http://www.annenbergclassroom.org Chapter 2 The Right to Freedom T he U.S. Constitution and its Bill of Rights contain the rights of a free people, but they do not guarantee freedom explicitly. The Thirteenth Amendment does. Designed to fulfill the promise of the Emancipation Proclamation of 1863, it outlawed slavery—“Neither slavery nor involuntary servitude. . . shall exist within the United States, or any place subject to their jurisdiction”—and, by implication, it also established freedom as a fundamental American right. Freedom has had many meanings for Americans, but at its core, the definition has always been set against slavery, the opposite of what freedom promised, which was the liberty to choose and act without coercion or restraints. In 1863, President Abraham Lincoln issued his proclamation abolishing slavery in regions not under Union control, but in fact the document did not free a single slave. Americans at the time recognized its limited effect: the Emancipation Proclamation had no legal status. The Thirteenth Amendment, ratified in December 1865, remedied this problem by making emancipation part of the nation’s fundamental law. Debated then and now was the question of whether the amendment went beyond merely freeing the slaves. Did it promise, in addition, a full measure of freedom for all Americans? Efforts to define freedom began with the European settlement of North America, but the struggle was most fierce during the Civil War and its aftermath of Reconstruction. Until then, Americans usually defined freedom in relationship to the African slavery they knew—slaves were not free, and free men were not slaves. By abolishing slavery, the war destroyed this assumption. It also changed the way Americans thought about the Constitution. In the decades leading to the Civil War, the Constitution had become an increasingly sacred text. Americans rarely considered changing it; after the Bill of Rights, it had been amended only twice, the last time in 1804. They especially avoided changing the founding generation’s language on slavery, but the debate over abolition forced Americans to view the framers’ work as imperfect and incomplete. It also provided them an opportunity to build on the founders’ commitment to liberty. In this sense, the adoption of the Thirteenth Amendment represented a transforming moment when the nation redefined freedom and made it part of its fundamental law. Americans were reconstructing the nation to create a more perfect Union and to extend its promise of liberty to all people. Adoption of the Thirteenth Amendment came after a long political struggle as first Congress and then the state ratification conventions debated what its words meant. Its champions believed the amendment proclaimed not only the end of slavery and its vestiges, or traces, but also guaranteed former slaves all the rights that defined freedom. “Mere exemption from servitude is a miserable idea of freedom,” a legislator from Massachusetts argued. Others did not favor extending a full complement of rights to African Americans but recognized that slavery was incompatible with the nation’s claims of liberty. Opponents objected to the broad enforcement power granted to the federal government in 26 Our Rights “If our free society is to endure, and I know it will, those who govern must recognize that the Framers of the Constitution limited their power in order to preserve human dignity and the air of freedom which is our proudest heritage. The task of protecting these principles does not rest solely with nine Supreme Court justices, or even with the cadre of state and federal judges.We all share the burden.” —Justice William J. Brennan, Jr., “My Life on the Court” (1997) Section 2, arguing that it undermined federalism, the division of power between state and central governments. In this view, opponents were correct. The amendment altered the American constitutional order. For the first time, a national law significantly limited the power of the states to define the status of its residents. The amendment quickly spawned two statutes under its enforcement authority—the Civil Rights Act of 1866 and the Freedmen’s Bureau Act. The bureau bill extended equal rights to state laws and enforced them through military courts when states failed to do so. Readmission of states into the Union would end the military courts, however, so the civil rights law declared that blacks were citizens and guaranteed them legal equality throughout the nation. They were entitled to the “full and equal benefit of all laws and proceedings for the security of persons and property” as whites enjoyed. Both measures asserted broad national authority to define rights essential to freedom and provided for enforcement of these rights, if necessary, in federal courts. These acts, and others that followed, depended in part on the enforcement power given to Congress under the Thirteenth Amendment. Tolerating discrimination, one senator explained, “would be perpetuating that lingering prejudice growing out of a race having been slaves which it is as much our duty to remove as it was to abolish slavery.” It was necessary to remove these vestiges for the guarantee of freedom to have any meaning. This view failed to receive support from the Supreme Court, which tended to ignore the Thirteenth Amendment. The justices conceded that the amendment guaranteed freedom from slavery, and not simply for blacks. Although “[N]egro slavery alone was in the mind of the Congress,” the Court noted in its 1873 decision in the Slaughterhouse Cases, “if Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race . . .this amendment may safely be trusted to make it void.” The Court’s decision in the Civil Rights Cases (1883) also suggested that the enforcement section gave Congress the authority to outlaw “badges and incidents” of slavery. But the justices defined these badges and incidents narrowly. They ruled, for example, that the amendment did not give Congress the power to enact laws against private discrimination or to prohibit racial discrimination in public accommodations, such as railroads. Finally, in 1906, the Court struck its strongest blow against the amendment when it declared that state courts alone could decide when violations of the amendment had occurred. With this history, it is not surprising that much of the twentieth century’s civil rights legislation relied not on the Thirteenth Amendment but on the Fourteenth Amendment, adopted in 1868. The latter amendment forbade states from abridging the rights of citizenship or denying citizens due process and equal The Right to Freedom 27 protection of the laws. In the late 1960s, however, the Thirteenth Amendment did emerge suddenly and dramatically as a constitutional guarantee of freedom. This outcome was not on the minds of a mixed-race couple from St. Louis in 1965, however. They simply wanted to buy a nice house in a quiet suburb, but discovered they could not. Joseph Lee Jones and his wife, Barbara, both federal employees in Missouri, read an advertisement in 1965 for the Paddock Woods subdivision then being developed in St. Louis County. The new suburb sounded ideal. It would house around one thousand people and boasted all the amenities needed for a comfortable lifestyle, including a country club. But when they made an offer on a home, they were told they could not buy it. Joseph Jones was an African American, and the agent explained that the developer, the Alfred H. Mayer Company, did not sell to blacks as a matter of policy. It believed whites would not buy lots if blacks were their neighbors. The fear was based in an unfortunate reality: the vast majority of Americans in the 1960s lived in residentially segregated neighborhoods. In 1948, the Supreme Court had ruled in Shelley v. Kraemer that state enforcement of such restrictive covenants, or legal restrictions forbidding blacks to purchase property, was unconstitutional under the equal protection clause of the Fourteenth Amendment. The Joneses could have used this decision to challenge the Mayer Company’s policy. But the company, in anticipation, claimed that it was operating solely as a private company; it had developed the subdivision solely on its own, without any state involvement. So the Joneses relied instead on the Civil Rights Act of 1866, which Congress had passed to enforce the Thirteenth Amendment. The company’s actions, they argued, violated a surviving remnant of this act that promised “all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof, to purchase real property.” Joseph and Barbara Jones were asking the justices to do something the Court had refused to do ever since the Thirteenth Amendment passed—declare that the amendment outlawed private discrimination as a violation of the rights of free citizens. The Supreme Court agreed with the Joneses, by a vote of 7 to 2, that the Thirteenth Amendment abolished the “incidents and badges of slavery” as well as slavery itself. This concept was not new to the Court; it had used the language in its 1883 decision in the Civil Rights Cases, but with a different result. Then, it interpreted the incidents and badges of slavery narrowly to exclude private acts of discrimination; now, it viewed these acts as impermissible. “Just as the Black Codes, enacted after the Civil War . . . were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery,” the Court determined. The real issue at stake was the meaning of freedom itself. During the debate over the Civil Rights Act of 1866, Senator Lyman Trumbull from Illinois, who led the fight to adopt the Thirteenth Amendment, warned that measures such as the Black Codes threatened the freedom won for all Americans on the battlefields of the Civil War: “The trumpet of freedom that we have been blowing throughout the land has given an ‘uncertain sound,’ and the promised freedom is a delusion,” he claimed. In Jones v. Alfred Mayer Co., the justices answered his concern. “At the very least,” the majority opinion stated, “the freedom that Congress is empowered to secure under the Thirteenth Amendment includes 28 Our Rights the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.’’ With the ratification of the Thirteenth Amendment, Americans had reimagined their Constitution. This first Reconstruction amendment established freedom as a condition of U.S. citizenship, but its meaning was uncertain. As the nation’s attention turned away from the conditions of ex-slaves in the 1870s, the Thirteenth Amendment faded into relative obscurity—until the decision in Jones v. Alfred Mayer Co. Although dormant for many decades, the amendment was never entirely forgotten. On numerous occasions, especially in the nineteenth century, the Supreme Court struck down various laws on peonage (forced labor for payment of debts) as violations of the ban on involuntary servitude. But memory of the amendment’s promise rested largely with African Americans, who viewed it in both a negative and positive light. For many blacks in segregated America, freedom still was more hope than reality, though the amendment was also a symbol of how far they had come. Many African-American communities, for example, celebrated February 1, the date in 1865 when Abraham Lincoln signed the Thirteenth Amendment, as Freedom Day. When Congress in 1947 established the date as an annual celebration, the man who lobbied most for the new National Freedom Day, an ex-slave from Georgia, said the amendment “not only freed the black man legally, but laid the groundwork for the white man’s [freedom] as well.” What this freedom entailed was open to debate, but increasingly in the twentieth century a variety of causes invoked the amendment’s promise. Since the 1960s, legal scholars have argued that the Thirteenth Amendment should protect exploited workers, abused women, neglected children, and all other victims of relationships that bore the vestiges of slavery or involuntary servitude. In a 1969 case concerning major league baseball, a star player, Curt Flood, challenged league rules against free agency, or the ability to negotiate his own contract, as a violation of the amendment’s guarantee of freedom. He lost his case (although baseball owners later abandoned their restrictive rules), but what was important was a renewed debate about what defines freedom. The struggle over the amendment’s meaning is far from over. In this sense, the first part of the Constitution to establish freedom as a right of all Americans is not unlike the more well-known amendment, the Fourteenth, that followed it.With the Fourteenth Amendment, the questions that begged answers centered on the rights included in its elusive phrases of “due process” and “equal protection.” The Court over time has interpreted the Fourteenth Amendment to include many of the rights outlined in the Bill of Rights. The Thirteenth Amendment cannot claim this constitutional legacy, but it does not need to. Its contribution is different but complementary. With its passage, Americans understood that the Constitution was not written on tablets of stone, with their rights engraved for all times and incapable of change. Each generation has the ability to challenge and enlarge on the work of previous generations. Rights can be expanded and created, not simply accepted. Freedom can be evaluated and redefined, not simply celebrated. Both freedom and the Constitution that protects the rights that accompany freedom are living achievements, not relics of a dead past. The Thirteenth Amendment made freedom part of our constitutional birthright; it also invited us all to continue the debate over what freedom means. “We tend to think the case has been made that a free society is a stable society, that a free society is the birthright of all people. We do not know why we must make the case all over again when judgment has been given in our favor. . . . History teaches that freedom must make its case, again and again, from one generation to the next. The work of freedom is never done.” —Justice Anthony M. Kennedy, speech at the annual meeting of the American Bar Association, August 9, 2003 The Right to Freedom 29 Civil Rights for Former Slaves After the Civil War, Congress passed two civil rights acts (1866 and 1875) that sought to secure the rights of freed slaves and to enforce the provisions of the Thirteenth and Fourteenth Amendments. The 1875 act especially sought to prohibit private discrimination against blacks in such matters as access to inns and public transportation. One of the central issues that emerged was whether the Thirteenth Amendment allowed Congress to outlaw “vestiges of slavery,” or the discrimination that resulted from African Americans’ previous status as noncitizens. In the Civil Rights Cases of 1883, Justice Joseph P. Bradley wrote for an 8-to-1 majority of the Supreme Court, which interpreted the Thirteenth Amendment narrowly and ruled that it did not authorize Congress to outlaw discrimination. It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the thirteenth amendment may be regarded as nullifying all state laws which establish or uphold slavery. . . .We must not forget that the province and scope of the thirteenth and fourteenth amendments are different: the former simply abolished slavery: the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of congress under them are different. . . . Under the thirteenth amendment, it has only to do with slavery and its incidents. . . . Under the thirteenth amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not. . . .When a man has emerged from slavery, . . . there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. . . . Mere discriminations on account of race or color were not regarded as badges of slavery. 30 Our Rights Justice John Marshall Harlan registered a strong dissent in the Civil Rights Cases. His view was later adopted by the court in Jones v. Alfred Mayer Co. (1968). The thirteenth amendment. . . did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. . . . [I]t established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? . . . Was it the purpose of the nation simply to destroy the institution, and then remit the race. . . to the several states for such protection, in their civil rights, necessarily growing out of freedom, as those states, in their discretion, choose to provide? Were the states, against whose solemn protest the institution was destroyed, to be left perfectly free. . . to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights that inhere in a state of freedom? . . . That there are burdens and disabilities which constitute badges of slavery and servitude, and that the express power delegated to congress to enforce, by appropriate legislation, the thirteenth amendment, may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. I do hold that since slavery. . . was the moving or principal cause of the adoption of that [thirteenth] amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. “A New Birth of Freedom” Military historians agree that the Battle of Gettysburg was the turning point of the Civil War. It also marked the time when the abolition of slavery, rather than preservation of the Union, began to emerge as a goal of the war. On November 19, 1863, President Abraham Lincoln delivered the Gettysburg Address, to dedicate the battlefield. The short speech signaled this new goal when he spoke about “a new birth of freedom.” The Thirteenth Amendment, which abolished slavery when it was ratified after the war, guaranteed freedom to all Americans. Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final restingplace for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth. The Right to Freedom 31 Fifteenth Amendment (1870) WHAT IT SAYS Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. THE VOTING RIGHTS ACT OF 1965 By 1965, a century after the Civil War, African Americans in the South still faced barriers to the right to vote, despite the Fifteenth Amendment’s guarantee. They were registered to vote in far smaller numbers than whites. When they attempted to register, discrimination and intimidation prevented them. The National Association for the Advancement of Colored People (NAACP) and the federal government pursued a strategy of suing for voting rights in individual cases, but these cases did not have as far-reaching an effect as they had hoped. Only national legislation could achieve equality in voting rights. President Lyndon B. Johnson was inspired to push for voting rights legislation when, in March 1965, a group of courageous African Americans marched from Selma, Alabama, to the state capital of Montgomery on behalf of voting rights. The marchers had gone only a few blocks when state troopers attacked them with clubs and tear gas. The Reverend Martin Luther King Jr. arrived to lead a much larger demonstration of African Americans and whites from across the nation determined to continue the march. A court issued an injunction that protected the right of the marchers to petition the government about their grievances.With this injunction, the marchers were allowed to cross the Pettus Bridge in Selma, in full view of television cameras from the national networks. As the marchers made their way to Montgomery their numbers swelled and the nation’s attention was drawn to the struggle for voting rights in the South. Coupled with the violent murder of three civil rights workers during the previous Freedom Summer, when African American and white students from the South and North worked to register southern African American voters, the Selma March demonstrated to the nation the unfair and unconstitutional treatment of African Americans in the South. President Johnson told the nation that “every American citizen must have an equal right to vote. Yet the harsh fact is that in many places in this country, men and women are kept from voting simply because they are Negroes.” He called on Congress to enact legislation that would strengthen the Fifteenth Amendment by allowing the federal government to supervise voting requirements and ensure that registered voters were actually allowed to cast their ballots. The Voting Rights Act ultimately won overwhelming approval in Congress, passing the House of Representatives by a vote of 333 to 48, and the Senate by a vote of 77 to 19. Southern states asserted that the Voting Rights Act went beyond the authority of the federal government and brought lawsuits challenging its constitutionality. The Supreme Court, in South Carolina v. Katzenbach (1965), rejected those challenges and upheld the Act. As a result, African Americans are registered to vote at rates much higher than they were before the law was passed, and the promise of the Fifteenth Amendment is closer to being fulfilled. 