Studying the Fourteenth Amendment is like taking one thread of American history since the mid nineteenth century and following it through all of the major events of the period since then. It’s a great way to study history. So today we are going to discuss the Fourteenth Amendment. Explore what it is, why it became a Constitutional Amendment, and what legal decisions have shaped how the amendment is used today.

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Transcript for The Fourteenth Amendment to the Constitution of the United States: A Brief Overview and History

Averill: Studying the Fourteenth Amendment is like taking one thread of American history since the mid nineteenth century and following it through all of the major events of the period since then. It’s a great way to study history. So today we are going to discuss the Fourteenth Amendment. Explore what it is, why it became a Constitutional Amendment, and what legal decisions have shaped how the amendment is used today.

I’m Averill

And I’m Elizabeth

And we are your historians for this episode of Dig

Elizabeth: So a little word about the information we’re going to be discussing today. I had the opportunity to take a Constitutional Law class in the law school while I was taking classes for my doctorate. It was really interesting because I was in there with a bunch of law students and it was eye opening to see how differently lawyers and historians look at legal cases. I’m not saying one is better than the other, I’m just saying they are different. I found myself constantly butting heads with people in that class because I kept bringing up context context context and they are like no, legal precedent, legal precedent, legal precedent. So we’re going to try to present this information in a historical view but I will be taking some cues from constitutional law to explain how convoluted the path of the Fourteenth Amendment really is. But by saying that, I also want to give a disclaimer that we will just be barely scratching the surface as far as the law goes. We’re just going to discuss a sampling of cases. Because so many cases are decided using multiple legal precedents and there are so many cases that deal with the Fourteenth Amendment this episode would be three hours if we covered everything.

Averill: At its base the Fourteenth Amendment deals with due process rights and equal protection.The Fourteenth Amendment provided an expanded definition of national citizenship. The amendment extended citizenship to “all persons born or naturalized in the United States” and decreed that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any 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.”

Elizabeth: Interestingly, there wasn’t a guarantee for “the equal protection of the law” in the Constitution until the Fourteenth Amendment was added. It was ratified in 1868 but it took the Supreme Court over half a century to actually start enforcing it, at least in the way it’s drafters intended it to be used.

Averill: Now what does equal protection of the law actually mean? Superficially it means that states guarantee the same rights, privileges, and protections to all citizens. But this doesn’t actually mean that states simply require an even-handed application of the law. An example of doing that is given by legal scholar David O’Brien. In this example, applying an even-handed application of law would mean that states could simply “deny blond-haired individuals public employment or benefits so long as they rigorously denied all blond-haired applicants.” That would be a narrow focus of the law, which was actually struck down in the 1886 case Yick Wo v Hopkins which we will discuss in more detail a little later. So deciding cases based on the Fourteenth Amendment requires scrutiny that has been administered in different degrees throughout its 150 year history.

Elizabeth: Now for a little history and backstory on the Fourteenth Amendment. It was one of three very important amendments called the Reconstruction Amendments. These were the Thirteenth, Fourteenth, and Fifteenth amendments. These amendments essentially embody the development of Reconstruction policy from 1864 to 1870.

An etching depicting a group of black men stepping up to a polling box to vote

Freedmen Voting in New Orleans, 1867 | Public Domain / Wikimedia Commons

The Thirteenth Amendment is actually a very narrow amendment and shows the limited goals of Presidential Reconstruction. In May 1865, immediately following the assassination of President Lincoln, President Andrew Johnson and his administration created a plan for Reconstruction, which became known as Presidential Reconstruction and included the following provisions:


  • Former Confederates who pledged loyalty to the Union received amnesty and pardon; all of their property was restored, except slaves but including any land that had been provided to freedpeople in the closing months of the war.
  • Some former Confederates, including the highest officials in the Confederacy and those who owned more than $20,000 of property, had to apply to Johnson in person for pardon. (Johnson granted pardons to nearly all who applied.)
  • States could be restored fully into the Union after they wrote new constitutions that accepted the abolition of slavery, repudiated secession, and canceled the Confederate debt.
  • State conventions charged with writing new constitutions were not required to allow African Americans to participate.

