The 14th amdt turns 150 years old this year on July 9. It is the closest we’ve come to writing into the constitution what we claimed in the Declaration of Independence. If you’re forced to pick one, choose the 14th - above the 1st, the 2nd, or the FIF. Sorry Dave Chappelle.
2/x I’m using this as a thread to post one tweet a day about the fourteenth amendment until its 150th anniversary on July 9th. John Bingham, republican of Ohio, is credited as the principal author of Section 1 of the amendment, which contains its substantive rights provisions.
3/x I sort of lied when I said I would post one tweet per day until July 9th to celebrate the 150th anniversary of the 14th. Some ideas don’t fit in one tweet. So let’s say one thread per day - short ones:
4/x By the end of today’s thread you’ll want to go hug a black person - preferably one you already know - preferably after asking them first.
5/x So Congress adopts the text of the 14th in 1866. Most Northern states quickly ratify it but not Delaware. Delaware is always sneaky about it but it was a slave state and even thought about seceding until it saw what Lincoln did to Maryland and so Delaware was:
6/x Northern support is not enough because without the South you can’t get to the 28 states needed for ratification and with the exception of Tennessee, when presented with the amendment, Southern states respond:
7/x The war may be over but this is pre-15th amdt. and the electorate in the South is still exclusively white males. So Senator Sumner comes up with a clever solution:
8/x He introduces legislation, stating the only way southern constitutional conventions to get readmitted to the union will be deemed valid is if the elections to select convention delegates are open to all races.
9/x Over Andrew Johnson’s veto, Congress passes the legislation. When the bill gets out of committee Senator Wilson of Massachusets says this:
10/x “Then and there, in that small room, in that caucus, was decided the greatest pending question of the North American continent.” To quote Biden: this is a big fucking deal
11/x Again, this is pre 15th amdt. Opening the door for blacks to vote in the South means that now Blacks control the fate of the amdt.
12/x In fact the final tally of all these conventions will show that the black vote counted for at least 25% of the vote. In some of these elections black turnout was ninety percent. Not a typo. 90%
13/x One example. North Carolina has 300,000 white voters; most don’t vote. It also has 400,000 eligible black voters; almost all vote. As a result 71 blacks get elected as delegates to the NC convention that ratifies the 14th amendment. (Some had been slaves a few years prior)
14/x In other words, the 14th gets ratified because enough Southern states agree to do it and the only way enough southern states get on board is because for the first time in US history a large enough number of black people get to vote.
15/x So if you like the 14th (and everyone should because it’s a core ingredient of every aspect of individual liberty and equality), go hug a black person ... but ask them first, though... or just say:
17/x Tomorrow: why some people still argue that the 14th amendment was never properly ratified and therefore should not be deemed part of the constitution.
18/x So today’s thread explores a strange set of arguments that some still make today that the 14th was never properly passed by Congress and ratified by the states and is, therefore, not a legitimate part of the constitution.
19/x To put the argument in context, it helps to know that the same folks who’ve never stoped fighting the civil war in the battlefield of historical memory have also not stoped fighting it in the battlefield of constitutional interpretation.
20/x One prominent southern historian described the 14th as one more way in which the North sought to “punish, plunder and reconstruct the South.”
21/x Here’s the first argument. It’s a little convoluted and you have to go back to the 13th amdt to make it. When the 13th amdt was submitted to the states it was ratified by 27 of the then 36 states according to the 3/4th requirement of Article V.
22/x Among the 27 states that ratified the 13th were 8 former confederate states. The one state that refused was Mississippi. Good ol Miss would not ratify the 13th until 1995 and waited until 2013 to send ratification papers to the federal government.
23/x Having approved the 13th, the confederate states, however, made clear they would not ratify the 14th. So when the 39th congress convened in 1865, republicans voted not to seat representatives from the former confederacy.
24/x Not nice perhaps but truth be told the class of senators and representatives the South sent to DC for the 39th Congress was a big FU to the North. Here’s a partial list in the next tweet:
25/x 9 former members of the confederate congress, 7 former confederate state officials, 4 confederate generals, 3 colonels, and even the former Vice President of the confederacy Alexander Stephens. In other words:
26/x Under normal circumstances, former confederate states were entitled to 61 representatives and 22 senators. With them excluded, the House passed the 14th by 120 to 32 with 32 abstentions, and the Senate by 33 to 11 with 5 abstentions.
