Episode 102: The Fourteenth Amendment

Today, we continue our series on the Reconstruction amendments, the series of Constitutional amendments passed in the aftermath of the Civil War. Congress outlawed slavery with the Thirteenth Amendment, but freed slaves still were not legally citizens, were subject to discriminatory laws, and were not allowed to go to court.

The Fourteenth Amendment was intended to change all that, with some of the strongest civil-rights language in the Constitution. If you've heard of due process or equal protection under the law, you've heard of the Fourteenth. We talk to Ted Shaw, professor and director of the Center for Civil Rights at the University of North Carolina School of Law at Chapel Hill, and the former President of the NAACP Legal Defense Fund. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how democracy works. We got this question from one of the co-hosts of an excellent podcast about the Civil War called Uncivil.

Jack Hitt: [00:00:36] Hey Civics 101. This is Jack hit from the podcast just down the road, Uncivil. On our show we ransack the history of the Civil War and challenge the stories you grew up on. We've been listening to your show and we've got a request: right after the Civil War there was that whole bundle of constitutional amendments that Congress passed. We all know that were meant to fix the situation but did they actually do anything at the time? What about now? Are they working at all today

Virginia Prescott: [00:01:05] Jack is right on time for part two of our continuing series on the Reconstruction Amendments those three amendments to the constitution passed in the wake of the civil war. So after the 13th Amendment formally outlawed slavery came the 14th intended to grant citizenship and equal rights to people of African descent and laying out sweeping protections for all Americans at the federal and state level. Theodore Shaw is a civil rights lawyer at the University of North Carolina law school and he is here to walk us through the 14th Amendment which he says begins with the Dred Scott case.

Ted Shaw: [00:01:41] So in 1857 the Supreme Court decided Dred Scott versus Sanford and this was a case in which a slave was brought out of Missouri where he lived and toiled by his master who took him up to the Northwest Territory what's now the Minneapolis St. Paul area. And he then filed suit after that on behalf of himself and two children he and his wife had, and said that he was no longer bound by slavery because he had been taken away from a slave state and therefore freedom had attached to him.

[00:02:24] That case went to the Supreme Court and in 1857 the chief justice of the Supreme Court Roger Taney wrote an opinion which said that in fact he was not freed by reason of being taken out of a slave state. But not only that the decision went further and said that he could not sue because he wasn't a citizen of the United States. So as a matter of procedure he couldn't bring that suit in a federal court but also not only slaves but even free black people could not be citizens of the United States. So that's one of the cases we think of as the anti canon, the worst of the Supreme Court cases and even a civil war and the adoption of the 13th Amendment did not overturn that case. That's why a principal reason why the Constitution's 14th amendment was necessary in the aftermath of the civil war.

Virginia Prescott: [00:03:25] Well let's just acknowledge we're not going to be able to cover all of the intents and implications of the 14th Amendment in one sitting with you today. But there are two important and I'd say familiar rights that come from the 14th Amendment. This is due process and equal protection under the law. So let's start with due process. What does that say.

Ted Shaw: [00:03:45] Well due process is the principle which says that individuals can't be deprived of property of life and of their basic rights, liberty, without due process of law. In other words they have to have a notice and an opportunity be heard an opportunity to go to court and protect those rights. And so that's one of our basic bedrock principles that you cannot deprive people of life liberty or property without due process of law.

Virginia Prescott: [00:04:26] And how about equal protection clause. What does this actually mean.

Ted Shaw: [00:04:30] Well the Equal Protection Clause went further than anything that had been adopted in the Constitution before to say that no individual not only black people but no individual no person should be deprived of the equal protection of the laws. The idea being that people should not be discriminated against on the basis of religion race color or even gender although at that time the 14th amendment wasn't seen to protect all of those things initially it protected against racial discrimination but also left open other forms of discrimination for protection.

Virginia Prescott: [00:05:14] Citizenship to all is another clause to all persons born or naturalized in the U.S. are subject to the jurisdiction thereof. Privileges and immunities [clause], this is about no state shall make and enforce any law which abridges the privileges and immunities of citizens of the United States. So let me just clarify federal law now applied even within the states when it came to due process and equal protection under the law. How did the Southern states respond to the provisions of the 14th Amendment especially the privileges and immunities clause meaning that they were all subject to this federal law

Ted Shaw: [00:05:54] There were still attempts to keep African-Americans in a condition that was as close to slavery as possible. And that battle continued all the way through the Reconstruction era until the end of the 19th century. And then of course the era of Jim Crow segregation until the 20th century and we didn't begin to really resolve these questions until the civil rights era the modern civil rights era of the 1950s and 60s.

[00:06:27] And so the shadow of slavery continued to exist with respect to the rights of African-Americans right on up through the end of the 19th century and you finally got Plessy vs. Ferguson in which separate but equal was sanctioned as constitutional. And that didn't turn around until the Supreme Court's 1954 decision. And Brown vs. Board of Education. So the struggle after the Civil War in many ways was a continuation of a struggle against slavery in another form not technically slavery but certainly inequality that was being foisted upon African-Americans and other people of color.

Virginia Prescott: [00:07:23] So what are the some of the examples or practices that were struck down under the Equal Protection Clause?