Elizabeth: So essentially Presidential Reconstruction was very conservative and led to what is known as Radical or Congressional Reconstruction, which was far more sweeping and interventionist in its attempt to bring equality to freed blacks in the South and brought us the Fourteenth and Fifteenth amendments. Aside- I think an episode solely on Reconstruction is in order. How about you?

Averill: Yup.

Elizabeth: So the Thirteenth Amendment abolished slavery throughout the United States.

Averill: The Fourteenth Amendment was drafted by the Joint Committee on Reconstruction during the Spring of 1866. It guaranteed federal protection for black equality under the law, it encouraged states to enfranchise black men, and it disenfranchised former Confederate leaders. (The franchise is the vote FYI)

Elizabeth: The Fourteenth Amendment has five sections. The first section introduces the citizenship law for all people born in the country or naturalized and it states that state laws cannot supersede federal laws. The Amendment also states that individual states cannot deprive citizens of life, liberty, or property without due process of law. This means that legal proceedings need to be given notice and a chance to be heard in court if they are accused of a crime. It also allows for a fair trial. Section 3 of the 14th Amendment focuses on rebellion, prohibiting anyone from being elected or appointed to a state or federal office after engaging in rebellion or treason. The houses of Congress can vote to override this if two-thirds of the votes are in favor. Section 4 serves to legitimize the public debt that Congress appropriates. This section was put in place to prevent the Confederacy’s war and emancipation debts from impacting the reunited country.
The power of enforcement is outlined in Section 5 of the 14th Amendment. This clause gives Congress the power to pass appropriate laws to enforce all of the provisions of this amendment.

Averill: In February of 1869, after several southern states refused to ratify the Fourteenth Amendment or enact black male suffrage, Congress passed the Fifteenth Amendment which was specifically designed to protect the voting rights of black men.

Elizabeth: Now an interesting and unfortunate side note. The debates over the Fourteenth and Fifteenth amendments caused a major split in the coalition of white feminists aligned with advocates of voting rights for black men. The feminist and abolitionist movements had been closely tied, almost one in the same since the early 19th century. For example, Frederick Douglass was one of the signers of the Declaration of Sentiments at the 1848 Seneca Falls woman’s rights convention and women’s suffrage advocates like Elizabeth Cady Stanton began their careers as abolitionists. So they had deep ties to one another. But, the debates over these two amendments pitted votes for women against votes for black men.

Averill: The Fourteenth Amendment proposed to only protect the voting rights of “male inhabitants.” In fact, the amendment was the first time that “male” was inserted into the Constitution at all. Then, the Fifteenth Amendment declared that states could not deny the right to vote based on “race, color, or previous condition of servitude” – the amendment did not mention sex.

Elizabeth Cady Stanton and Susan B. Anthony - a black and white photograph of two older white women reading a letter together

Elizabeth Cady Stanton and Susan B. Anthony | Public Domain / Wikimedia Commons

Elizabeth: These were deliberate omissions and led to fierce debates between advocates for women’s suffrage. Elizabeth Cady Stanton and Susan B Anthony split with others in the women’s rights movement and formed the National Woman Suffrage Association whose sole focus was the immediate voting rights for women. Others led by Lucy Stone and Julia Ward Howe formed the American Woman Suffrage Association which continued to support suffrage for black men with the understanding that the vote for woman would come next. The two women’s suffrage organizations did not join forces again until 1890 when they combined to form The National American Woman Suffrage Association (NAWSA).

Averill: Back to the Fourteenth Amendment. Reconstruction officially ended in 1877 with something called the Compromise of 1877 or the Great Betrayal. Democrats had already taken back many southern state governments by the 1876 presidential election. In kind of a back-room bargain, the Republican presidential candidate Rutherford B. Hayes won the presidency through a vote by the Electoral Commission in exchange for Hayes’ representatives agreeing to recognize Democratic control of the entire South and to avoid further intervention in local affairs while Democrats agreed to not dispute Haye’s right to the presidency and they promised to respect the civil and political rights of blacks. And this was what is known as “redemption,” where the South almost immediately barred all black men from voting, enacted Jim Crow laws and ushered in a period of mass violence against blacks.