27/x Had southern votes been counted, the 14th would have failed in the 39th Congress. It would not have reached the 2/3rd in the House and would have been tied in the Senate.
28/x So the first argument against the 14th is that because Southern representatives were excluded from the 39th Congress the text of the amendment that was sent out for ratification was never properly passed as Law.
29/x And, as the argument goes, if these states were good enough as states to ratify the 13th, then they were good enough as states for purposes of the 14th and should have had their members seated in the 39th Congress. But wait there’s more:
30/x In addition to sending out the 14th for ratification, Congress passed legislation (see yesterday’s thread) giving blacks the vote. The law also directed confederate states to adopt new constitutions and said they would not get back into the union until they ratified the 14th
31/x So the second argument goes like this: if you excluded southern representatives from the 39th Congress because you said they came from rebel territory, then there were no southern states in existence for you to send out the 14th for ratification. But there’s more:
32/x If those southern rebel territories could not be readmitted into the union until after they ratified the 14th, then the southern governments that ratified the 14th were not states when they ratified it because they didn’t become states until after ratification.
33/x So since they were not states when they ratified it and didn’t become states until after ratification, then ratification was invalid because it wasn’t done by states but by rebel territories.
34/x Tomorrow: why these arguments are craaaazzzyyyy
35/x This will be the last thread on the historical background of 14th amdt ratification and so I’ll try to keep it short. The twists and turns of that history are a lot more complex than can be laid out even in a long thread. But to summarize two points I’ve made so far:
36/x Ratification of the 14th ran through the South and it passed because for the first time southern blacks got the vote. Second, there were irregularities in the way the 14th was ratified and because of that some folks argue it’s invalid. So a few words as to why that’s crazy.
37/x First, back in 1939, in Coleman v Miller SCOTUS looked at the history of ratification and conceded it was unusual but said this: “the decision by the political departments of the government as to the validity of the 14th amdt has been accepted.” So:
38/x Second, as to the claim that the 14th should be thrown out because republicans were not seated in the 39th Congress, yes it was unusual but Congress gets to determine who is qualified. Not a great argument but remember who the south sent to DC barely 2 years after the war.
39/x Third, as to claim that congress shouldn’t have thrown out state governments and forced them to write new constitutions, remember that the war dead had barely been buried that these governments, with the exception of the 13th, refused to abandon their pre war constitutions.
40/x But above all, as I’ll talk about later, the 14th has become so deeply embedded in our concept of liberty and equality that if you were to do the thought experiment and remove it from the constitution, this is what would happen to virtually all individual rights
41/x Anyway, there’s far, far more to this history than can fit here, including that Ohio and New Jersey first ratified the 14th and then rescinded their ratification but then the feds said: too late no backsies!!!!
42/x So by all means read up on the history of the 14th; you won’t be disappointed. As for me, next time I’ll get to the substance of the amendment - the good stuff.
43/x So today is Monday June 4th and I’m continuing on my ridiculous quest to post one thread a day on the way to wishing happy 150th anniversary to the 14th amendment on July 9th. Absurd quest I know but think of me as don quixote charging at the windmills.
44/x My hope is twofold. First, since the internet is for ever, maybe someone someday will stumble on this and be motivated to learn more about the 14th. Second, maybe it will inspire folks to add 14A to their profile in the same way others seem to really be enamored of the 2A
45/x So leaving history behind, let’s talk about the broad structure and substance of the 14A. The 14A is structured in the same way as the 13A and the 15A. It contains a section with substantive rights and a section giving congress the power to enforce those rights.
46/x In the 13A, 14A, & 15A, the substantive rights provisions are in section 1. In the 13A & 15A, the enforcement provisions are in section 2. In the 14A, the enforcement provision is in section 5. (So yes the 14A has a section 2, 3, & 4 but they’re not relevant for now).
47/x Section 1 of the 14A contains four clauses that are (or potentially are) a source of rights: the citizenship clause, the privileges or immunities clause, the due process clause, and the equal protection clause. Come to think of it, I might as well put up its text now:
48/x In the days to come I’ll talk about each of the clauses one by one in terms of what they mean but for now it’s best to actually jump to section 5, the enforcement clause, because it is worded exactly the same as in the 13A and the 15A.