162 Our Constitution WHAT IT MEANS The Fifteenth Amendment prohibits the use of race in determining who can vote. The last of the three Reconstruction Era amendments, ratified shortly after the Civil War, the Fifteenth Amendment sought to advance the civil rights and liberties of the freed slaves and other African Americans. Section 2 of the amendment gave Congress the power to enforce it, by establishing federal legislation that ensures racial equality in voting. The ratification of the Fifteenth Amendment in 1870 initially resulted in African Americans voting and holding office in many southern states. Later in the nineteenth century, these states imposed poll taxes, literacy tests, and other tactics to keep African Americans from voting. The ratification of the Twenty-fourth Amendment in 1964, and the passage of the Voting Rights Act of 1965, along with a number of Supreme Court decisions, have once again guaranteed voting rights as the Fifteenth Amendment envisioned. Fifteenth Amendment 163 Fifteenth Amendment Congress passes the Enforcement Act of 1870 End of Reconstruction The Supreme Court upholds literacy tests 1870 1877 1898 Following ratification of the Fifteenth Amendment, Congress passes the Enforcement Act, which creates criminal penalties for those who interfere with voting rights. The next year, Congress passes the Force Act of 1871, which provides for federal oversight of elections if individual states are deemed unwilling to hold fair and open elections on their own. Voting by freed African Americans dramatically changes the political climate in the southern states, enabling black candidates to win seats in Congress and the state legislatures. As part of an agreement that settles the disputed election of 1876, President Rutherford B. Hayes orders the removal of troops from the states still under Reconstruction. He hopes this move will bring the North and South together. However, the withdrawal of the troops and the end of federal oversight of elections means that many southern blacks lose the voting rights they had exercised since Emancipation. Southern states also impose literacy tests for voting, on the grounds that voters need to be educated to make good decisions. Because former slaves often have little education, and because white officials administer the tests, literacy tests exclude many African Americans from voting. In Williams v. Mississippi, the Supreme Court holds that Mississippi’s constitutional amendment requiring literacy tests does not violate the U.S. Constitution, as long as it is applied equally to all applicants. Literacy tests are ruled unconstitutional Civil Rights Act creates a commission to investigate discrimination Civil Rights Act addresses racial inequities 1949 1957 1964 Although literacy tests for voting apply to both blacks and whites, they exclude more African Americans from registration because of poor education and discriminatory administration that require African American applicants to pass more difficult tests. The U.S. Supreme Court in Davis v. Schnell hold Alabama’s literacy test unconstitutional as it is clearly intended to deny the vote to African Americans and thus violates the Fifteenth Amendment. In response to low voter registration among African Americans, President Dwight D. Eisenhower proposes the Civil Rights Act of 1957—the first since Reconstruction. The law creates the Civil Rights Commission to investigate acts of interference with citizens’ right to vote and to monitor other civil rights abuses. Civil rights leaders complain that the law is weakened because it provides for violators to be tried locally, meaning that those attempting to disenfranchise blacks would gain a sympathetic jury. Responding to civil rights protests in the South, Congress passes the Civil Rights Act of 1964 after a lengthy filibuster by southern senators. The law prohibits discrimination in public accommodations, employment, education, and governmental services. The act also strengthens the Fifteenth Amendment by prohibiting discrimination in voting and makes voting requirements more uniform. 164 Our Constitution TIMELINE “Grandfather clauses” are unconstitutional 1915 Poll taxes are permitted White-only primary is ruled unconstitutional 1937 1944 Some southern states have “grandfather clauses” that allow only those men to register and vote whose grandfathers had been eligible to vote in 1867, before the federal government began pressing for voting rights for blacks. This practice effectively negates the Fifteenth Amendment. In Guinn v. United States, the U.S. Supreme Court strikes down Oklahoma’s “grandfather clause” as a violation of the Fifteenth Amendment. The term “grandfather clause” has since grown to mean any provision of law that exempts certain persons or preexisting conditions from the effect of a new regulation or requirement. After Reconstruction, many southern states impose a poll tax on anyone who wants to vote. This tactic denies the vote to many poor African Americans and whites who cannot afford the tax. In Breedlove v. Suttles, the U.S. Supreme Court rules that Georgia’s use of a poll tax violates neither the Fourteenth nor Fifteenth Amendments as they are applied to all races. Poll tax amendment is ratified Congress passes the voting Rights Act of 1965 1964 The Twenty-fourth Amendment makes it illegal for states to charge a poll tax in order to vote in federal elections. The tax falls hardest on poor voters, black and white, but has been upheld by the courts because it does not discriminate by race. In Harper v. Virginia Board of Elections (1966), the U.S. Supreme Court extends the poll tax ban to state elections. The Court holds that discrimination based on economic status is in violation of the equal protection clause of the Fourteenth Amendment as well as the newly adopted Twenty-fourth Amendment. 1965 Finding that existing federal antidiscrimination laws are not sufficient to overcome the resistance by state officials to enforce the Fifteenth Amendment, Congress adopts a comprehensive voting rights law that outlaws any racially discriminatory act that prevents African Americans from voting. The legislation gives the Justice Department power to oversee voting qualifications, suspend literacy tests, and ensure more uniform application of regulations. The Voting Rights Act is further extended in 1970, 1975, and 1982. The Democratic Party in several southern states limits participation to whites only in primary elections. The Supreme Court in Grovey v. Townsend (1935) upholds such restrictions, reasoning that political parties are organizations composed of voluntary members acting in a private capacity. The Court reverses itself in Smith v. Allwright (1944), concluding that even though administered by a private party, primary elections are an integral part of the election process and therefore subject to the constraints of the Fifteenth Amendment. Class action suit challenges a Florida law disenfranchising convicted felons 2005 The Brennan Center for Justice and New York University’s School of Law files a class action suit on behalf of 600,000 disenfranchised Florida citizens against an 1868 Florida law that permanently took away convicted felons’ right to vote—only one in seven states do so. They believe that the law is discriminatory in intent because it disproportionately affects African Americans, and, therefore, it violates the Fourteenth Amendment’s equal protection clause and the Fifteenth Amendment’s prohibition of discriminating against voters by race. In the case of Johnson v. Bush (2005), the U.S. Court of Appeals upholds the law on the grounds that it applies to all felons regardless of race. Fifteenth Amendment 165 6 Separate but Not Equal Plessy v. Ferguson (1896) On June 7, 1892, Homer Plessy waited at the Press Street railroad depot in New Orleans. He had a first-class ticket for a thirty-mile trip to Covington, Louisiana. The train arrived on time at 4:15 in the afternoon, and the nicely dressed, well-groomed young man entered the first-class carriage, took a seat, gave his ticket to the conductor, and boldly spoke words that led to his arrest and trial in a court of law. Although he looked white, Homer Plessy announced that he was a “colored man.” According to Louisiana law, he was an “octoroon”—a person whose ancestry is one-eighth black. The conductor ordered Plessy to