Elizabeth: During the 1870s the US Supreme Court accepted interpretations of the Fourteenth and Fifteenth Amendments that gravely diminished the protections they provided to African Americans. The first case that made it to the US Supreme Court dealing with the interpretation of the Fourteenth Amendment are known as the Slaughterhouse Cases. These cases had absolutely nothing to do with black citizenship or newly freed people. Instead these were cases involving white businessmen in Louisiana.

Averill: At questions was the constitutionality of an 1869 Louisiana law that incorporated the Crescent City Livestock Landing & Slaughterhouse Company and granted it the exclusive right to butcher livestock in the city of New Orleans. On its surface the law was supposed to protect public health by reducing the amount of waste created by the mass slaughter of animals in the butchering industry. In actuality, state legislators had been bribed outright by the City Livestock Landing & Slaughterhouse Company to be awarded the sole right to operate in the city. The Butchers Benevolent Association, a group of butchers who had been left out of the corporation, filed suit in federal court. The butchers claimed that by denying them the “property” right to practice their livelihood without state interference Louisiana had violated their rights under the Thirteenth Amendment. You know, the one created to make slavery illegal. Also they claimed that by creating a monopoly that favored some citizens at the cost of others, Louisiana had violated their rights under the Fourteenth Amendment as well.

Elizabeth: A consolidation of several of these suits came to be known as the Slaughterhouse Cases and reached the US Supreme Court in 1873.A 5-4 majority ruled in favor of the state of Louisiana and against the butchers.Justice Samuel Miller wrote for the majority opinion and interpreted the five-year-old Fourteenth Amendment narrowly. He held that “the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established” and that because the “privileges and immunities” clause of the Fourteenth Amendment applied only to the rights associated with “national citizenship” and not those of state citizenship, it did not prohibit the state of Louisiana from creating the butchering monopoly.

Averill: What this reading of the law meant was that the Privileges or Immunities clause of the Amendment was made ineffectual. Even though the drafter of the clause, Representative John Bingham of Ohio, explained on the House floor during its drafting that the clause was intended to give Congress the power to enforce the Bill of Rights against the states. The lasting outcome was a limited understanding of the Privileges or Immunities Clause. So this interpretation drastically altered the trajectory of constitutional law. Citizens would now have to seek substantive rights protection under the 14th Amendment’s Due Process Clause—a strategy that continues today. So when courts make decisions in discrimination cases, they must rest those decisions on the due process clause.

Elizabeth: Something else that is really fascinating about studying the law and these court case decisions is reading the briefs and statements and dissents by the court judges themselves. So when a ruling is made there is the majority opinion but then judges who do not agree can write a dissent explaining why they disagree with the majority ruling if they choose to. For example in the Slaughterhouse cases, one of the dissenting judges Justice Field just ripped apart the majority opinion. He advocated a broad reading of both the 13th and 14th amendments in these cases and saw what the majority was doing and strongly opposed their interpretation. Other dissenting judges were even questioning if the court even had authority to narrow the scope of the 14th amendment in such a way. So these dissents are great ways to see what other judges were thinking during such important rulings. And historically, it’s a clear way to see that there were clear legal paths to rule in these cases differently, to interpret the law differently. And so this goes along with this idea of contingency that we bring up quite often in this podcast. That history happens through choices that people made- and they made those choices while operating within a context of cultural constraints- but they still made choices nonetheless. So to see these dissents and to see that there was a legal path to interpret the 14th more broadly, it just wasn’t taken, is a great example of contingency.

