Source: The Supreme Court : "A New Kind of Justice"
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One of the most enduring outcomes of the Civil War, the Fourteenth Amendment, promised the government would protect the rights of citizens of the United States. While Congress was given explicit rights through the Amendment to protect newly freed slaves in former Confederate states, the language of the Amendment sometimes presented ambiguities. This video from the series The Supreme Court explores how far the federal government could go to ensure the “privileges or immunities” of citizenship.
Download and ShareThe end of the Civil War brought far-reaching questions to a nation looking to heal its deep divisions. How will a nation divided reunite? How will the states that had seceded before the war reintegrate? How will the newly freed slaves become full and contributing citizens? How will their former owners and neighbors adjust? The Fourteenth Amendment, ratified in 1868, intended to answer some of those questions, but left many unresolved.
Section 1 of the Fourteenth Amendment says: "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." So, it established that former slaves were citizens. Had the Supreme Court heard Dred Scott's appeal after the passage of the Fourteenth Amendment instead of eleven years before it, it would have likely reached a different decision. Recall that in 1857, the Court ruled that Mr. Scott had no standing. In other words, whether he was legally "free" because he had been taken to a "free state," was irrelevant. Since he was property, [a slave] and not a citizen, he had no right to even bring his case to court. The outcome of this case is often cited as another spark that helped ignite the Civil War.
The Fourteenth Amendment's Section 1 goes on to say: "…nor shall any State deprive a 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." So, every state must guarantee that its laws and legal procedures treat all people fairly, particularly when those people are exercising fundamental rights. These protections are called procedural and substantive due process. The Fourteenth Amendment gave the federal government and the courts power to force states to comply with those protections.
What was less clear was which rights are fundamental and to what extent the federal government would or should go to protect those rights. The Reconstruction Era programs to bolster the skills and standing of former slaves coupled with the resentment of many White Southerners over their loss of autonomy, their property and their way of life, provided an urgent call to action. During the period, the Court and Congress were not always in sync when answering that call.
Since its passage, the Fourteenth Amendment's protections have been argued in a huge range of cases --- involving freedom of speech, discrimination based on race, gender, age and ability, freedom of religion, congressional district reapportionment, and more. The nation and its courts continue to find its requirements subject to interpretation, debate, and controversy.
NARRATOR: The carnage that Oliver Wendell Holmes had witnessed was only a small window on the enormity of the Civil War. When it was over, 600,000 men had perished. But the Union held. And the Constitution, like the nation, was reborn.
WEINBERG: The Thirteenth, Fourteenth and Fifteenth amendments together, but above all the Fourteenth Amendment, is the fruit of the Civil War. It is what all those brave men fought for and died for.
AMAR: The Fourteenth Amendment says the federal government is gonna protect your citizenship even in your state. The federal government is gonna protect you against your own state. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
KOBYLKA: The thing about the Fourteenth Amendment is it's written in general terms. It's not couched in racial terms. It's not couched in gender terms. It's couched in universal terms. Citizens have privileges and immunities. People have rights to equal protection and due process. So, while it is historically tied to the Reconstruction Acts at the time, the language of the Fourteenth Amendment admits of a broader range of interpretation.
NARRATOR: If the intended beneficiaries of the amendment were open-ended, the benefits themselves were maddeningly vague. What are the privileges or immunities of citizenship? What fundamental rights comprise "liberty"? How far could the federal government go to secure for citizens equal protection of the law?
For the next 70 years, as a rollicking new nation rose from the ash of war, it would fall to the Supreme Court to attach specific meaning and substance to those arguable Fourteenth Amendment phrases. The task would swell the influence of the Court and invite remarkable judicial creativity.
By the time the Fourteenth Amendment was passed in 1868, the Supreme Court had a new home. It still didn't have its own building, but met in the old Senate chamber in the Capitol, where it conducted its business in the shadow of the forceful new postwar Congress.
The Fourteenth Amendment gave Congress explicit powers to enforce the rights of former slaves in even the most resistant rebel states. And the Republican-controlled Congress exercised those powers during Reconstruction, installing federal troops in the South and passing laws that guaranteed blacks access to public education, the right to serve on juries, testify in court, and vote in elections.
GORDON-REED: People began to sort of go about trying to make themselves into citizens with the backing of the federal government, they thought. People were flooding to get married, to try to do all of the things that were denied to them during slavery. People bought property thinking that their property would be protected. Tried to start businesses, tried to get education. This is a new covenant.
NARRATOR: Voter rolls filled with former slaves. Hundreds of black candidates won political office in the 1870 elections. And when the white backlash in the South turned lethal, Congress made a show of strength, enacting legislation to protect blacks from Klansmen and other vigilante groups.
In 1875, even as white resistance hardened and former Confederates began to take back power in the Southern states, radical Republicans in Congress passed a sweeping Civil Rights Act.
KLARMAN: The most important provisions are the ones dealing with access to public accommodations. Places of public accommodation are named places of public accommodation for a reason. They're generally open to the public -- theaters, hotels, restaurants, railroad transportation -- and it provides for full and equal access without regard to race.
NARRATOR: In 1883, that law was challenged. The case, besides rewriting the nation's long-running racial drama, would produce the Supreme Court's first great dissent ... and its first great dissenter.
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