Ted Shaw: [00:07:30] The practices that were being challenged were practices such as segregation in public accommodations. The same thing that happened in the 1960s. The question of whether or not theaters and trolley cars and trains and steam boats could be segregated. There were in effect arguments being made that black people simply didn't have those rights in spite of the 14th Amendment. They didn't have to be treated exactly the same as white people did. They didn't have access to all of the places that white people lived and carried out their businesses and socialize et cetera. There were there was a question about whether or not the right to vote was a civil right or a political right.

[00:08:24] The 15th Amendment was supposed to resolve that. And yet the right to vote was denied to many individuals and so these struggles continued all the way through the second half of the 19th century. And you know some years ago I was I gave a lift from an airport the Detroit airport to Ann Arbor to two young man from Wales and we got into a discussion in which I asked him how he liked the United States and whether he was struck by anything and he said you know I said the thing that struck me more than anything else is how much race still matters. He said it's kind of like a civil war that you hold under your breath and I never forgot that.

[00:09:13] And I think that in some ways one way or another we've been holding a civil war under our breath ever since the end of the Civil War of the eighteen 60s. Some of it is not under our breath, some of it is right up front.

Virginia Prescott: [00:09:31] Let's bring us to the 20th century and 21st century. You served as president of the NAACP Legal Defense Fund. You've litigated civil rights cases on everything: Education voting rights police misconduct. How did the 14th Amendment figure into those kind of cases and in more contemporary cases after the Civil Rights Movement?

Ted Shaw: [00:09:51] The 14th Amendment was the central driving constitutional provision which we and others use to fight against racial discrimination to fight against discrimination on the basis of national origin or other markers of who and what we are as individuals. But for the Legal Defense Fund the 14th Amendment was the most important constitutional provision.

[00:10:26] And there's a an enforcement clause of the 14th Amendment Section 5 which was the basis for Congress passing legislation civil rights laws that prohibit discrimination. So if we were filings school desegregation cases for example we would we would say in our complaint that the school system the school board treated black students unequally in violation of the 14th Amendment's equal protection clause.

[00:11:02] So the 14th Amendment is the crown jewel in many ways of the Constitution when it comes to notions of fairness and justice and equality. And for those of us who worked as lawyers on behalf of people who were claiming their constitutional right to be treated fairly, the 14th Amendment is sacred and as it should be for all Americans.

Virginia Prescott: [00:11:30] Why is the 14th Amendment so often called upon pertaining to very sexual or intimate personal matters. There is the right to privacy in the context of a ban on contraceptives, interracial couples to marry, right to abortion, the right to engage in intimate sexual contact of same sex couples. Why Fourteenth Amendment cases?

Ted Shaw: [00:11:52] When we think about the right to privacy for the most part we're thinking about the First Amendment. We're not really thinking about the 14th Amendment but you know the 14th Amendment is being used when it comes to sexuality because people are saying people who are LGBT that they are being discriminated against treated unfairly by individuals or for that matter by the state. We're talking about the 14th Amendment because the 14th Amendment applies to governmental action not to individuals.

[00:12:29] Now that claim would have never been brought in the 19th century and for that matter through much of the 20th century. But we have as a society grown and come to different understandings although that's still a work in process and there are a lot of people who say that the 14th Amendment shouldn't recognize those kinds of rights but we are coming to a different and broader understanding of what the 14th Amendment means to people on the basis of who and what they are. And we're asking the question whether they should be treated differently.

[00:13:11] And frankly I have to tell you there are a lot of black folks who in the first instance when it came to extending antidiscrimination provisions to LGBT people said no wait a minute the 14th Amendment is about our issues, our rights, about racial discrimination and our history of that and felt like it should not be extended. Well you know I think we find people even in the African-American community who are conservative when it comes to the rights of LGBT people and same sex marriage. But there's also a recognition that the principles that are applied to how people should be treated on the basis of who and what they are go beyond simply the rights of African-Americans the right and beyond race.

[00:14:11] The 14th amendment although it was called into existence to address the discrimination that was visited upon black people who have been held in slavery, the 14th Amendment is broader than that. As important as all those issues are and continue to be and I fight for them my whole life has been. I also acknowledge and recognize that the 14th Amendment is larger than just those issues.

Virginia Prescott: [00:14:39] Let's get to Jack Hitt's question. Is it working now?

Ted Shaw: [00:14:45] The answer to the question of whether the 14th Amendment is working now is not an easy one. It's a complicated one because some people think that the 14th Amendment after it was enacted or for that matter of the 15th Amendment that all of a sudden everything is cured. You know people's rights are guaranteed and therefore they are protected. And that's never true.

[00:15:12] There are people who unfortunately and sadly and tragically who tried to to treat people in ways that they wouldn't want to be treated in ways that are fundamentally unfair because of who and what they are. That's still true today. You know the battles we're having about you know sexual orientation and identity in that way that's a 14th Amendment fight these days as well as the the issues that are being raised and the Black Lives Matter movement, women -- their rights to be treated fairly equal pay etc. and in many respects we all look to the 14th Amendment and each generation even those who are in grade school now they are going to have to decide whether or not the 14th amendment will be enforced to protect the rights of their generation their peers.

[00:16:18] I mean the law is there, the Constitution is there but you know it it has to be enforced in order for it to mean something. So is it working today? It's working is people make it work. The Constitution standing by itself doesn't protect anyone unless we guarantee that it does, we make it protect people, we go to court and we fight for our rights and the rights of others.

[00:16:49] Ted thank you so very much for your time.

[00:16:52] Thank you, it's an honor to be with you. And I say to all of the young people who are hearing this: This is your constitution.


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