Fourteenth Amendment

  • September 17, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.

    Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

    In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

    Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

    For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

    Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth. 

  • April 24, 2014
    Guest Post

    by Liliana M. Garces, William C. Kidder and Gary Orfield

    Garces is an Assistant Professor of the Higher Education Program and Research Associate of the Center for Study of Higher Education at Penn State College of Education. Kidder is the Assistant Executive Vice Chancellor at UC Riverside. Orfield is the Professor of Education, Law, Political Science and Urban Planning and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles at UCLA.

    Chief Justice Hughes famously said that a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Dred Scott, the Civil Rights Cases, Plessy, KorematsuIn these and other landmark race-related cases, dissenting Justices spoke eloquently to “the intelligence of a future day” in laying bare the errors in the holding and reasoning of the Court’s majority opinions.

    Justice Sotomayor’s dissenting opinion in Schuette, joined by Justice Ginsburg, is both brooding and compelling in the way it speaks to an intelligence of a future day, a day when, “as members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

    We deeply regret the decision by the Supreme Court upholding Michigan’s ban on race-sensitive admissions as constitutional and overturning the Sixth Circuit’s en banc ruling that the referendum violated the federal constitutional guarantee of equal protection. On the heels of recent voting rights and campaign finance decisions—decisions that not only create enormous barriers but further weaken minority political power and increases the power of money—the Schuette ruling exemplifies how legal decisions can ignore the stark realities of our nation and the deep racial inequalities that continue to exist in America. 

  • October 8, 2012
    Guest Post

    By Mark Ladov, is counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.


    The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10.  Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century.  But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).

    UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential.  As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.  

    It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause.  That is not just the opinion of over 70 amici briefs siding with the university.  It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger

    In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy.  Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978).  She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.  

    UT has followed these instructions to the letter.  The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program.  As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.

  • June 13, 2012
    Guest Post

    By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center (CAC). This analysis is cross-posted at the Text & History Blog.


    Twenty years ago this month, a bitterly divided Supreme Court handed down Planned Parenthood v. Casey, one of the most important opinions delivered by the Court on the meaning of the Constitution’s protection of liberty and equality for all Americans.  In a landmark joint opinion, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a narrow five-Justice majority reaffirmed what they called the “essential holding of Roe,” beating back a twenty-year assault on the Supreme Court’s decision in Roe v. Wade and the notion that the Constitution protects substantive fundamental rights not enumerated elsewhere in the Constitution.  In the process, the Justices rooted protection of a woman’s right to reproductive choice, not in a generalized right of privacy as Roe had, but in a woman’s right to bodily integrity, to personal liberty, and to equal citizenship.  (For more discussion, see CAC’s Crossroads Chapter on Reproductive Freedom).  As a senior in college at the time, I had the incredibly good fortune of working on the legal team representing Planned Parenthood at the Supreme Court – alongside brilliant and courageous attorneys Kitty Kolbert and Linda Wharton – and to this day my work on Casey is still one of the proudest moments of my career in the law. 

    Casey’s understanding of constitutional protection for personal liberty and equality drew on the Court’s precedents going back 70 years and the doctrine of stare decisis.  The joint opinion forcefully demonstrated that keeping faith with the Court’s precedents required reaffirming constitutional protection for a woman’s right to reproductive choice, while the dissenters argued that these  precedents had to be jettisoned.  Two decades later, thanks to the work of Jack Balkin, Reva Siegel, Dawn Johnsen and others, there is more basic foundation of support for Casey’s understanding of fundamental constitutional principles: the Constitution’s text and history.  Contrary to conventional wisdom, both Casey’s analysis of the protection of substantive fundamental rights and of gender equality has deep roots in our Constitution’s text and history.  Supporters of Roe and Casey should embrace these sources – just as much as precedent – in defending a woman’s right to reproductive freedom against attacks by conservatives.   

  • June 12, 2012

    by Jeremy Leaming

    It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.

    The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.

    The case eventually reached the Supreme Court.

    Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.

    “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

    “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”