Averill: Another case that weakened the spirit of the Fourteenth Amendment Happened only three years after the Slaughterhouse cases. In US v Cruikshank 1876, the court determined that state action is required for the United States government to intervene when for example a mob lynches a black man. This case stemmed from the infamous Colfax Massacre in Louisiana. This is one of the worst cases of racial violence in American history. Notice I say one of the- there are a bunch. The 1872 governor election in Louisiana was close. President Ulysses S. Grant sent federal troops to support the Republican candidate. In response, white southerners, many former Confederate soldiers, formed a heavily armed insurgent army they called the “White League.” It was very much like the Ku Klux Klan in that it was a paramilitary group that intimidated and attacked newly freed black people and white Republicans across Louisiana.

Colfax Massacre - an etching depicting several black men and women dragging an injured man on a stretcher

Removing the injured after the Colfax Massacre | Public Domain / Wikimedia Commons

Elizabeth: The Grant Parish regional government was pretty evenly split between black and white citizens but Republicans and freedmen feared that the Democrats were going to seize control. An all-black militia took control of the local courthouse in April 1873 and a mob of more than 150 white men, most former Confederate soldiers and members of the Ku Klux Klan and the White League arrived and surrounded the courthouse. They fired a cannon on the courthouse. The men inside fired back and gunfire was exchanged for a time but eventually the black men inside had to surrender because they were outgunned. When they surrendered however, the white mob murdered anywhere from 60 to 150 African-Americans inside. It was horrible.

Averill: 97 members of the white mob were indicted, in the end only nine men were charged of violating the Enforcement Acts of 1870 and 1871, sometimes known as the Ku Klux Klan Acts, intended to guarantee the rights of freedmen under the 14th and 15th Amendments.The defendants appealed, and when the case eventually came before the Supreme Court in 1876, the justices overturned the lower courts’ convictions, ruling that the Enforcement Acts applied only to actions by the state, not by individuals. So what this Supreme Court ruling did was essentially prohibited the federal government’s ability to prosecute hate crimes committed against African-Americans. So the US government could not intervene to protect someone’s Fourteenth Amendment rights unless their rights were being violated by the state, not an individual. These days the federal government has worked around that and can intervene through the Commerce Clause, which is a whole other thing… but essentially because of this decision in US v Cruikshank, that’s why the Commerce Clause is used for such actions today.

Elizabeth: Now since we’re going chronologically, we’ll talk about Yick Wo v Hopkins [1886]. This was the case we mentioned at the top of the show. In this case, the city of San Francisco had passed a quote un quote “safety” ordinance which made it illegal to operate a laundry in anything other than a brick or stone building. Now on its surface that seems legit right? But the court found that the law was made and administered with “a evil eye and an unjust hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is…within the prohibition of the Constitution” [sic]. That’s 19th century legal jargon for you guys passed this law to specifically discriminate against Chinese laundries because they don’t or can’t operate out of brick and stone buildings. So even though the law seemed benign on the surface, under scrutiny it was passed with mal intent – or discriminatory intent, therefore it violated the Fourteenth Amendment.

Averill: That reminds me of the argument over voter ID laws.

Elizabeth: Yes, that is exactly one of the arguments right? On its surface it’s a benign law but opponents point out that it is designed to discriminate against minority voter.

Averill: So in Yick Wo v Hopkins the Supreme court unanimously decided that the administration of the San Francisco law was discriminatory and that there was therefore no need to even consider whether the ordinance itself was lawful. Even though the Chinese laundry owners were usually not American citizens, the court ruled they were still entitled to equal protection under the Fourteenth Amendment. Justice Matthews denounced the law as a blatant attempt to exclude Chinese from the laundry trade in San Francisco, and the court struck down the law, ordering dismissal of all charges against other laundry owners who had been jailed. What’s interesting is that Yick Wo was never applied to Jim Crow laws, which rested on Plessy v Ferguson which we’ll now discuss.