49/x This is important for a couple of reasons. The first is that the original 1787 constitution and bill of rights set up a structure where the feds had a limited set of enumerated powers and states had an unlimited set of unenumerated powers. So one way to oversimplify it is:
50/x the feds have no power unless the constitution specifically says they do; the states have all powers unless the constitution explicitly says they don’t. What this meant as a practical matter is this:
51/x Under 1787 constitution and bill of rights, assuming states were exercising powers reserved to them, Congress didn’t really have the right to tell the states what do do. Many reasons for that structure but one guess as to one big reason feds stayed out of state business:
52/x But after the war, for the first time, the enforcement sections of 13A, 14A, and 15A specifically gave congress the power to get into state business and tell them to quit f$cking around.
53/x The second reason the enforcement clauses are important follows from the first. There’s every reason to believe that the folks behind the 13th, 14th and 15th meant for them to be read together such as the whole would be greater than the sum of its parts- like we read 1A-10A
54/x We tend to say that the first 10 should be understood philosophically as a charter of negative liberties: a set of principles that together cohere into the fundamental idea that government should mind its damn business and leave you the hell alone
55/x Unfortunately, the mistake we’ve made over time is failing to read the 13, 14, and 15 as also standing together for a broad principle, namely that, in addition to minding its own business, the government has a positive obligation to ensure that its people have equal dignity.
56/x People gets scared of that idea but the radical republicans who drafted these amendments weren’t playing around. Folks like Charles Sumner and Thaddeus Stevens were downright gangster when it came to fixing the 1787 constitution.
57/x Not only did they think the 1787 constitution flawed but if they wanted to treat confederate states as conquered territory until they behaved. Sumner said that the entire point of the Reconstruction amendment was to get rid once and for all of the “oligarchy of skin.”
58/x The problem is, beginning during Reconstruction itself, SCOTUS refused to read these amendments through a broad equality lens in the way it reads the first 10 through a broad liberty lens. As a result much of the original intent of the 14th has been drained away.
59/x Nothing makes the point clearer than the way courts have drained any substantive meaning from the citizenship clause of section 1. That’s where we’ll pick up tomorrow. (I know this is taking long, but not as long as as a typical Obama answer at press conferences...I kid...)
60/x So today is June 6th and we’re continuing our marathon celebration of the 14A on the way to its 150th birthday in July 9th. The previous threads reviewed the historical background of the amendment and is structure. The next ones will take up the various clauses of section 1.
61/x One thing I should have made clear at the outset is that these threads are not intended for legal specialists on the 14A who’ve studied it deeply but are instead meant to be an introduction to those who wish to learn more.
62/x So the first substantive provision of the 14A is the citizenship clause. It reads “all persons born ...in the United States and subject to the jurisdiction thereof” are citizens of the United States. This is the birthright citizenship clause some people get upset about.
63/x Part of the reason for its inclusion in the 14A was the Dred Scott v Sanford decision, where the court held not only a slave could not sue for his freedom but in fact black people, because they were black, could never ever ever ever ever be citizens of the United States.
64/x This is the case that made the famous statement that blacks were “beings of an inferior order” “with no rights which the white man was bound to respect.”
65/x So birthright citizenship was meant to get rid of any caste system rooted in birth. And yet there remains two questions. First: does birthright citizenship mean that children of parents, are not citizens, or are not eligible for citizenship) themselves citizens?
66/x The simple answer is yes because SCOTUS said so in U.S. v Wong Kim Ark. but some still argue that is not the case because that wasn’t what 14A drafters intended. Here’s one of the more infamous example of that argument.
67/x In 2004, in Hamdi v Rumsfeld, Ed Meese, Attorney General under Reagan, submitted an amicus brief to SCOTUS. Hamdi was born in the US to non citizens and captured overseas by US forces in post 9/11 war. Question was could he be held as enemy combatant without due process, or
68/x was he owed due process as an American citizen even though captured on battlefield. Meese argued that Hamdi was not a citizen within citizenship clause because his parents were not. The court didn’t buy the argument but one big thing happened:
69/x Scalia wrote a dissent in which he described Hamdi as a “presumed citizen”, which many have read to mean that Scalia was signaling that he thought birthright citizenship was an open question.