sit in a separate car reserved for nonwhite passengers. When he refused, the conductor summoned a policeman, who arrested the disobedient passenger for breaking a state law. Because it was against the law in Louisiana for a “colored” person to sit with whites in a railroad car, Homer Plessy had become a criminal. So on this fateful day he did not travel to the town of Covington, the destination printed on his railway ticket. In fact, Plessy had never intended to go there. Instead, he started a journey to seek justice through the Louisiana courts, and if necessary at the U.S. Supreme Court. Plessy’s trip was part of a carefully made plan to use the highest law of his country, the U.S. Constitution, to overturn a racist law of his home state, Louisiana. Plessy reached his final destination in 1896, when the U.S. Supreme Court agreed to decide his case. In 1890, the Louisiana General Assembly had enacted the Separate Car Law. According to this statute “all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations, for the white, and colored races....No person or persons, shall be permitted to occupy seats in coaches, other than the ones assigned to them on account of the race to which they belong.” This law empowered the train conductors “to assign each passenger to the coach or compartment used for the race in which such passenger belongs.” If any passengers refused to sit in their assigned places, they were liable to a fine or imprisonment. There was one exception: “Nothing in this act shall be construed as applying to nurses attending children of the other race.” On September 31, 1891, a group of prominent Creole men in New Orleans formed the Citizens’ Committee to Test the Constitutionality of the Separate Car Law. The Creoles, people of mixed French, Spanish, and African heritage, belonged to a community that had originated and thrived in Louisiana long before the United States purchased that territory from France in 1803. Many of the older Creoles were well-educated, highly respected members of New Orleans society, and had not been slaves before the Civil War. Plessy v. Ferguson (1896) • 163 U.S. 537 (1896) • Decided: May 18, 1896 • Vote: 7–1 • Opinion of the Court: Henry B. Brown • Dissenting opinion: John Marshall Harlan I • Not participating: David Brewer Separate but Not Equal 53 These Creoles and their children had experienced a large measure of toleration in their dealings with white residents of New Orleans after the Civil War. Thus they particularly resented the Separate Car Law, claiming that it violated the Thirteenth and Fourteenth Amendments of the Constitution, and they vowed to overturn it through legal action in the state or federal courts. The Thirteenth and Fourteenth Amendments were enacted after the Civil War to ensure that black Americans had rights equal to those enjoyed by whites. The Thirteenth Amendment abolished “slavery or involuntary servitude” for everyone but convicted criminals. The Fourteenth Amendment provided that “persons born or naturalized in the United States...are citizens of the United States and of the State wherein they reside.” Further, state governments were prohibited from violating “the privileges and immunities of citizens of the United States,” and no state could “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.” The Creole leaders of New Orleans did not believe that Louisiana’s Separate Car Law was compatible with the literal meaning of the Thirteenth and Fourteenth Amendments. Homer Plessy’s case was not the first one planned by the Citizens’ Committee to test the constitutional validity of the Separate Car Law. Rather, Daniel Desdunes, a young Creole man whose ancestry was one-eighth African and seven-eighths European, was the voluntary protagonist in the first case contrived by the committee. On February 24, 1892, Desdunes boarded a train in New Orleans bound for Mobile, Alabama. He took a seat in the white coach, announced his identity as a colored man, and was arrested for violating the state law. His case was dismissed when the Louisiana Supreme Court ruled that the Separate Car Law could not constitutionally be enforced against passengers traveling across state boundaries, because only the Congress had power under the Constitution’s commerce power (Article 1, Section 8) to regulate interstate transportation. Plessy, however, had been an intrastate passenger when he was arrested, and his case went forward. The Citizens’ Committee invited Albion Tourgée, a New York State resident and a nationally recognized advocate for the rights of black Americans, to join local attorney James C. Walker as counsel for Daniel Desdunes in the first case to test the Separate Car Law. Tourgée and Walker also represented Plessy. The issue in Plessy’s case was straightforward. Did the Louisiana Separate Car Law violate the rights guaranteed to Plessy by the Thirteenth and Fourteenth Amendments? Judge John Howard Ferguson presided at the state district court that originally heard Plessy’s case and ruled against him. Plessy appealed to the Louisiana Supreme Court, which ruled that the state government had the power to regulate transportation strictly within the state’s borders and that “separate but equal” accommodations for persons of different races did not violate the U.S. Constitution. The U.S. Supreme Court accepted Plessy’s appeal of the state’s decision, and the federal case of Plessy v. Ferguson was decided nearly four years later, because Plessy’s lawyer, Albion Tourgée, acted very slowly to move the case forward. At first, Tourgée thought the Court’s delay in hearing arguments on Plessy’s case would be a tactical advantage. He hoped to use the time to influence public sentiment in support of his client. But this strategy did not succeed because the tide of public opinion was turning strongly against him. The Louisiana law mandating racial segregation in railroad cars was only one of many instances of legalized racial discrimination against black Americans in southern states that 54 The Pursuit of Justice were enacted after the federal government abandoned its post–Civil War policies to protect formerly enslaved persons. Most pronounced in the South, this anti–African American trend was also visible in other sections of the country. For example, there were unchallenged laws segregating blacks and whites on public conveyances not only in Florida and Alabama, but also in Pennsylvania, among other places throughout the country. And racial segregation in public schools, which had long existed under the authority of Congress in the District of Columbia, was increasingly practiced not only in the South but in other regions, too. Thus, the social context within which the Court would make its decision seemed quite unfavorable to Plessy’s cause. Despite the long odds against him, Albion Tourgée was determined to demonstrate the validity of his client’s case. So on April 13, 1896, Tourgée joined Samuel F. Phillips, an old friend and prominent Washington, D.C., lawyer, to present oral arguments for Plessy to the Supreme Court. Lawyers for Louisiana had maintained that the Separate Car Law was a constitutional exercise of the state’s power to maintain public health and safety reserved to it by the U.S. Constitution’s Tenth Amendment. They claimed that indiscriminant mingling of blacks and whites in public conveyances was a potential threat to the public good that the state was obligated and authorized to maintain. Furthermore, they insisted, their state’s law was consistent with the Fourteenth Amendment’s equal protection clause because the separate accommodations for blacks and whites were equal. As “separate but equal” was the foundation of the state’s argument, the case became known by this phrase. Tourgée and Phillips countered their adversaries’ argument by stressing the incompatibility of the Louisiana Separate Car Law with the Thirteenth and Fourteenth Amendments. The state statute, Tourgée claimed, violated the Thirteenth Amendment because it was “designed to discriminate against the colored citizens” and thereby “reduce them to a dependent and servile condition.” Racial segregation, argued Tourgée, was “coincident with the institution of slavery” because “slavery was a caste, a legal condition of subjection to the dominant class.” He said the Separate Car Law established a new type of “bondage quite separable from the incident of ownership.” Tourgée scorned the Louisiana law’s claim of “equal but separate accommodations” for the segregated passengers and asserted that any legally enforced form of racial separation violated the equal protection clause of the Fourteenth Amendment. The intention of the Louisiana law, argued Tourgée, was not to promote public health and safety, as the statute’s advocates claimed, but to promote a sense of superiority among whites at the expense of blacks. He exclaimed, “Justice is pictured as blind and her daughter, the law, ought at least to be color-blind.” Thus, Tourgée claimed, laws requiring racial discrimination are inherently unjust and unconstitutional. To the dismay of Albion Tourgée, Homer Plessy, and the New Orleans Citizens’ Committee, the Supreme Court ruled against them. In his opinion for the Court’s majority, Justice Henry B. Brown first of all narrowly interpreted the Thirteenth Amendment by holding that it prohibited only the institution of slavery and was not relevant to other race-based distinctions. Brown said that a law “which implies merely a legal distinction between the white and colored races... has no tendency to...re-establish a state of involuntary servitude.” Thus, according to Brown, the Separate Car Law did not violate the Thirteenth Amendment. Next, Justice Brown