Elizabeth: Plessy v. Ferguson was an 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. The case stemmed from an 1892 incident in which African-American train passenger Homer Plessy refused to sit in a car for blacks. Rejecting Plessy’s argument that his constitutional rights were violated, the Supreme Court ruled that a state law that “implies merely a legal distinction” between whites and blacks did not conflict with the 13th and 14th Amendments. So this was a very narrow reading of the 13th Amendment and said that it only abolished slavery, that a legal distinction based on race was not the same thing as slavery. In this way, they said that the separate but equal doctrine was okay because it did not actually create a state of slavery, only of difference. Which of course was a precursor to entering the period of Jim Crow. Separate public accommodations based on race were encouraged after the Plessy decision.  It prevented federal action from intervening. They narrowly interpreted the Equal Protection clause, saying the federal government can’t act under the Equal Protection clause in state matters. It let states do what they wanted, segregated schools, etc.

Averill: So we can see how the weakening of the 14th amendment was one thing that led to the proliferation of Jim Crow, school segregation, civil rights violations, institutionalized racism. All the fun stuff.

Elizabeth: Right, all the reasons that the framers of the Amendments wanted to protect against.

Averill: So the years 1897 to roughly 1930 known as the Lochner era in Legal History because the court used substantive due process to protect businesses from state regulation. So it’s funny because substantive due process was originally developed to protect businesses, it is now primarily (today) used to protect individuals rights. But the Lochner era gets its name from the 1905 decision, Lochner v. New York which basically ruled that it was against the Fourteenth Amendment for states to set maximum hours laws. The court held that a New York law requiring that bakery employee hours had to be under 10 hours a day and 60 hours a week violated the due process clause, which in their view contained a right of “freedom of contract”. They said there was “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” This was a verrry conservative ruling and immediately had its detractors.

Elizabeth: Yes, in fact Justice Oliver Wendell Holmes’ dissent in this case is pretty legendary. He accused the court of judicial activism and claimed the case was “decided upon an economic theory which a large part of the country does not entertain.” “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” Spencer is the guy behind social Darwinism by the way. Holmes said, “a constitution is not intended to embody a particular economic theory.” So um, he was pretty pissed. The Lochner Era then is known as such because during the period the Supreme Court invalidated several federal and state statutes that sought to limit working conditions. The period ended with West Coast Hotel Co. v. Parrish (1937), in which the Supreme Court upheld the constitutionality of minimum wage legislation enacted by the State of Washington.

Supreme Court Justice Oliver Wendell Holmes Jr - a black and white photograph of a white man with a large white mustache

Supreme Court Justice Oliver Wendell Holmes Jr | Public Domain / Wikimedia Commons

Averill: Ok, so how did we get to where we are now? Where the Fourteenth Amendment is used to protect people’s individual Civil Rights? That’s tricky because decisions on so many things go so many different ways. One of the major decisions was Brown v Board in 1954. This ruling struck down Plessy v Ferguson and made the separate but equal doctrine illegal. Most people are pretty familiar with the Brown decision but what’s interesting is some of the cases leading up to Brown, that made Brown possible.

Elizabeth: Mendez v. Westminster (1947) was filed in federal court and became the first lawsuit where the plaintiff argued that the “separate but equal” statute violated  the Equal Protection Clause of the Fourteenth Amendment for K-12 public schools. That the NAACP had already begun litigating school segregation involving higher education cases before attempting cases that tested the Fourteenth Amendment argument as pertaining to K-12 schools. For example, the NAACP financed and argued for the plaintiff in Missouri ex rel. (or on the behalf of) Gaines v Canada (1938), where the United States Supreme Court struck down a portion of Missouri law that disallowed black students to be admitted to its law school but instead provided funds for black students to attend law schools in other states. Although a win in the long list of Civil Rights cases, instead of testing the separate but equal doctrine, the ruling mandated that states must only provide equal education in separate schools.

Averill: Rulings in favor of the NAACP and civil rights came in Sipuel v. Regents of University of Oklahoma (1948) and Sweatt v. Painter (1950). All three of these cases involved higher education whereas Mendez tested public school segregation in grades K-12, like Brown would later. Mendez v. Westminster  also marked the first time in federal court that plaintiffs succeeded in forbidding segregation using the argument that separate was not equal.

