Fourteenth Amendment

  • February 2, 2012
    Richard Thompson Ford
    Rights Gone Wrong
    How Law Corrupts the Struggle for Equality

    By Richard Thompson Ford, George E. Osborne Professor of Law at Stanford University

    Since the 1960s, the ideas developed during the civil rights movement have dominated American thinking about social justice. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: we aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.

    When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, in the context of race, they stem from segregation — a legacy of past racism but not by and large the result of ongoing discrimination — and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. In my new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, I show that civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.

    Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard over 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.

  • November 22, 2011

    by Nicole Flatow

    ”I’m here as the official representative of the dark side,” Rutgers University law professor Earl Maltz said during a recent event commemorating the landmark gender equality Supreme Court decision Reed v. Reed.

    Maltz does not think Reed was righty decided, because, per his “originalist” approach, the drafters of the Fourteenth Amendment did not contemplate that the equal protection provision would prohibit sex discrimination.

    But U.S. Supreme Court Justice Ruth Bader Ginsburg, the featured speaker at the event, had an answer for Maltz’s brand of originalism, highlighted by ABC News.

  • September 28, 2011
    Guest Post

    By Mark Posner, Senior Counsel, Lawyers’ Committee for Civil Rights Under Law

    Recently, Judge John Bates of the U.S. District Court in Washington, DC, ruled that a core provision of the Voting Rights Act of 1965 – the Section 5 “preclearance” requirement – remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in our nation’s ongoing efforts to “banish the blight of racial discrimination in voting.”

    This challenge to the constitutionality of Section 5 was brought by Shelby County, Ala., a largely white suburb of Birmingham. In rejecting the County’s arguments, Judge Bates agreed with an earlier unanimous decision, by a three-judge panel of the D.C. District Court (Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221 (D.D.C. 2008)), which likewise upheld the constitutionality of Section 5, in a case brought by a local Texas utility district. That earlier decision, however, was vacated in 2009 when the Supreme Court decided that the utility district could pursue a statutory “bailout” from Section 5 coverage. Unlike the Texas utility district, Shelby County freely admitted that it has a recent history of voting discrimination that disqualified it from “bailing out.”

    Section 5 requires states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal preclearance before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect.

    Congress enacted the preclearance procedure in 1965 after it found that certain jurisdictions with a history of voting discrimination often were devising new discriminatory voting practices when old ones were struck down by the federal courts. Thereafter, Congress reauthorized Section 5 four times, in 1970, 1975, 1982, and, most recently, in 2006, each time finding that voting discrimination in the covered jurisdictions had remained high. Section 5 has prevented hundreds of discriminatory voting changes from going into effect, and has deterred countless others from ever being enacted.

    In the Shelby County case, Judge Bates confronted the fundamental question of what legal standard should be used to determine whether, as Shelby County claimed, Congress had exceeded its authority in reauthorizing Section 5 for 25 years in 2006. Shelby County invoked recent Supreme Court holdings that, at least as to certain Fourteenth Amendment legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  In so doing, the County proposed a standard that would effectively preclude Congress from renewing effective antidiscrimination laws. The United States and defendant-intervenors (represented by civil rights organizations and law firms, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, and the NAACP Legal Defense Fund) argued that, in its prior rulings in 1966 and 1980 upholding Section 5, the Supreme Court held that Congress may “use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” 

  • September 16, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde François, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.

    Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.  

    The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.

    In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional. 

  • September 15, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. By Doug Kendall, President, and Judith Schaeffer, Vice President, Constitutional Accountability Center  

    As ACS members know, our Constitution is under attack from tea partiers and other self-professed “constitutional conservatives” who have claimed the document as their own and distorted it to support their ideological agenda. Over the past two years, they have made increasingly extreme, and in some cases absurd, claims about our Nation’s charter. They started with calls to repeal a number of Amendments, including the part of the 14th Amendment that protects citizenship at birth. They progressed to claims that Social Security, Medicare, and portions of the Affordable Care Act are unconstitutional. It’s gotten to the point where it seems that many in the tea party believe the entire 20th Century was unconstitutional. Talk about a bridge to the 21st Century!  The tea party movement seems to want to build a bridge back to the colonial era and the Articles of Confederation.

    There is no greater threat to progressive values than this effort to make progress itself unconstitutional. This week, Constitutional Accountability Center and our partner organizations, including the Center for American Progress and People For the American Way Foundation, launched a coordinated effort  -- Constitutional Progressives -- to take our Constitution back and rebut the constitutional fairy tales being peddled by tea party leaders. Our greatest assets in doing so are the text and history of the Constitution itself.

    Constitutional Progressives celebratethe Framers for creating the best and most durable form of government in world history, but believe the Constitution today is better than the document ratified in 1789.  Generations of Americans have made our country and our Constitution “more perfect” by ratifying Amendments that have eliminated slavery, protected liberty and equality, expanded the powers of the federal government, and secured voting rights for every adult citizen in America.   

    This story of constitutional improvement should inspire all Americans, and we’re asking people across the political spectrum to join Constitutional Progressives by signing the “Whole Constitution Pledge” --  a pledge to support the entire Constitution, including the Amendments adopted over the last 220 years. The Pledge can be signed on line, here. More than 15,000 people across the country have already signed. We’ve made a similar call to all Members of Congress, urging them on Constitution Day to reaffirm their constitutional oath of office -- their pledge to support the whole Constitution, not just the parts they like or find ideologically convenient.