rejected the claim that Louisiana had violated the Fourteenth Amendment’s requirement for “equal protection of the laws.” He Separate but Not Equal 55 acknowledged that the purpose of the amendment was “to enforce the absolute equality of the two races before the law.” But, he added, “it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” Thus, Brown made a sharp distinction between social and political equality and argued that a state law providing “separate but equal” facilities for blacks and whites did not violate political equality, or the equal status of citizens, and therefore was compatible with the Fourteenth Amendment. He noted, “the establishment of separate schools for white and colored children [in several southern and northern states], which has been held to be a valid exercise of the legislative power even by courts of States [such as Massachusetts] where the political rights of the colored race have been longest and most earnestly enforced.” By this standard, argued Brown, “we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable.” According to Justice Brown, it was a reasonable policy for the public good to provide “separate but equal” facilities for persons of different races. After all, both whites and blacks were equally prohibited from sitting in the railway cars assigned to the other race. And the different carriages, though separate, equally accommodated the needs of each racial group. He emphatically rejected the claim that racially segregated facilities implied inferiority or superiority of one race relative to the other. Justice Brown wrote, We consider the underlying fallacy of the plaintiff ’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.... Laws permitting, and even requiring their separation in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. Justice Brown maintained that the Fourteenth Amendment was not intended to enforce social equality or to abolish distinctions based on race. He wrote, “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.” In conclusion, he justified his interpretation of the Fourteenth Amendment with this statement: “If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” The lone dissenter in this case, Justice John Marshall Harlan, strongly criticized the opinion of the Court. Although he had been a slaveholder in Kentucky before and during the Civil War, Harlan subsequently developed an unyielding commitment to the equal rights of blacks and whites, which were guaranteed by the Constitution. Taking a cue from Tourgée’s presentation to the Court, Justice Harlan wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” He insisted that the “separate but equal” doctrine established by the Court in the Plessy case was not compatible with the Fourteenth Amendment’s guarantees of personal liberty and equal legal protection. Finally, he criticized 56 The Pursuit of Justice Justice Brown’s attempt to justify the Separate Car Law as reasonable. Harlan said it is the responsibility of the political branches of government to determine whether a public policy is reasonable. By contrast, it is the Court’s duty to determine the constitutionality of statutes, not their reasonableness, and the state law at issue, he held, was manifestly at odds with the words of the U.S. Constitution. Justice Harlan presciently declared that the Plessy decision would become a precedent in support of racial segregation. For the next fifty-eight years, the “separate but equal” doctrine established by the Court in Plessy v. Ferguson was “settled law,” that is, it was a well-established precedent that guided subsequent decisions of the Court. Consequently, the precedent set by Plessy bolstered pervasive state-ordered racial segregation throughout the South and in some other parts of the country as well. It seems incredible to us today to recall that state laws required black persons to use separate toilets, water fountains, streetcars, and waiting rooms. They had to attend separate schools and were segregated from whites in prisons, hospitals, hotels, restaurants, parks, theaters, cemeteries, and other public facilities. “Separate but equal” was the law, but the reality of racial segregation usually was very unequal facilities for black Americans, which handicapped them severely in all facets of life, irrespective of the Constitution’s lofty guarantees of equal rights to liberty and justice for all. Legal challenges to racial segregation were defeated in the courts, where the Plessy precedent prevailed until it was overturned unanimously by the U.S. Supreme Court in the 1954 case of Brown v. Board of Education. Homer Plessy, although he courageously resisted an unjust law, failed to achieve justice in his own time. And John Marshall Harlan, strong and brave in his sharp dissent against a popular Supreme Court opinion, endured public contempt and repudiation. In the long term, however, they inspired others to fulfill their common quest for equal justice under the Constitution; and today Plessy and Harlan, not their adversaries, have an honored place in our history. Separate but Not Equal 57 “Our Constitution is Color-Blind” Justice John Marshall Harlan wrote one of the greatest dissenting opinions in the history of the Supreme Court in response to the majority’s decision in Plessy v. Ferguson. This former slaveholder from Kentucky fervently defended the constitutional rights of black Americans, many of whom had once been slaves. A product of his times, Harlan harbored racially biased opinions, as certain sentences in this dissenting opinion indicate. But his commitment to constitutional principles and values, the very idea of equal rights under the law, superseded any reservations he may have held about the capabilities or character of nonwhite Americans. Most of all, he rejected the very idea of a color-conscious interpretation of the U.S. Constitution. Rather, he believed that racial identity was not relevant to constitutional guarantees of civil rights and liberties. Justice Harlan predicted accurately the deplorable consequences of the Court’s decision in the Plessy case, foreseeing that this decision one day would be viewed almost as negatively as the Court’s 1857 ruling in Scott v. Sandford. Harlan also was well aware that the majority of Americans in his time disagreed with him on issues of race relations, but he looked beyond the responses of his contemporaries. His dissent was an appeal to Americans of the future, who might be sufficiently inspired and instructed by his words to correct the mistakes of the past and achieve durable justice in the relationships of black and white Americans. In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.... It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in questions had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches 58 The Pursuit of Justice occupied by or assigned to white persons....The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens.... If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court-room and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?... The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power.... But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class or citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.... The recent amendments of the Constitution [Thirteenth, Fourteenth, and Fifteenth], it was supposed, had eradicated these principles [of the Dred Scott decision] from our institutions. But it seems that we have yet, in some of the States, a dominant race— a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision...will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution....The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.... The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds. . . . We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.... I am of opinion that the statue of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous.... For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority. Separate but Not Equal 59 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(23 AM ABA Groups > Division for Public Education > Publications > Insights on Law and Society > Insights on Law and Society > Winter 2017 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government Additional Resources Volume 17 Issue 2 by • The Original Intent of the Fourteenth Laura F. Edwards is a history professor at Duke University and a fellow at Amendment: A Conversation with Eric Foner the American • Second Founding: The Story of the Fourteenth Amendment Bar Foundation. Her most recent book is A Legal History of the Civil War and Reconstruction: A Nation of Rights. Today, many Americans assume that it is the federal government’s job to protect their rights, which they define broadly to include individual liberties and access to physical spaces, social organizations, and economic opportunities as well as equal treatment before the law. If they think about history at all, they assume that it is this way now because it was always that way. But it was not. The legal context that so many of us now take for granted traces back to the Fourteenth Amendment, which established birthright citizenship, linked citizenship to civil rights and provided for federal oversight of those rights. In history textbooks, the amendment usually appears in the context of discussions about the extension of existing civil rights to African Americans after the Civil War, during Reconstruction. As significant as those changes were, how-ever, the Fourteenth Amendment did much more. Its provisions meant that all Americans, not just African Americans, could appeal to the federal government to protect rights that used to be within the exclusive jurisdiction of states. As people used the amendment to challenge state law, rights not only became more accessible but also acquired new meanings. The Fourteenth Amendment thus dramatically changed the legal order of the United States, transforming all Americans’ Discussion Questions 1. Why did lawmakers think the Fourteenth Amendment was necessary, following the Civil War? 2. How was the Fourteenth Amendment “transformative,” according to the author? What implications has the transformation had for individual rights? 