Elizabeth: So the specifics of the case: On March 2, 1945 Gonzalo Méndez and four other Mexican American fathers filed suit on behalf of their children and five thousand other Mexican heritage children in four surrounding school districts. This was in California.  They alleged that Mexican heritage children “have been or are now excluded from attending, using, enjoying and receiving the benefits of the education, health and recreation facilities of certain schools within their respective districts… but that said children are now and have been segregated and required to attend and use certain schools in said districts and systems reserved for and attended solely and exclusively by children and persons of Mexican and Latin descent, while such other schools are maintained, attended and used exclusively by and for persons and children purportedly known as white or Anglo-Saxon children.”

Averill: David C. Marcus and A.L. Wirin served as attorney and co-council for the Mendez plaintiffs who argued that the school districts made a concerted effort to segregate Mexican heritage children in violation of the equal protection clause of the Fourteenth Amendment. In February 1946 Judge Paul J. McCormick ruled, “we conclude by holding that the allegations of the complaint have been established sufficiently to justify injunctive relief against all defendants, restraining further discriminatory practices against the pupils of Mexican descent in the public schools of defendant school districts.” In his opinion, Judge McCormick addressed the “’equal protection of the laws’ pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, textbooks and courses… A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.”

Elizabeth: The defendant school districts appealed the ruling to the Ninth Circuit Court of Appeals in San Francisco. The NAACP, the American Jewish Congress, the Attorney General of the State of California, the American Civil Liberties Union and the National Lawyers Guild submitted amicus curiae briefs in support of Mendez. And amicus curiae briefs are reports or petitions written by people or groups who are not directly involved in the case but have a vested interest in it one way or another. Thurgood Marshall, Robert L. Carter and Loren Miller wrote the brief submitted by the NAACP which argued that since Judge McCormick argued against Plessy in his opinion that social equality was a “paramount requisite” in the American educational system, not separate schools, the Ninth Circuit Court should rule against Plessy. They argued that since the Supreme Court had never ruled directly on the constitutionality of public school segregation, the Ninth Circuit “is not bound by decisions of the Supreme Court to validate a segregated school system.” People who later worked on the Brown v Board of Education (1954) case said that the Mendez amicus brief written by the NAACP “was a useful dry run” in testing “the temperature of the courts without putting the NAACP itself in the field.”

Averill: The Ninth Court of Appeals ruling on April 14, 1947 upheld the District Court’s verdict in a unanimous 7-0 decision, calling for an end to segregation in the defendant school districts. Unfortunately, it was a small victory because the Ninth Court did not take up the separate but equal doctrine but instead ruled that the segregation of schoolchildren of Mexican ancestry violated the pupils rights under the Fourteenth Amendment by “depriving them of liberty and property without due process of law and by denying the equal protection of the laws.”

Thurgood Marshall A black and white photograph of a black man wearing judicial robes

Supreme Court Justice Thurgood Marshall | Public Domain / Wikimedia Commons

Elizabeth: So it’s interesting to look at this case and see how these types of legal precedents work right? Mendez didn’t make it to the Supreme Court BUT people like Thurgood Marshall who ended up winning Brown v Board just a few years later were watching and using cases like Mendez to see how the courts would rule. To see what arguments to use right? Like previously mentioned, it was like a test case. And just a side note, the US postal service made a stamp for Mendez v Westminster in 2007. Constance Baker Motley, a United States District court judge and early legal staff member of the NAACP who helped prepare briefs for Brown v. Board of Education (1954) wrote, “we all sensed from those [higher education] decisions and from a Ninth Court decision [Mendez] repudiating the segregation of Mexican children in California, that integrated education was an idea whose time had come.”

Averill: so now the big one, Brown v Board of Education arrived on the Supreme Courts’ docket in 1951 but the Court postponed their decision until the next term because 1952 was an election year and the Court was deeply divided over the politically volatile issue. Unexpectedly Chief Justice Vinson died of a heart attack and the newly elected Dwight D. Eisenhower named Earl Warren as the new Chief Justice of the Supreme Court. But re-arguments for Brown were again postponed until 1954 because Chief Justice Warren insisted that no vote be taken until the Court could come to a unanimous decision against segregated schooling. That’s really interesting- he didn’t want to let it proceed until he was sure he could get a unanimous decision one way or the other. The landmark decision of Brown v. Board of Education held that separate segregated public schools violated the Equal Protection Clause of the Fourteenth Amendment. In his opinion, Chief Justice Warren referenced Sweatt and another higher education segregation case in deciding that segregation based solely on race deprived children of minority groups an equal education. The Court also relied on social science testimony, which they also did in Mendez, to decide that segregation was psychologically detrimental to minority children.

