedom for all Americans (Reconstruction, pp.257-258).”
The Fourteenth Amendment was first interpreted by the Supreme Court in The Slaughterhouse Cases, in which New Orleans butchers challenged an animal slaughtering monopoly granted by the Louisiana legislature. The case had nothing to do with race; it involved a challenge by businessmen against the State’s exercise of its police powers to regulate, in the name of public health, the noxious animal slaughtering business that poured filthy, disease-ridden waste into public waterways. John A. Campbell, a former justice of the U.S. Supreme Court who had resigned at the outbreak of the Civil War to serve the Confederacy, was a committed opponent of the Reconstruction agenda, including the three post-war amendments. As the attorney for the butchers, he seized what he thought was an opportunity to undermine Reconstruction by using the amendments in a manner that would have surprised their framers. On behalf of the butchers, he invoked the Thirteenth and Fourteenth Amendments to invalidate the state-granted slaughterhouse monopoly. In a 5-4 decision, a majority of the Court rejected the butchers’ claims, adopting a narrow reading of the privileges or immunities clause. Fearing a broad reading of the Fourteenth Amendment would transfer power and authority from the states to the federal government, Justice Samuel F. Miller’s opinion distinguished federally protected privileges or immunities from those protected by state governments, a distinction that would have profound ramifications for the application of the Bill of Rights. Perhaps more importantly, writing for the majority, Justice Miller observed, “[I]n light of…events almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without none of them would have even been suggested; we mean the freedom of the slave race. The security and firm establishment of that freedom, and the protection of the newly made freeman and citizens from the oppressions of those who had formerly exercised unlimited dominion over him.”
Miller added that he did not believe that the Amendment only applied to African Americans; by its own terms its protections were universal. Nevertheless, he thought it important to remember that the one abiding purpose of the three Reconstruction Amendments was the protection of African Americans, four million of whom were emerging from slavery. Over the years, legal scholars and historians have discredited The Slaughterhouse Cases, especially its privileges or immunities clause analysis, which all but read the clause out of the Constitution. Arguably, the language of Miller’s opinion in Slaughterhouse was the high-water articulation of the Fourteenth Amendment’s special significance for African Americans. In the following years, although the Amendment was increasingly applied to grant broader protections to corporate interests, when it came to race claims on behalf of African Americans, it was applied in an increasingly narrow fashion, culminating in the Court’s infamous decision in Plessy v. Ferguson. In United States v. Cruikshank (1876), and again in The Civil Rights Cases (1883), the Supreme Court ruled that Section Five of the Fourteenth Amendment did not authorize legislation protecting individuals from racial discrimination by private actors. Cruikshank overturned the convictions of several white men who were involved in the massacre of more than one hundred black people in a battle between white “redeemers” who sought forcibly to remove from power a black sheriff and other Republican Reconstruction candidates elected in Colfax, Louisiana. The Civil Rights Cases were five consolidated challenges under the Civil Rights Act of 1875 to discrimination by private actors who operated theaters, street cars, concert halls, and other businesses. Justice Joseph P. Bradley, writing for an eight-member majority, rejected the argument that under the Thirteenth Amendment this discrimination was a badge of slavery; that would be “running the slavery argument into the ground.” And as to the Fourteenth Amendment, although slavery was not yet cold in its grave, Bradley incredibly accused those African Americans who challenged racial discrimination under its protections of seeking to be “the special favorites of the laws,” thus invoking the specter of what in the next century would be called “reverse discrimination.”
The Hayes-Tilden Compromise that resolved the disputed presidential election of 1876 ended Reconstruction, followed in 1877 by withdrawal of federal troops from the South, ushering in what many southern leaders called the “Redemption,” or the restoration of white supremacist leadership (along with a reign of racial terror and the passage of Jim Crow laws throughout the South). By the end of the century, racial subordination by law was firmly entrenched. Plessy, with its intellectually dishonest assertion that the separate-but-equal doctrine did not impute racial inferiority of black people, was decided in 1896. Two years later, in 1898, the Wilmington, North Carolina insurrection and massacre was the only successful coup d’etat in American history; between 60 and 300 African Americans were killed and a racially integrated and democratically elected local government was overthrown. The Fourteenth Amendment provided little or no protection for black Americans in the post-Reconstruction era, and for them, by the dawn of the Twentieth Century the Amendment had little or no meaning. This was the Lochner Era, during which the Amendment served corporate interests and big business while racial subordination reigned unchecked.
In 1929, Charles Hamilton Houston, an African American Amherst College and Harvard Law graduate (class of 1923), became dean of Howard University Law School. Under his leadership, Howard became a full-time law school and a training ground for a generation of lawyers who revived the Fourteenth Amendment’s mission of racial equality and equal protection of the laws. Houston mentored Thurgood Marshall, Oliver Hill, and the cadre of lawyers who mounted the assault on Plessy v. Ferguson and Jim Crow segregation in higher, elementary and secondary education. The series of cases they litigated culminated with Brown v. Board of Education in 1954, which overturned Plessy’s application of separate but-equal in the field of education and cracked the edifice of Jim Crow constitutionalism. Brown was followed by a three-decade, hard-fought enforcement
effort before the Supreme Court began to bring the desegregation of public schools to an end in the last years of the Twentieth Century.