3. What new questions did the Fourteenth Amendment raise in courts? What questions did it answer? What questions are still unanswered, and what do you think they mean for Americans? Suggested Resources Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights, Cambridge University Press, 2015. https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 1 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government relationship to rights and the federal government. 8/19/17, 11(23 AM Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in PostWar America, Holt Paperbacks, 2007. States, Rights, and Citizenship before the Fourteenth Amendment Fourteenth Amendment Until ratification of the Fourteenth Amendment in 1868, states had the power to define and distribute rights. The Thirteenth Amendment, which abolished slavery in 1865, did not change that situation, as a group of former slaves in Tennessee knew all too well. With the abolition of slavery, they wrote, “our prayers were answered, and the secret hopes of our hearts were realized.” But while “legally free,” they still did not have the same rights as white Tennesseans. Tennessee, like other states of the former Confederacy, passed laws constraining Africans Americans’ basic rights after the Civil War and before the Fourteenth Amendment, limiting access to the courts and restricting property rights. “We have no where to look for protection, save to the United States Authority. . . . But we want some way of easily bringing our cases before them,” they wrote. In appealing to federal authority to intervene in state law, these African Americans were asking for something new. Before the Fourteenth Amendment, the federal government dealt with the rights of individuals only when those people or the legal issues in which they were involved were not within a state’s jurisdiction: in the territories, in relation to Indian nations, in the District of Columbia, and in federal cases, of which there were relatively few. Even the rights enumerated in the U.S. Constitution’s Bill of Rights remained out of reach for most Americans because these rights applied only in cases that involved federal law, not state law. It was impossible to appeal a case from state courts to federal courts based on a violation of the federal Bill of Rights. Eric Foner, Reconstruction Updated Edition: America’s Unfinished Revolution, 1863-1877, Harper Perennial Modern Classics, 2014. SUBSCRIBE TO READ MORE Insights on Law & Society is being restructured. Please take a short survey about how you use Insights, and what you might like to see in future issues of the magazine. Stay tuned for more information on the Insights Fall 2017 issue. Past Issues Digital versions of past issues (prior to 2012) are also sold separately at $1.50 for those interested only in specific topics covered by issues of the magazine. Discounts are applied to bulk print orders. For questions about purschasing or subscribing to Insights, call Customer Service at (800) 285-2221. https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 2 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(23 AM Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanba r.org The federal government did not even attach rights to citizenship. In fact, there was no clear definition of citizen-ship at all in federal law. The 1790 Naturalization Act did limit citizenship to those who were free and white. But that act and subsequent legislation addressed the situation of new immigrants who sought application for naturalization, not to those who were born here. When asked in 1863 to determine whether African Americans could be citizens of the United States, Attorney General Edward Bates’s answer underscored the ambiguity of citizenship generally. “Who is a citizen? What constitutes a citizen of the United States?” he asked rhetorical-ly. He found no definition in either federal legislation or judicial decisions. Even the U.S. Supreme Court’s infamous decision in Dred Scott v. Sandford (1858), which denied citizenship to all people of African descent, did not resolve the question because it was such an outlier and generated such controversy. “Eighty years of practical enjoyment of citizenship, under the Constitution,” he concluded, “have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly.” To the extent that there was a link between U.S. citizenship and rights at all, it was at the state level, where there was a concept of state citizenship, which did establish claims to rights, as defined within states. States’ jurisdiction over Americans’ legal status was why some sanctioned slavery and others did not. And it was not just slave states that restricted Americans’ rights. All states limited or negated the rights of African Americans, all women, many propertyless men, and a range of other racial, ethnic, and religious minorities as well. No free woman of any race, married or single, could claim the full array of civil rights or https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 3 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM political rights. Many men found themselves in a similar situation. Free blacks, in particular, had very limited rights, even if they lived in free states, many of which had laws nearly identical to those imposed on the freedpeople in Tennessee in 1865. To be sure, political leaders, regard-less of party affiliation, invoked rights in expansive terms, often in connection to liberty, freedom, and equality, with the implication that they could accomplish those ends. But, in law, rights were neither as capacious nor as powerful as the political rhetoric suggested and were focused narrowly on matters involving the ownership and transfer of property and access to the legal venues that dealt with such matters. States did have bills of rights that were similar to the federal Bill of Rights. But the fact that states also had broad powers to regulate in the name of the public good made those rights contingent, not absolute. The application of rights, moreover, tended to preserve existing inequalities because they were intend-ed to uphold the interests of those who owned property, not those without. Fourteenth Amendment States’ authority over Americans’ rights, once accepted without comment, appeared increasingly problematic after the Civil War. The complaints of former slaves, such as the Tennessee petitioners, acquired resonance because of the Republican Party’s policies during the Civil War. Theirs was the nation depict-ed by President Abraham Lincoln in the Gettysburg Address, the one “our fathers brought forth on this continent . . . conceived in liberty and dedicated to the proposition that all men are creat-ed equal.” The Fourteenth Amendment wrote that nationalizing political rhet-oric into the legal order of the nation. Even so, the commitment to states’ tra-ditional powers placed definite limits on the federal government’s authority. The Civil Rights Act of 1866 fore-shadowed the Fourteenth Amendment. Its formal title, “An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication” expressed the basic intent. The act clarified the vexing question of African Americans’ citizen-ship by declaring “all persons born in the United States and not subject to any foreign power” to be citizens, although it specifically excluded Indians. It then affirmed access to those rights that had been https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 4 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM denied African Americans in Tennessee and in other states. All citizens, “of every race and color, without regard to any previous condition of slavery or involuntary servitude shall have . . .” the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens. They also “shall be subject to like punishment, pains, and penalties.” The act made the denial of rights a crime and prescribed penalties for convicted offenders. It also provided for the removal of such cases to federal courts, allowing defendants to bypass hostile state and local jurisdictions—what the Tennessee petitioners had requested. Proponents of the 1866 Civil Rights Act, however, feared that its provisions were insecure. The U.S. Supreme Court could declare it unconstitutional at any time, and Congress could gut it or even repeal it. Such concerns led to the recommendation that the act’s basic provisions be written into the U.S. Constitution in the form of a new amendment. The Fourteenth Amendment’s first and most famous provision clarified the definition of U.S. citizenship: “All persons born or naturalized in the Unit-ed States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In so doing, the amendment went beyond the 1866 Civil Rights Act, which affirmed the citizenship of African Americans but referred only to those people born within the United States. The Fourteenth Amendment included naturalized citizens because it was intended to offer a general https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 5 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM definition of citizenship. In so doing, the new amendment not only asserted federal authority by applying a uniform definition of citizenship but