Elizabeth: So this decision was revolutionary because it overturned Plessy v Ferguson. It wasn’t like the Slaughterhouse Cases which are actually still on the books. Brown said no, those prior cases like Plessy were wrong, separate is not equal, and they overturned it. And so the Warren court is known as the shift to protecting individual liberties and using equal protection and substantive due process for civil rights. And it’s so interesting that Warren really wanted these unanimous votes on these types of decisions. He didn’t like these 5-4 splits, he wanted strong ruling doctrine. So that’s why Brown took so long to come to trial. So fascinating. And as a side note, this is also around the time when the conservative movement started taking root in Southern California and there was a lot of conservative mobilization against the Warren court because of these big civil rights cases that overturned a lot of um, states rights, home rule type dogwhistle type of laws.

Averill:And from there things started rolling. In 1967 the Court ruled in Loving v Virginia that equal protection and due process were used to strike down marriage laws that said black and white people could not marry one another. In 1973 the court used the 14th Amendment in a more creative way, legalizing abortion in the United States in Roe v. Wade. In Roe, the court said Americans had a “right to privacy,” pulling text from the Constitution’s First, Fourth, Ninth and, 14th amendments. Jane Roe’s right to privacy was violated by the Texas statute that banned abortions except to save the life of the mother.

Elizabeth: Interestingly, Bush v. Gore in 2000 was also decided using the Fourteenth Amendment. In 2000, amid the Florida recount that would decide the presidency, George W. Bush’s lawyers successfully argued that the recount violated the 14th Amendment’s Equal Protection Clause because different standards of counting were used in different municipalities. The court’s decision effectively killed the recount and Bush became the country’s 43rd president of the United States that January.

Averill: In 2015 the Supreme Court decided Obergefell v. Hodges. The Fourteenth Amendment was applied to make same sex marriage legal. Justice Anthony Kennedy wrote that “no union is more profound than marriage” and that the Due Process Clause extends to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” He also used the equal protection portion of the amendment saying that it “prohibits this unjustified infringement of the fundamental right to marry.”

Elizabeth: In many ways the Fourteenth Amendment is one of the most relevant amendments to our everyday lives today. Many of the personal freedoms that we can take for granted are because of the Fourteenth Amendment. More legal cases are raised by it, more arguments were created by it, and more controversy is connected with it than any other part of the U.S.Constitution. The 14th Amendment established citizenship rights for the first time and equal protection to former slaves, laying the foundation for how we understand these ideals today.

Averill: So hopefully we expressed how differently the Constitution can be interpreted based on the culture and political climate of the day. And also that contingency is always working, there was never just one path that would lead us to where we are now. Decisions and choices were made, some good, some bad, some yet to be determined, that create our history and our present world. Constitutional constructions can be interpreted broadly or narrowly depending on the cultural consensus of the day and the constitution of the court and who is in power and how that power shapes how laws are interpreted.

Elizabeth: Well that’s it for today. Let us know if you liked this episode or want to know more. We had to skim or skip so much that if there’s a particular court case or whatever that you’d be interested in hearing more about, let us know through email or tweet at us or join our super awesome Facebook group, Dig History Pod Squad. So thanks for listening!

Further Reading:

O’Brien, David M., Constitutional Law and Politics: Civil Rights and Civil Liberties (New York: W.W. Norton & Company, 2011).

Gilles, Myriam and Goluboff, Risa, eds., Civil Rights Stories (New York: Foundation Press, 2008).

The 14th Amendment to the Constitution of the United States: A History and Overview #14thAmendment #constitution #apush #teacherspayteachers #law #history


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