On a spring day in Colfax, Louisiana, more than a hundred black men sat huddled in a courthouse. Less than a decade earlier they’d been enslaved, while Union and Confederate armies bloodied themselves on distant battlefields. Five months earlier they’d cast ballots in a rigged election, then watched as white supremacists and Reconstructionist Republicans both declared themselves the lawful winners of that race. Weeks earlier, they’d occupied the courthouse, believing that whoever controlled it would control the local government. Now, they waited, with only one gun for every two men and barely enough ammunition for each of them to fire two shots.
For days, as the freedmen held the courthouse, a former Confederate officer who was also the white supremacist candidate for sheriff gathered loyalists from nearby farms. On April 13, 1873, he marched on the courthouse with a small army, more guns than men, and a cannon. In short order, this racist army defeated the freedmen, set fire to the courthouse, and massacred most of the former slaves.
This Colfax Massacre offered the Supreme Court one of its first big tests under the new constitutional regime that emerged after the Civil War — and the Court failed this test completely. Though a prosecutor convinced a jury dominated by Southern white men to convict three members of the white supremacist mob of violating the civil rights of the men that they murdered, the justices tossed these convictions out in United States v. Cruikshank. Former slaves, Chief Justice Morrison Waite wrote, “must look to the States” to vindicate many of their constitutional rights. He wrote these words as murderous racists were rapidly seizing control of state governments in the South.
Almost 140 years after Cruikshank, the Supreme Court offered a very different take on the Constitution’s relationship with the states. “The Constitution promises liberty to all within its reach,” Justice Anthony Kennedy began in Obergefell v. Hodges, and this promise of liberty may not be abridged by state lawmakers.
Former slaves, Chief Justice Morrison Waite wrote, “must look to the States” to vindicate many of their constitutional rights. He wrote these words as murderous racists were rapidly seizing control of state governments in the South.
Thursday marks the 147th birthday of the Fourteenth Amendment. Over the course of its nearly century-and-a-half of life, this amendment — and the broader vision of equality and human rights that it offered — was nearly strangled in its cradle by the Supreme Court of the United States. It was twisted into a weapon wielded by America’s wealthiest and most powerful men. And then it emerged, nearly a century later, as what it was always intended to be — a shield for many of the most vulnerable men and women in the nation.
The path from Cruikshank to Obergefell, in other words, was not an easy one. Rather, as I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted it was riddled with missteps and even deliberate attempts to mangle the Constitution. And the Fourteenth Amendment’s promise of a freer, more equitable America came under attack almost immediately after its words were written into our founding document.
The Great Golgatha
Before the Civil War, most of protections enshrined in the Bill of Rights were not “rights” in the way we understand this term today. As the Supreme Court explained in 1833, “[t]he Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States.” Thus, Chief Justice John Marshall reasoned in Barron v. Baltimore, key provisions of the Bill of Rights “must be understood as restraining the power of the General Government, not as applicable to the States.”
The Fourteenth Amendment fundamentally changed this framework. It provides that anyone born in the United States and subject to its laws is a citizen. It establishes that no state may deny any American “the privileges or immunities of citizens of the United States,” and, in what may be the amendment’s most radical turn, it provides that there are some rights which we all enjoy simply because we are human. No state may “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 primary drafter of this amendment, Ohio Rep. John Bingham, anticipated that it would also usher in a new understanding of the Bill of Rights. “The privileges or immunities of citizens of the United States,” Bingham explained, “are chiefly defined in the first eight amendments to the Constitution of the United States.” Thus, Bingham imagined that his amendment would require states to honor protections such as the right to free speech and the right not to be subject to unlawful searches or seizures that previously were only enforced against the federal government.
The Supreme Court, however, had other ideas.
In the middle of the nineteenth century, one in twelve residents of New Orleans died every year often from outbreaks of disease. . . . One physician described the city as a “great Golgatha.”
Ironically, the Court began to dismantle the Fourteenth Amendment in order to ward off a racist effort to defeat Reconstruction. John Archibald Campbell was a former Supreme Court justice who left the bench shortly after the beginning of the Civil War to become a senior official in the Confederate war department. After his foray into treason ended in defeat, the former Justice Campbell established himself as one of the nation’s leading advocates for white supremacy. And he soon transformed a battle over an early environmental law into a proxy war against black participation in government.