70/x Lest you think this is some crazy tea leaf reading, the idea of denying citizenship to those born here whose parents are not citizens is big in some circles. Poke around and you’ll see in almost every congress there’s a bill untroduced to that effect. What’s more
71/x It’s clear the Trump administration would like to get rid of birthright citizenship. It may be that at some point a bill will make it through congress, triggering a legal fight up to the Supreme Court. And what happens there: who knows at this point?
72/x With that said, I believe the better argument is that the clause meant what it says and that those who drafted it were very concerned about getting rid of caste systems. To me the person who has done the best work on the clause is Professor Garrett Epps from U of Baltimore
73/x He’s on twitter but I won’t tag him without his consent. Check out a piece he wrote titled: The citizenship clause: A legislative History in the American University Law Review. Great stuff.
74/x The second question is a deeper one: was the citizenship clause intended to do more than just draw a line between citizens and non citizens, or was it meant to contain a certain minimum standard of care society owes its people by virtue of the fact that they’re citizens?
75/x Think if it this way, does being a citizen simply means you get to exercise those rights reserved for citizens in the constitution (for example vote)? Or does it mean that being a citizen itself contains rights and privileges not stated elsewhere in the document?
76/x Is citizenship another way of saying personhood? Does being a citizen mean a right to, say, healthcare. If the first 10 amendments say all the government owes you is to leave you alone, does the citizenship clause mean the government owes you more than to just leave you be?
77/x I don’t have absolute answers but what I do know is that it’s a measure of how much we’ve neglected and degraded the 14A that we don’t seriously ask these questions or we look at people who do as if they’re pointy headed crazy socialist academics
78/x I’ve babbled enough. Next up: the privileges or immunities clause, and the case of greedy butchers of New Orleans Louisiana and the story of the guy who voted for the majority in Dred Scott and resigned his seat on the Supreme Court to join the confederacy. It’s a doozy.
79/x Today is Wednesday June 6 and I’m continuing the month long celebration of the 150th anniversary of the 14A in July 9th. Truth be told I’m beginning to think I’m crazy to have started this but damnit I’m going to keep digging.
80/x Today we’re taking up the privileges or immunities clause of the 14A and the one case that settled its meaning by making it a dead letter. If you’re a law student and you want to see your con Law professor’s head explode, raise your hand in class and say this:
81/x “I think the Slaughterhouse Cases was correct in its outcome and in its reasoning.” Their reaction will likely be this:
82/x Anyway, the text of privileges or immunities of 14A states as follows: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
83/x Remember tge 1787 constitution only obligated the federal government to respect your rights under amendments 1-10. States could pretty much do what they want. So the most straightforward interpretation of the text of 14A is this:
84/x All the rights that only the feds had to respect under 1A-10A were now incorporated against the states by virtue of the privileges and immunities clause of the 14A. The first case that tried to establish that is one of the most fascinating cases in Supreme Court history.
85/x New Orleans has always been a fascinating place and after the civil war it became ground zero for Reconstruction. Folks thought that if Reconstruction was going to work New Orleans would make it work for a few reasons:
86/x It was a wealthy commercially vibrant city, it had suffered damage in the war but also had the means to rebuild, and most of all it had a large educated black and creole population that was prepared to step in and participate in post war governments.
87/x One of the big problems the city had before the war was that the river was so filthy that every few years or so a huge cholera epidemic would break out and kill a whole bunch of people.
88/x I don’t care what Marquez writes in Love in the time of Cholera, that disease doesn’t have the same symptoms as unrequited love; it’s nasty and then it kills you.
89/x Anyway the main reason the river was so nasty was that all of the city’s slaughterhouses were located in prime real estate up river and once they finished butchering animals they would dump the waste in the river, it would flow downstream and pollute water people used.
90/x The butchers were a powerful political bloc and so folks could not get the government to do anything about it. After the war, a new multi-racial government was elected under Reconstruction and it tried to prove to people that it could govern well for everyone.
91/x So one of their first initiatives was to try to clean up the river. They passed a law evicting the butchers from upriver and requiring that all butchering had to take place in a central location away from the city and the river.
