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 seventy 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 14th 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 post-war 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 re-writing the nation’s long-running racial drama, would produce the Supreme Court’s first great dissent . . . and its first great dissenter.

The Civil Rights Cases was a consolidation of five separate cases that spanned the country. Owners had been fined or indicted for denying black citizens seats at theaters in New York and San Francisco, rooms at hotels in Kansas and Missouri, a seat on a ladies car of a Southern railroad. The owners wanted the law under which they’d been prosecuted struck down.

Much had changed in the eight years since the law’s passage. Even in the North, people had grown weary of Reconstruction. Radical Republicans had lost control of Congress and the Southern statehouses. Federal troops had been pulled from the old Confederacy.

Members of the Court had no problem gauging the force and direction of the political winds. As Joseph Bradley’s majority opinion circulated among the justices, eight of the nine signed on.

KLARMAN: The Supreme Court in 1883 strikes down the Civil Rights Act of 1875. And what the Court says is the 14th Amendment prohibits a state from denying equal protection. Individual behavior does not offend the Constitution. And the federal government doesn’t get to come in and fix this problem.

WEINBERG: The Court took the view that the Fourteenth Amendment gave no protection from private discrimination. The landlord could exclude you from renting his house. The innkeeper could exclude you from the inn. The theater could exclude you from the theater. The Fourteenth Amendment said no state shall; it didn’t say no landlady, no innkeeper, no theater manager.

POWE: The opinion ends with Justice Bradley saying, ‘There comes a time when, after the emergence of slavery, a person must take on the role of mere citizen and cease being a special favorite of the law.’ And what the court is announcing then is Reconstruction is over. You’re just like anyone else.

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