The 1868 elections elevated a former Union officer to Louisiana’s governorship, and it also elected a legislature dominated by the Party of Lincoln. Thirty-five members of the new legislature were African American, just one fewer than the total number of Democrats.
One reform this integrated legislature enacted was a law targeting the toxic levels of animal pollution in America’s unhealthiest city. In the middle of the nineteenth century, one in twelve residents of New Orleans died every year often from outbreaks of disease. An 1851 study of New Orleans and Boston found twice as many deaths in the former city, even though Boston had twice as many residents as New Orleans. One physician described the city as a “great Golgatha.”
The city’s slaughterhouses were a major contributor to these deaths. Often built upriver of the intake pipes that supplied the city’s water, the slaughterhouses would frequently dispose of blood, offal and other rotting animal waste by dumping it into the water. Slaughterhouses built further away from water would drive leaking carts filled with animal waste through the city to be discarded in the river. Others discarded their offal, in varying states of decay, into the streets and gutters of New Orleans. Still others simply allowed their waste to fester on their own land.
The new state legislature’s solution to this problem was a law consolidating the city’s slaughterhouses into one grand slaughterhouse positioned so that it would not pollute the city’s water supply. Though butchers were forbidden from operating their own slaughterhouses, the law also contained a detailed schedule of fees limiting how much the new complex could charge individuals to use its facilities, and it imposed significant fines if the slaughterhouse’s operators refused to allow a healthy animal to be slaughtered therein. Thus, the act required all butchers to slaughter their cattle on one location, but it also guaranteed equal access to the grand slaughterhouse. And it ensured that these butchers would only be charged reasonable fees. An inspector would prevent diseased meat from entering New Orleans’s food supply, and the city’s residents would enjoy clear water untainted by rotting animal waste.
For Campbell, however, any law enacted by a racially integrated legislature was illegitimate. “We have Africans in place all about us,” he wrote his daughter in 1871. Adding that the South “will be a desolation until there is a thorough change of affairs in all the departments of government.”
To combat the slaughterhouse law — and strike a blow at the state’s Reconstruction government in the process — Campbell contrived a claim that one of the “privileges or immunities” protected by the Fourteenth Amendment was the right to operate a slaughterhouse in defiance of the state law. “Can there be any centralization more complete or any despotism less responsible,” he wrote in a brief he eventually filed in the Supreme Court, “than that of a State legislature concerning itself with dominating the avocations, pursuits and modes of labor of the population[?]”
In a 5–4 decision, the Supreme Court rejected this claim. “[N]o one can fail to be impressed,” Justice Samuel Miller wrote in the Slaughterhouse Cases, “with the one pervading purpose found” in the Constitution’s Reconstruction amendments — “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” That freedom did not include the right of slaughterhouse owners to follow a business model that quite literally poisoned their neighbors.
For Campbell, any law enacted by a racially integrated legislature was illegitimate. “We have Africans in place all about us,” he wrote his daughter in 1871. Adding that the South “will be a desolation until there is a thorough change of affairs in all the departments of government.”
Yet, while Miller turned this attack on rule by integrated government aside, he also read the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” into near-oblivion in the process. Denying the revolutionary purpose of this amendment, Miller rejected the idea that this amendment “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”
Thus, Miller laid the groundwork for Cruikshank which rested, at least in part, on the idea that the Bill of Rights cannot be enforced against the states. Similarly, while late nineteenth century justices would, occasionally pay more heed to the Fourteenth Amendment’s promise of equality, the century culminated in the Court’s pro-segregation decision in Plessy v. Ferguson. By the time the sun rose on the twentieth century, the Fourteenth Amendment’s promise of a nation that afforded basic rights to all of its citizens was largely a dead letter.
And then the Supreme Court took this amendment, and they transformed it into something far more sinister.
The Right To Be Exploited
Nine years after Plessy, the Supreme Court handed down its 1905 decision in Lochner v. New York, a decision that is now held up as emblematic of a decades-long era where the justices gave themselves the power to censor economic regulations and frequently advanced the interests of America’s most fortunate citizens. Not all of the decisions that fit this pattern were decided under the Fourteenth Amendment — the Court fabricated a different doctrine to strike down federal child labor laws and to rescue a sugar monopoly from antitrust law. Nevertheless, the Fourteenth Amendment became one of the most potent tools management could use to free itself from laws obligating it to treat its workers with dignity.