92/x That central location would be run by a municipal corporation and butchers would have to bring their animals there and pay a fee to butcher them and dispose of the waste. When you think about it, not bad policy at all:
93/x The butchers, however, had other ideas and they decided they would much prefer to keep giving people cholera. So in comes one of the great villains of American history. A man by the name of John Campbell. Here’s his picture. Nasty looking isn’t he? Feel free to boo:
94/x Before the war Campbell was a justice in the Supreme Court. He was part of the majority that decided Dred Scott. When war broke out he resigned his seat and joined the confederacy as a high official but after the war things turned bad for homeboy
95/x He was arrested by military police on suspicion of having been part of the conspiracy in Lincoln’s assassination and ended up spending six months in prison, though he was never found guilty. So when he got out he wasn’t a happy camper.
96/x He moved to Louisiana and somehow made it his life’s mission to work to destroy Reconstruction. So when the butchers decided to sue to stop the law, guess who they retained as their lawyer. Yes, Reconstruction’s Darth Vader
97/x The man was a bit of an evil genius and so came up with a theory of the lawsuit that was a poison pill for the 14A: either the butchers would win and destroy the signature project of the legislature, or they would lose and render the 14A amendment virtually useless.
98/x But even before getting to the 14A, Campbell, in a fit of what the kids today would call the ultimate Caucasity decided that in addition to the 14A claim, he would argue that the new law violated the 13A because requiring the white butchers to pay a fee was slavery.
99/x That’s where we’ll pick up tomorrow. I should have warned you there was no way to get through Slaughterhouse in a single thread but you would have stopped reading a long time ago. Then again maybe you already have
100/x So today June 7, let’s finish Slaughterhouse and the privileges or immunities clause. New Orleans butchers want to keep poisoning the river and giving people cholera so they hire Reconstruction’s Darth Vader, John Campbell, to kill the law that would force them to move.
101/x He makes 4 arguments about why forcing the butchers to move to a new location and pay a fee to have their animals butchered violates the constitution.
102/x He says the law violates 13A because it’s a form of slavery, and that it violates the privileges or immunities clause, the due process clause, and the equal protection clause of 14A. When SCOTUS sees the 13A argument the justices go:
103/x The court is right but unfortunately, the fact that it was a group of white butchers who were the first plaintiffs to get the court to interpret the 13A meant that the court set a too restrictive precedent on what slavery and badges of slavery meant.
104/x In fact, the court has really only once used the 13A in robust way to enforce civil rights under circumstances that didn’t involve actual forced labor/ trafficking. A 1968 case of a white developer refusing to sell a house to a black and white couple: Jones v Alfred Mayer
105/x In other words, the very identity of the first plaintiffs to reach SCOTUS in 13A forever distorted the amendment. As for the privileges and immunities argument, Campbell makes a radical claim before the court:
106/x He says the clause means that you can use it to invalidate a state law because the privileges or immunities phrase contains every single right you have as a citizen that may be guaranteed to you under state and common law.
107/x This is radical stuff because it would mean you could use state common law property rights to kill off public welfare legislation by claiming that it violates this new clause. Years later, during the Lochner era, the court will buy the idea using due process, but for now
108/x the court realized that to accept the argument would be to deal a death blow to Reconstruction because it would mean that all laws these new multiracial state governments passed would be kicked out under that argument. So the court saw the claim for what it was
109/x It rejected it but in doing so it went too far. It said, not only the argument is bogus but the clause only incorporates a very short list of federal immunities, which does not even include the Bill of Rights.
110/x I will not bore you with the short list the court came up with but suffice it to say that it includes the right to ask the government to rescue you while you’re in peril on the high seas. Basically protect you from:
111/x Or, as a reward for reading this far, protect you from this guy
112/x Decades later the court will find a way to read the bill of rights into 14A using the due process clause but most people find that solution inelegant.
113/x Last point, the court is often blamed for playing a role in killing Reconstruction and Slaughterhouse is held up as exhibit 1 of 3. The other 2 cases are Cruikshank and The Civil Rights Cases.
114/x Funny thing, though, at least in Slaughterhouse the majority of justices were Lincoln republicans and were not flat out opposed to Reconstruction. It’s more likely that two things happened that still continue to happen:
115/x The first is that the justices were way too timid in understanding that the Reconstruction amendments were meant to rebuild the 1787 constitution rather than just tinker with it. The court still has that problem today: way too timid
116/x The second is who got in line first to interpret the 14A: basically a relatively powerful group of business interests. While the court didn’t give into them, it overcorrected and, in preventing its misuse by businesses, it crippled the amendment for people.
