Transcript: A New Kind of Justice

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.