Lochner was a case about bakery workers forced to work grueling hours in conditions no less disgusting than pre-Reconstruction New Orleans. In many bakeries, “sewage pipes leaked raw contents on bakery workers, while roaches lined bakery walls.” Frequently located in basements, the bakeries “were hot dungeons heated by lit ovens, and many lacked any flooring to speak of. Those that did often had rotten floors riddled with rat holes.” The average baker worked between 13 and 14 hours a day in these conditions. Often they were required to sleep on the very same tables where they kneaded the dough.
In many bakeries, “sewage pipes leaked raw contents on bakery workers, while roaches lined bakery walls.”
Though New York enacted a law limiting baker’s hours to ten a day and sixty per week, a 5–4 Court struck this provision down in Lochner, resting the decision on a so-called “right to contract” that it read into the Fourteenth Amendment. The “right to contract” was, essentially, a right to be bound by nearly any contract a worker agreed to, no matter how desperate the circumstances or how uneven the bargaining power that forced them to agree to such a deal. Thus, if New York bakers agreed to work 14 hours a day, seven days a week, the state had no authority to take that “right” away from them.
Thus, a half-century after its ratification, the Supreme Court transformed an amendment enacted to eradicate the vestiges of America’s most abhorrent labor policy into a device for employers who wished to use unregulated capitalism to exploit their workers. In the face of this transformation, Justice Louis Brandeis — a justice often celebrated by liberals — even called for the Fourteenth Amendment to be repealed, a call that conservatives sympathetic to Lochner have used to attack his legacy. Yet, in the wake of cases like Plessy and Lochner, it was not at all clear that the Fourteenth Amendment was worth saving. Thanks to the Supreme Court, actual decisions applying this amendment bore little resemblance to its noble purposes.
The Redemption of a Klansman
Ironically, the modern doctrine enforcing the Fourteenth Amendment’s prohibition on race discrimination was first articulated in one of the most odious Supreme Court decisions in American history. “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” Justice Hugo Black wrote in Korematsu v. United States. “That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.”
Black then went on to explain why the Court believed that detention camps for Japanese Americans cleared this high bar.
A former United States senator from Alabama, Black was one of the most complicated and fascinating individuals ever to sit on the Supreme Court. Appointed by President Franklin Delano Roosevelt just months after the Court abandoned Lochner, Black understood that he was made a justice to ensure that Lochner stayed dead. “That’s why I came on the Court,” Black said near the end of his career on the bench. “I was against using due process to force the views of judges on the country. I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.”
Black, however, was also a former Ku Klux Klansman. As a lawyer in private practice, Black once defended another Klansman who murdered the Catholic priest that married his daughter to a man of Puerto Rican descent by quoting the official Klan prayer to the jury (the jury voted to acquit). After Black joined the Klan, the Grand Dragon of Alabama served as Black’s de facto campaign manager in his first Senate race. Black won by the largest margins in areas with the highest Klan membership. Shortly after he was confirmed to the Court, he was forced to repudiate his Klan ties, and he did so by announcing that “many members of the colored race” are his friends.
Despite his decision in Korematsu and his previous membership in the Klan, Justice Black became one of the Court’s strongest advocates for desegregation when Brown v. Board of Education reached the justices.
Black, however, arguably did more than any other justice to restore Bingham’s vision of the Fourteenth Amendment. Despite his decision in Korematsu and his previous membership in the Klan, Justice Black became one of the Court’s strongest advocates for desegregation when Brown v. Board of Education reached the justices.
True to his Rooseveltian roots as an agent of Lochner’s continued destruction, Black presented himself as a rigid textualist. On the one hand, this led him to repudiate many of his fellow justices’ attempts to protect rights that are not specifically enumerated in the Constitution. In the Court’s famous pro-birth control decision in Griswold v. Connecticut, for example, Black dissented, warning that judges must always keep a firm wall of separation between their policy preferences and their understanding of the Constitution. The contraception ban in that case, Black wrote, “is every bit as offensive to me as it is to my Brethren of the majority.” He continued that “[t]here is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court’s opinion or by those of my concurring Brethren to which I cannot subscribe — except their conclusion that the evil qualities they see in the law make it unconstitutional.”