also forged a direct connection with its citizens. The remaining sentences of the first provision connected citizenship to civil rights, turning the 1866 Civil Rights Act’s list of guaranteed rights into gen-eral promises of equity. “No State,” the amendment promised, “shall make or enforce any law which shall abridge the privileges or immunities of citi-zens of the United States; nor shall any State deprive any person of life, liber-ty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment then charged the federal government with the protection of those rights, although it framed that power in the passive voice. It promised that “no state . . . shall abridge” citizens’ rights. The passive construction spoke volumes about contemporary political currents, particularly widespread doubts about the wisdom of extending federal authority into areas once exclusively controlled by the states. It was not until the final clause that the rhetorical curtain was lifted to reveal the enhanced authority of the federal government: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” That statement, remark-able in its brevity, nonetheless turned what might have been mere political aspirations into tangible goals by giving Congress the enforcement power. The Fourteenth Amendment did not give the federal government direct authority over civil rights, even though many congressional Republicans had argued for that. In fact, the amendment did not grant rights to anyone at all, not even African Americans. It gave the federal government a negative power: to prohibit states from discriminat-ing on the basis of race or previous servitude. That situation left states with the authority they traditionally held to determine the rights of American citizens. African Americans could only claim the same rights that their states gave—or not—to others. Only later in the twentieth century was the Fourteenth Amendment reinterpreted to allow Americans to challenge state laws by claiming rights specified in the U.S. Constitution. The Legal Legacy The Fourteenth Amendment linked citizenship to rights but did https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 6 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM not define the rights of citizens. In that sense, it captured the political conflicts of the time and preserved them in legal amber: What were the privileges and immunities of citizens? What constituted due process of law and equal protection? Under what circumstances would the federal government intercede? How would it do so, given the hostility of state governments and without the necessary administrative support? After all, the justice department was only a bare-bones operation, with a handful of lawyers in the late nineteenth century. In fact, there were no clear answers to those questions then, and they remain contested today. The conflicts surrounding the Fourteenth Amendment were evident in the assault on African Americans’ rights after Reconstruction. In 1867, congressional Republicans required Confederate states to pass the Fourteenth Amendment for readmission to the United States, which forced them to reframe their constitutions and laws to recognize African Americans’ civil rights. Conservative white lawmakers, however, found ways around the amendment when they regained political power in the 1870s. The federal government—the legislative, executive, and judicial branches—all failed to circumvent those efforts. While some in the federal government remained committed to the Fourteenth Amendment, they faced an uphill battle in realizing its promises, a struggle made more difficult by continued resistance, even with-in the federal government, to the use of federal power to override state policy, even for flagrant violations of African Americans’ rights. The Fourteenth Amendment, nonetheless, provided the means by which Americans could, in theory, access federal power. It did not take them long to do so, as evidenced in Bradwell v. State and The Slaughter-House Cases, both of which were heard by the U.S. Supreme Court in 1873. Myra Bradwell played an influential role in Illinois legal circles as editor of the Chicago Legal News, the publication on which many lawyers in the state depended to keep current on the law. It was, then, deeply ironic when the Illinois state legislature—filled with lawyers who read her publication—refused to consider her application to the bar. Not one to be cowed, Brad-well challenged the decision, making creative use of the Fourteenth Amendment. She admitted that the opportunity to apply to the bar was not, in itself, a right. Even so, it was connected to her right to pursue her livelihood and her property interests—issues of central importance to https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 7 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM women, who lost property rights when they married because of the laws of coverture. The state, she argued, had violated the Fourteenth Amendment by denying rights to her that were granted to other (male) citizens. The U.S. Supreme Court rejected the first part of the argument, which focused on what qualified as a protected right, thereby evading the second part, which dealt with Fourteenth Amendment’s application to women. Still, her use of the amendment illustrates the broader transformation underway. It is difficult to imagine stranger legal allies than Myra Bradwell and the New Orleans butchers in the Slaughter- House Cases. The butchers were challenging a local ordinance that regulated the slaughtering of meat, regulations that were not particularly unusual. But the butchers in New Orleans had a particular beef (so to speak) with their government: they were white men, mostly Democrats, who characterized the regulation as overreach on the part of the Republican Party, then in control of the city. With the backing of their party’s leadership, they reached for the laws of their political opponents and used the Fourteenth Amendment to protect what they saw as their right— their right to pursue a livelihood as others could. The Court rejected the butchers’ claims, just as it did Bradwell’s, upholding the states’ rights to regulate for the public good. In the Slaughter-House Cases, the Court was also explicit in trying to limit the meaning of rights in the Fourteenth Amendment, insisting that it was designed to protect the civil and political rights of African Americans—that is, their claims to those rights already recognized in state law. It was not intended for the expansive uses to which the butchers wished to put it. In both cases, the judges sought to contain the multiplication of rights. Rights, however, continued to expand. In the late nineteenth century, federal courts recognized exactly the kinds of economic “rights” that Myra Bradwell and the New Orleans butchers had claimed. Another dramatic example includes the history of access to public venues and services, such as streetcars, railroads, restaurants, hotels, and even government jobs and education. Access to such venues and services was not considered a civil right and had been restricted through state and local law, particularly for African Americans. But after the Civil War, African Americans framed claims to access in terms of rights that the federal government should protect, through the Fourteenth Amendment. The 1875 Civil Rights Act acknowledged https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 8 of 9 The Fourteenth Amendment: Transforming Our Relationship to Rights and the Federal Government 8/19/17, 11(24 AM such claims as rights.6 Those provisions were subsequently declared unconstitutional, a decision that ultimately sanctioned segregation. But cases involving access to public space continued to cast the issues in terms of rights protected by the Fourteenth Amendment, a characterization that was ultimately accepted and institutionalized later in the twentieth century, through the pressure of the civil rights movement. The implications, however, changed all Americans’ expectations about hiring and promotion practices and college admission, as well as access to public spaces and services. As a result of other legal challenges in the twentieth century, more-over, the U.S. Supreme Court extended the Fourteenth Amendment to include rights in the U.S. Constitution, providing for something like the federal standard of rights envisioned by some during the Civil War era and shifting power away from states even more. Conclusion In positioning the federal government as the protector of rights, the Fourteenth Amendment enhanced the importance of rights in the legal order. It not only extended rights—at least in theory— to more people, particularly African Americans, but also made rights a means of accessing federal authority to challenge state policy. Americans embraced their new relationship to rights and federal authority, insisting that the federal government act on their conceptions of rights—conceptions that reached far beyond the rights allotted to them by states and even those initially protect-ed in the 1866 Civil Rights Act. Those efforts, however, often resulted in conflict, because there was no consensus about definition of rights, either at the time of the Fourteenth Amendment’s ratification or now—and those conflicts are also the amendment’s legacy. https://www.americanbar.org/groups/public_education/publications/insi…inter2017/the-14th-amendment-transforming-relationship-to-rights.html Page 9 of 9 Thirteenth Amendment (1865) WHAT IT SAYS Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. THE CONSTITUTION PROPELS THE CIVIL RIGHTS MOVEMENT Joseph Lee Jones and his wife, Barbara Jo, were employees of the Veterans