In higher education the Civil Rights Movement produced a policy and practice of conscious efforts, called “affirmative action,” to admit African Americans, Latinos, and people of color to selective colleges and universities in the late 1960s and ‘70s. Those efforts were attacked as “reverse discrimination” in Board of Regents of the University of California v. Bakke (1978), in which the Supreme Court effectively killed the remedial rationale for affirmative action. Allan Bakke, a white applicant to medical school, won his Fourteenth Amendment discrimination claim, even while Justice Lewis Powell wrote an opinion that allowed colleges and universities to pursue their First Amendment based interest in diversity in student enrollment. For African Americans, though, Bakke ended their ability to invoke the Fourteenth Amendment in pursuit of higher educational opportunity. In the forty years since Bakke, the Supreme Court has not heard or allowed their participation in oral arguments in the cases brought by white plaintiffs challenging affirmative action and diversity efforts. The voices of black and brown people in these cases—in Gratz, Grutter, Fisher I, and Fisher II—have been marginalized as they have been limited to amicus curiae status, even though it is their qualifications that have been under assault, their educational opportunities that have been at issue, and arguably they ultimately have had the most at stake. In every case involving college admissions over the last forty years, the only full parties allowed to shape the record or to present oral argument have been white plaintiffs alleging “reverse discrimination” and the universities they have sued.
Two cases challenging diversity efforts in higher education—one involving the University of North Carolina at Chapel Hill, and the other against Harvard University—are now pending in federal trial courts. Justice Kennedy, who in Fisher II wrote the Court’s opinion upholding Grutter and Bakke, has retired. His proposed successor is understood to be an even more staunch conservative who, if confirmed, may join the three justices who have been implacable opponents of race-conscious diversity efforts and a fourth who is thought to share their views.
The Supreme Court appears, once again, to be poised to turn the Fourteenth Amendment away from its original purpose of protecting against discrimination and providing equal opportunity for African Americans and people of color who were long excluded from colleges, universities, and other opportunities because of their race and ethnicity. Many believe that we have passed through a second Reconstruction, and that we are entering a second Redemption.
On the one-hundredth anniversary of Plessy, I participated in a symposium at Harvard Law School, at which I attempted to reclaim the part of Justice Miller’s Slaughterhouse opinion that set forth the original purpose of the great Amendment, even while recognizing, as one must, its universal application. Second Circuit Judge Guido Calabresi brought clarity to what I attempted to articulate, with a piercingly brilliant observation to the effect that we might talk about two Fourteenth Amendments: the Fourteenth Amendment that applies to everyone, and the Fourteenth Amendment with the Thirteenth Amendment inside of it. The latter is the Fourteenth Amendment that Miller identified. It is not that Miller did not recognize the Amendment’s universal application; the plain language of the Amendment requires that recognition. But over the years, the Supreme Court has underacknowledged that part of the Thirteenth Amendment that aimed to address the “badges and incidents of slavery,” and the Fourteenth Amendment’s close relationship with the Thirteenth. There is a part of the Fourteenth Amendment that should still address its original purpose, which is not yet completed—that which called it into being. Slaughterhouse’s reading of the Amendment’s privileges or immunities clause has discredited the opinion in its entirety, but privileges or immunities aside, many scholars and judges deny that the Fourteenth Amendment has particular significance for African Americans. But the Fourteenth Amendment’s universal application does not require that we deny its original purpose. It is counterintuitive to assert that the legacy of America’s three hundred and fifty-year slavery/Jim Crow continuum is unrelated
to massive and continuing racial inequality that persists today. The question is whether the Fourteenth Amendment must stand mute in the face of that legacy.
The Fourteenth Amendment has been applied to protect women from discrimination, to protect against national origin discrimination, to protect against religious discrimination, to protect same-sex marriage rights, and to guarantee equal protection of the laws. As we commemorate the sesquicentennial of the Fourteenth Amendment, its meaning and application is still very much in dispute and evolution. At a time when the occupant of the White House advocates ending birthright citizenship; when people are being subjected to harsh and disparate treatment based on their religious beliefs, national origin, race, or ethnicity, when due process is violated for immigrants and citizens alike, the Fourteenth Amendment is more important than ever. The Amendment changed the United States, and redefined who and what we are as a nation. Its application now will determine, as it has since its adoption and ratification, who and what we are as Americans and as a country.
Theodore M. Shaw (firstname.lastname@example.org) is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law at Chapel Hill. Professor Shaw is also a member of PRRAC’s Board of Directors.