He ended his opinion by comparing the Court’s decision to Lochner. Decisions based on “subjective considerations of ‘natural justice,’” Black wrote, are “no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.”
There was another side, however, to Black’s textualism. If judges must be cautious about enforcing rights not mentioned in the Constitution’s text, then they also must not read the Constitution to ignore the rights specifically enumerated in the document. “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree,” according to Black, “is to frustrate the great design of a written Constitution.” Black’s grand project during his more than three decades on the Court was to restore something very close to Bingham’s original plans for the Bill of Rights. Though previous decisions had held that a few rights protected by the first eight amendments were “incorporated” against the states — meaning that state governments were required to honor them — the Court rapidly accelerated this process at Black’s urging. By the time Black left the Court in 1971, this project was largely, if not entirely, complete.
And the vehicle Black used to bring states into compliance with the Bill of Rights was the Fourteenth Amendment. He believed that the obligations this amendment placed on the states included an obligation to obey the commands of the first eight amendments of the Constitution.
The former Klansman and author of one of the Court’s most egregious errors on the subject of race, in other words, supervised a kind of second reconstruction, restoring an amendment that had been twisted into something quite unlike what it was intended to be.
Marriage Equality and Beyond
Many of the battles won by Justice Black and his allies are likely to stay won. There is no significant faction within the legal profession that wants to roll back Brown v. Board of Education in its entirety. Similarly, there is now a widespread consensus around the idea that, at least, most of the Bill of Rights should apply with equal force against the states and the federal government. Indeed, in the Court’s most recent major incorporation case, its conservative bloc joined together to apply their newly expanded version of the Second Amendment to state gun laws.
Yet, while state-mandated segregation is almost certainly dead, a battle wages on over Brown’s broader legacy. Chief Justice John Roberts cited Brown, for example, in a 2007 decision striking down two school districts’ plans to foster racial integration. Roberts objected to the fact that the racial integration plans required the districts to take account of race, and he concluded his opinion on behalf of a plurality of the Court with a flourish: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Similarly, the battle over when and if the Supreme Court can recognize unenumerated rights continues to burn as hotly as it did when Black dissented in Griswold. An abortion case the Court is likely to hear in its next term could render Roe v. Wade a virtual nullity. Roberts compared the logic of Justice Kennedy’s marriage equality decision, which relied on a “fundamental right” to marry Kennedy found implicit in the Fourteenth Amendment, to Lochner.
Two other battles may to grow in importance in the near future. One concerns the nature of equality under the Fourteenth Amendment. Though the amendment was written as a response to slavery, its language sweeps broadly. No state may “deny to any person within its jurisdiction the equal protection of the laws,” a prohibition that, on its face, sweeps broadly to prohibit many forms of discrimination. Applying this broad language, the Supreme Court has held that discrimination that bears “no relation to ability to perform or contribute to society” should be treated by particular skepticism by judges.
Although Obergefell does not hold that discrimination on the basis of sexual orientation fits this bill, it strongly implies that such a decision is coming — at least as long as the faction on the Court that supports gay rights does not lose its majority.
Justice Antonin Scalia . . . has said in the past that he does not believe that the Constitution prevents discrimination against women
Meanwhile, some of the Court’s most conservative members have indicated that they would not only roll back the Court’s decisions protecting against anti-gay discrimination, but they may also go even further. Justice Antonin Scalia, for example, has said in the past that he does not believe that the Constitution prevents discrimination against women, although he may have backed away from this view in 2011.
Finally, it’s worth noting that, although there is nowhere near a majority on the current Supreme Court for reinstituting Lochner, there is an increasingly influential faction within the conservative movement — a faction whose most vocal members includes several sitting judges and at least one sitting senator — that strives to do so. Should this faction gain the ear of the next president, American law could change very rapidly.
Three members of the Supreme Court are in their late 70s, and Justice Ruth Bader Ginsburg is over 80. That means that the next president could replace all of them even if that president only serves for one term. If that happens, few things in American law will remain settled if that president’s appointees wish to make radical changes to the law.