All Commentary
Tuesday, September 17, 2013

The Fourteenth Amendment Makes America Freer

By Clark Neily

In 1880, San Francisco tried to run Chinese people out of the laundry business by requiring a special permit to operate wooden laundries. Every Chinese person who applied for a permit was denied, while every white person—with a single exception—was approved. The California Supreme Court found no problem with this.

Meanwhile, it was illegal for women to practice law in Illinois and a crime to marry outside one’s own race in Alabama and elsewhere. The intellectual foundations were also being laid for the American eugenics movement, which would eventually see the forcible sterilization of more than 60,000 citizens deemed “socially inadequate” by government officials.

The U.S. Supreme Court has since rejected every one of those practices under a single provision of the U.S. Constitution: the Fourteenth Amendment.

Did the Fourteenth Amendment make America freer? If freedom is defined as the ability to live one’s life without unreasonable government interference, then the answer is emphatically yes.

To understand how the Fourteenth Amendment protects liberty, it is necessary to know what prompted its adoption in 1868.

In the aftermath of the Civil War, many Southern states tried to keep emancipated blacks, called “freedmen,” in a state of constructive servitude. This involved a ruthless campaign of oppression against freedmen and their white supporters, including censorship of speech supporting racial equality; severe limits on the ability to travel, work, and own property; and stripping them of the right to own guns for self-defense. In one Kentucky town, for example, it was reported that the marshal took “all arms from returned colored soldiers” and was “very prompt in shooting the blacks” whenever the opportunity arose.

This unrelenting assault on liberty was facilitated by the fact that the only place its victims could seek redress was in local courts whose judges showed little inclination to enforce state constitutional rights on behalf of out-groups like the freedmen, white Unionists, immigrants, and women.

Unlike today, those who were silenced, dispossessed, and stripped of the ability even to defend themselves from mob violence could not invoke the protections of the Bill of Rights, nor could they turn to the federal courts as we routinely do now. The reason for that was an 1833 decision called Barron v. Baltimore in which the Supreme Court held that the freedoms protected by the Bill of Rights applied only against the federal government and not the states.

The Fourteenth Amendment was designed to change that by establishing two basic points: (1) everyone born or naturalized in the United States is an American citizen, and (2) states may not enforce laws that interfere with the “privileges or immunities” (a term then synonymous with “rights”) of American citizens, nor may states deprive any person of due process or equal protection of the laws. And while the Supreme Court initially botched its interpretation of the Fourteenth Amendment in an 1873 decision aptly named The Slaughterhouse Cases, it gradually embraced the notion that the Fourteenth Amendment should be applied in a manner more consistent with its text, purpose, and history. This included setting aside Barron v. Baltimore and “incorporating” most of the two dozen or so discrete provisions of the Bill of Rights against the states. (A more detailed discussion of this history, including a short documentary video prepared by my colleagues and me at the Institute for Justice, is available here.)

Thus, the primary effect of the Fourteenth Amendment was to add a new textual resource for those seeking to vindicate their rights against state and local officials, along with a new venue—federal courts—in which to do so.  The result has been more robust judicial protection of everything from speech and racial equality to the rights of the accused in criminal prosecutions.

Has the Fourteenth Amendment lived up to its full promise? Absolutely not. Besides treating the Privileges or Immunities Clause as a mere “inkblot,” a mindset of reflexive deference to other branches has produced an ethic of judicial abdication that frequently turns a blind eye to illegitimate government action, as the Supreme Court did when it authorized the use of eminent domain for private development in the notorious Kelo decision of 2005.

But the question is not whether the Fourteenth Amendment has attained its full promise; the question is whether the Fourteenth Amendment makes America freer. By adding to the rights set forth in various state constitutions an additional source of protection for liberty, and by empowering an additional set of tribunals (the federal courts) to enforce those rights, the net effect of the Fourteenth Amendment has plainly been to make America freer.

Thus, when Klansmen and nativists in Oregon sought to outlaw private schools and force Catholic children to attend Protestant public schools in 1922, it was the Fourteenth Amendment that prohibited it. When police arrested Mildred and Richard Loving for violating Virginia’s anti-miscegenation law, it was the Fourteenth Amendment that kept them out of jail and forced the state to recognize the validity of their marriage. And when Alabama tried to hound the NAACP out of the state during the civil rights era, it was the Fourteenth Amendment and the U.S. Supreme Court that said no.

History makes clear that those results would not have occurred without the Fourteenth Amendment and the federal judiciary’s commitment to enforcing it. Would state courts suddenly have become vastly more protective of liberty had the Fourteenth Amendment not been ratified? That is an extraordinary claim that requires extraordinary evidence. I have never seen any. Has Section Five of the Fourteenth Amendment, which authorizes Congress to enforce its provisions “by appropriate legislation,” so empowered the federal government as to offset the manifold protections of liberty achieved by Section One? That too would be an extraordinary claim requiring extraordinary proof. Again, I am not aware of any.

Did the Fourteenth Amendment make America freer? It certainly did for Mildred and Richard Loving. Oh, and that anti-Chinese laundry ordinance upheld by the California Supreme Court? The U.S. Supreme Court struck it down under the Fourteenth Amendment

Clark Neily is a senior attorney at the Institute for Justice and Director of the Institute’s Center for Judicial Engagement. He is the author of the forthcoming book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.