117/x Not exactly a deep point but yes it’s amazing how often moneyed interests end up distorting constitutional democracy. Sort of depressing I know.
118/x Anyway, that’s enough of that. Tomorrow, we get into the state action doctrine before moving on to due process and equal protection. I would offer you a reward for reading this far but your reaction would likely be:
119/x Now that Slaughterhouse is out of the way, today’s thread for June 8th on our way to the 150th anniversary of 14A in July 9th is going to pick up on the incorporation doctrine, which basically cleaned up the mess that Slaughterhouse made.
120/x To return to basic point: the bill of rights of 1787 constitution protected individual rights against federal interference, not state violations. Yeah, there were lots of deep philosophical reasons why they let states do what they want with their people but one reason was:
121/x Whatever uncertainty may have been created by Slaughterhouse, it seemed clear that after the war states had to be restrained in some ways; all you needed to decide was which individual rights now could be enforced against states and which clause to use.
122/x Taking second question first, since privileges or immunities clause was out, the due process clause became the best candidate for reasons we’ll talk about later. As to the first question, simplest answer would have been for the entire bill of rights now applied to states.
123/x Did the court go with that easy answer?
124/x Instead the court came up with what it calls selective incorporation, according to which every provision of the bills of rights would need to be considered in a case by case basis to know which one would apply. So one logical question is this:
125/x How do we know which ones apply and which ones don’t. The answer the court came up with is the sort of thing that drives textual originalists up the Wall, though to be honest originalists tend to be a touchy bunch.
126/x Selective incorporation goes like this: which rights are incorporated under 14A? Those that are fundamental? How do we know which ones are fundamental? Those that are deeply rooted in our history or key to our concept of ordered liberty. How do we know which ones are those?
127/x That depends on what?
128/x I’m beginning to think selective incorporation is not exactly objective?
129/x Seriously though, in time selective incorporation has brought in almost entire bill of rights, except for some minor stuff. For example, in federal criminal proceedings grand jury has to indict. Incorporation says it’s not so fundamental that states have to do it.
130/x But the court still goes through the motion every time a right comes up. For example up until Heller the court had never said 2A was an individual right to bear arms. The court said yes in Heller but the case was out of DC which is not a state. So,
131/x the court had to go through the motion in McDonald (a Chicago case) so it could say yes the 2A is so fundamental that under selective incorporation it applies to states.
132/x That being said, if you want to know why Justice Thomas always looks so pissed, the fundamental right reasoning of selective incorporation is one answer. (That and the substantial effects test of the commerce clause.) Until next time, when we’ll talk state action doctrine
133/x So we’ve hit June 9th: a month to go before the 150th anniversary of the 14th amendment. Our next topic is the state action doctrine. It’s arguably the single most important doctrine related to the 14th amendment. It’s going to take a few days to get through.
134/x Today’s thread is just an introduction and so will be short. To sum up, section 1 of the 14A contains its substantive rights provisions and is made up of four clauses:
135/x The citizenship clause, the privileges or immunities clause, the due process clause, and the equal protection clause. The last three are all modified by the same introductory phrase: “no state shall”. In other words, no state shall deny you privileges or immunities etc.
136/x So key question is what does it mean for a state to deny, say, due process? One meaning is that a state denies you due process if it actively does something to screw your over. Another is that it denies you due process if it passively stands by while people screw you over.
137/x Take for example violence against women. Does a state deny women due process if it knows that they disproportionately suffer gender based violence at the hands of other individuals and yet it takes little or no action to protect them?
138/x If you buy into the first meaning, the answer is no; if you believe in the second, the answer may be yes. So the state action doctrine deals with just that question. Whether the 14A permits government to protect people from discrimination committed by other people?
139/x That question has deep historical and present day consequences. For example Jim Crow wasn’t about just government-enforced segregation but also about private individuals and businesses engaging it: you don’t sell houses to black people; you don’t serve them in restaurants.
140/x If 14A applies only to state action then you can’t use it to fight Jim Crow. Today, bakers and florists are refusing to serve gay couples. If the 14A only applies to state action then you can’t use it to fight that either.
141/x There is one case that settled the question. it’s called The Civil Rights Cases. It was decided in 1883 at the tail end of Reconstruction and it involved a civil rights statute called the civil rights act of 1875 and it was about - you guessed it - black people.
