January 13, 2022
After writing the U.S. Supreme Court’s infamous decision in Dred Scott v. Sanford, Chief Justice Roger Taney predicted the decision would “stand the test of time and the sober judgment of the country.” The bitter irony of these words is that the decision unjustly kept a free man in slavery, eventually destroyed Taney’s reputation, and arguably contributed to the conditions that led to the Civil War.
The court’s startling decision included the outlandish conclusions that (1) individuals who had been enslaved and their descendants could not be citizens and that (2) Congress could not prevent the expansion of slavery into new U.S. territories.
As the Civil War drew to a close, the U.S. Congress returned to the issues the court had botched and began the process of addressing the underlying injustices that had given rise to the war. In the post-war years, Congress would propose three amendments to the U.S. Constitution.
The first, the 13th Amendment, prohibited slavery. The third, the 15th Amendment, provided that the right to vote could not be infringed because of the race of the voter or because a person or his ancestors had been enslaved. (The vote for women was yet to come.)
The 14th Amendment, ratified in 1868, would have dramatic implications for the questions addressed in Dred Scott about citizenship and the power of the states, and eventually for the role of the Supreme Court.
The first portion of the amendment repudiated Dred Scott’s holding on citizenship: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The second portion went beyond the prohibition of slavery to ensure that all citizens of states would have their fundamental rights protected: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
This provision marked a significant shift in the constitutional role of the states. Prior to the war, the common understanding of the Constitution was that it limited the power of the federal government to infringe individual rights but that these rights were unenforceable against the states.
The 14th Amendment now made clear that like the federal government, the states could not deprive citizens of rights. The context makes clear that Congress intended to ensure the states would not mistreat those who had been freed from slavery, but, of course, all citizens should also benefit.
The next portion of the amendment also provided a critical protection that was unlike any prior constitutional provision: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” States that recognized slavery had typically adopted two sets of laws, one with general application and another, called slave codes, for Black Americans. This portion of the amendment would preclude this differential treatment.
In another historical irony, though, a pair of Supreme Court cases would limit the effectiveness of the new protections in these three amendments.
In 1873, the court rejected a claim by butchers operating in New Orleans who challenged a city-granted monopoly to a particular slaughterhouse that resulted in closure of other businesses. The butchers argued the state violated their rights under the 14th Amendment. The court interpreted the amendment’s provisions extremely narrowly:
the Fourteenth Amendment only banned the states from depriving blacks of equal rights; it did not guarantee that all citizens, regardless of race, should receive equal economic privileges by the state. Any rights guaranteed by the Privileges or Immunities Clause were limited to areas controlled by the federal government, such as access to ports and waterways, the right to run for federal office, and certain rights affecting safety on the seas.
The other case was decided in 1896. There, the court heard a test case involving a Louisiana law requiring separate train cars for Black and white passengers. Homer Plessy rode in a “whites only” train car with the cooperation of the train company, which also objected to the law.
The court upheld the law against Plessy’s 14th Amendment challenge, endorsing the “separate but equal” theory – that separate treatment based on race was not inherently unconstitutional.
In these decisions, much of the important intent of the Civil War amendments was prevented from taking effect. As a result, African American citizens suffered generations of inequitable treatment and oppression under a system of legalized racial segregation. However, the courts would also later begin to correct their mistakes and play an important role in reviving the protections from state discrimination.
This case should establish whether the state can require creative professionals and businesses to send messages even if it does not express antipathy to the professional or business beliefs.
It’s easy to follow the path of viewing someone who disagrees with you as short on intelligence or morality. It takes depth of character to take the road less traveled.
There needs to be a way to correct decisions at odds with the underlying laws being applied. The court can and does have options to prevent (or correct) this type of result.