Administration. In 1966 they wanted to purchase a new home in the Paddock Woods subdivision in St. Louis County, Missouri. Paddock Woods was being developed by the Alfred H. Mayer Company, which planned to divide the land into one hundred lots and build homes on them. The Joneses visited Paddock Woods, toured a model house, and informed the real estate agent handling the offering that they wanted to buy one of the houses. But because Mr. Jones was an African American, the agent refused to consider his purchase offer. The Joneses sued the company, charging that it had taken its actions solely on the basis of race. This violated the 1866 Civil Rights Act, which made it illegal to refuse to sell property to people because of the color of their skin. They did not seek money damages, just a court order that the real estate developer could not refuse to sell them a house. Missouri and other southern states had passed laws that made it difficult for African Americans to buy property, and the question was whether the Fourteenth Amendment had made these laws unconstitutional. A lower court dismissed Jones’s lawsuit on the grounds that there were no precedents for applying constitutional restrictions on government actions to private conduct. Nor did the federal law prohibit a private company from refusing to sell its property to African Americans. However, in Jones v. Alfred H. Mayer, the Supreme Court reversed this ruling. The justices pointed out that nothing in the language of the Civil Rights Act said that the federal law only applied to government actions, and that nothing in the history of the passage of the law suggested that Congress intended it to contain an exception for private property owners. Moreover, the Supreme Court found that the Thirteenth Amendment had granted Congress the power to pass the Civil Rights Act. The amendment specifically abolished slavery and involuntary servitude and gave Congress the power to pass all laws necessary to enforce the amendment. One of the factors that separated slaves from free people was that slaves were not allowed to own property, because they themselves were considered property. The Supreme Court concluded that the Civil Rights Act was intended to remove such badges of slavery. As long as African American citizens who wanted to buy or rent a home could be turned away simply because they were not white, the Supreme Court declared they “cannot be said to enjoy the same right as is enjoyed by white citizens to purchase and lease real and personal property.” 154 Our Constitution WHAT IT MEANS In 1863, President Abraham Lincoln issued the Emancipation Proclamation based on his war powers. It freed the slaves held within the Southern states that were in rebellion against the United States. The proclamation did not address the issue of slaves held in the border states that remained within the Union. Following the end of the war, Congress passed a constitutional amendment to end slavery throughout the United States. Submitted to the states, it was speedily ratified. Although the Supreme Court initially had doubts over whether the amendment covered anyone other than African Africans who had been enslaved, it later held, in the Slaughterhouse Cases (1872), that it would apply to “Mexican peonage or the Chinese coolie labor system” or any other system of forced labor. The courts have also ruled that the Thirteenth Amendment forbids “peonage,” the practice of forcing people to work to pay off their debts against their will. But the Supreme Court has rejected claims that mandatory community service, taxation, and the military draft are involuntary servitude under the Thirteenth Amendment. “I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” —Abraham Lincoln, Emancipation Proclamation (1863) Thirteenth Amendment 155 Thirteenth Amendment President Lincoln issues the Emancipation Proclamation Congress passes the Peonage Act Civil Rights Act of 1875 declared unconstitutional 1863 1867 1883 During the Civil War, President Lincoln issues the Emancipation Proclamation, declaring that all persons held as slaves in areas under rebellion are free from that point forward. The proclamation does not cover areas loyal to the Union. Lincoln uses his war powers as President to issue the proclamation, but members of Congress call for a constitutional amendment. The Peonage Act is written to enforce the Thirteenth Amendment’s ban on “involuntary servitude.” Under this law, no one in the United States can be forced to work against his or her will even if one person is indebted to another. In addition to physically restraining or harming someone, the use of threats to get someone to work is also illegal. This law does not apply to prisoners convicted of a crime. The U.S. Supreme Court strikes down the Civil Rights Act of 1875, which makes it a crime for the operators of hotels, theaters, and other public accommodations to discriminate on the basis of race. The Court holds that Congress does not have the power to enact this broad ban on the actions of a private person or business. The law cannot be justified under the Thirteenth Amendment because the amendment only bars slavery and involuntary servitude. The Court reasons that refusing to allow blacks to use hotels, restaurants, or other public accommodations is not a “badge of slavery.” The military draft is not involuntary servitude Striking workers can be made to return to work Thirteenth Amendment is used to protect against racial discrimination 1918 1949 1968 In several consolidated cases, known as Arver v. United States, men who have been drafted into the military during the First World War challenge the government’s action as a violation of the Thirteenth Amendment. The Supreme Court finds that the Thirteenth Amendment does not protect citizens from mandatory military service in times of war. In UAW v.Wisconsin Employment Relations Board, the Supreme Court decides that court orders requiring striking workers in labor disputes to return to work do not violate the Thirteenth Amendment. The Court finds that as workers have the right to quit their jobs, no involuntary servitude exists. In Jones v. Mayer, the Supreme Court upholds an 1866 law that gives all persons regardless of race the right to buy and sell property. The Court holds that Congress as the power under the Thirteenth Amendment to prohibit private businesses from discriminating against people of color. The Court declares that the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the nation cannot keep. 156 Our Constitution TIMELINE Labor contracts are not considered involuntary servitude 1897 Laws allowing forced labor are found unconstitutional Obligating convicts to work off fines is involuntary servitude 1903 1914 Sailors working on the commercial ship the Arago in California find themselves in jail when they try to quit. Local marshals bring them back to the ship and force them back to work. The sailors sue, claiming that the forced labor is a violation of the Thirteenth Amendment’s ban on involuntary servitude. But, in Robertson v. Baldwin, the Supreme Court rules that there has not been a Thirteenth Amendment violation. The men had all signed employment contracts, so their labor is not “forced” and they have an obligation to complete the work they have contracted to do. In a series of cases known as the Peonage Cases, the Supreme Court declares unconstitutional an Alabama law that allows landowners to force farmers to work off their debts or face criminal charges and possible prison. A number of sharecroppers (farmers who rent the land they farm) who have fallen behind in their payments to the landowners challenge the law as a violation of the Thirteenth Amendment. The Supreme Court agrees that this is involuntary servitude because the farmers are prevented from seeking other employment and thereby finding alternative ways of paying the debt. In United States v. Reynolds, the Supreme Court finds unconstitutional an Alabama law that allows people to pay off the fines of someone convicted of a misdemeanor, thus freeing the convict from jail, on the condition that the convict works to pay off the debt. Finding that the law allows for “involuntary servitude,” the Court notes that the work required to pay the debt can be harsher than if the convict had been sentenced to imprisonment at hard labor in the first place. A baseball player sues over being traded without his consent Mandatory “community service” in schools is not involuntary servitude Bush signs national security directive against human trafficking 1972 Curt Flood, one of baseball’s top players, is traded to the Philadelphia Phillies without his consent and is not allowed to shop his talents to other teams in the league. Because Flood had the option to quit playing baseball altogether, the Supreme Court in Flood v. Kuhn denies his claim that the trade violates the Thirteenth Amendment’s prohibition on involuntary servitude. 1993 In Steirer v. Bethlehem Area School District, a U.S. court of appeals rules that a high school community service requirement does not constitute involuntary servitude prohibited by the Thirteenth Amendment. Growing numbers of school districts thereafter add community service to the requirements needed for a high school diploma. 2003 Calling human trafficking “a modern day form of slavery,” President George W. Bush signs a directive to crack down on those who deal in the buying and selling of people (usually in the sex trade industry) both here and abroad. The executive order establishes the cabinet-level President’s Interagency Task Force to Monitor and Combat Trafficking in Persons. Thirteenth Amendment 157
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