142/x The facts and history behind that case are fascinating and will take the next few days to lay out. Of course, by now you may be asking yourself: “why does he always bring everything back to slavery, Reconstruction, and black people? The man is obsessed!!!!”
143/x All I can say in closing until tomorrow is that anyone who claims to analyze the constitution but then only barely mentions race either is not serious or has a blind spot the size of the Grand Canyon.
144/x It comes to this: the 1787 constitution can’t be fully grasped unless one grapples with the Reconstruction amendment, and those amendments can’t be fully understood unless one grapples with race and slavery. Until tomorrow...
145/x So it’s Sunday June 10, less than 30 days until the 150th birthday of 14A and we continue the topic of state action, which raises the question whether Congress’ power under the 14A is limited to instances in which the state explicitly acts in ways that violate the 14A.
146/x The key decision on that question is a set of consolidated cases called The Civil Rights Cases, which was decided in 1883 and concerned the interpretation of the last Reconstruction era civil rights statute: The Civil Rights Act of 1875.
147/x There is a set of fascinating debates that took place in Congress between 1870-75 over the Act, including at one point southern white legislators implying that the only reason black legislators were to eager to pass the act was because they wanted to sleep with white women
148/x But I’ll get to that later. For now, here’s a brief history of the act. It was the brainchild of Charles Sumner who first introduced it in 1870. The purpose was remarkably simple and bears quoting in full in the next tweet
149/x “to secure equal rights in railroads, public conveyances, hotels, licensed theaters, houses of public entertainment, common schools, and institutions of learning authorized by law, church institutions, and cemetery associations incorporated by national or state authority.;”
150/x Notice a couple of things. First back in 1870 Sumner was proposing to make public schools integrated. Close to 90 years would pass before the court did that in Brown. Second, the bill was trying to avert what would ultimately become Jim Crow.
151/x It’s hard to read the bill without thinking of what kind of country the US would be had the purpose of the bill been achieved back in 1870. Of course, it was no surprise the bill came from Sumner. He’d fought against segregation for most of his life.
152/x Back in 1849, before the war he sued the city of Boston to force it to admit a young black girl into one of its public schools. He argued that segregating her was a way of marking her as a member of an inferior caste. The Massachusetts Supreme Court rejected the claim.
153/x The Massachusets court said if blacks felt inferior because of segregation it was because they chose to put that spin on it. The Supreme Court would cute to that case and would refer to that same reasoning when it upheld Jim Crow in Plessy v Ferguson.
154/x By introducing the bill, Sumner was continuing his life’s work. The first bill died in committee but Sumner and his allies reintroduced it every congress only to see it die time after time. But in the process the bill produced tons of debates on the floor of the House
155/x And yes these debates ultimately devolved into arguments about whether integrating privately owned places of public accomonations (hotels, railroads etc) meant that whites would be forced to let blacks into their homes to do god knows what.
156/x I’ll try to give a flavor of those debates tomorrow. I’m not making it up: it comes down to white southern representatives accusing black members of wanting the bill in order to go:
156/x Continuing state action doctrine for Minday June 11 to the countdown of the 150th anniversary of the 14A. As mentioned yesterday, the key case in the doctrine is Tge Civil Rights Cases from 1883, interpreting the Cuvil Rights Act of 1875.
157/x The bill was first proposed by Charles Sumner back in 1870. It banned segregation in public schools, in businesses, and strangely enough in cemeteries. By the time debates start on the bill there are now over two dozen Blacks in the House and they push hard for it.
158/x At the same time, a large contingent of former confederates has also return to congress and they push equally hard against it.
159/x Confederates make 3 arguments against the bill. The first is “my Gaawd!! You’re violating state raaahhtts!!” The second is that Slaughterhouse, which had been decided in the interim, signaled that the 14A did not reach private action. But the third was the real killer:
160/x let’s quote from the debates “the next step will be that they [blacks] will demand a law allowing them, without restraint, to visit the parlors and drawing rooms if the whites, and have free unrestrained social intercourse with your unmarried sons and daughters.”
161/x Here’s another one: “if Congress has the power to pass this bill... it can also say that you must not interpose an objection on account of his color to any advances [a black man] may make toward your children or family.”
162/x These are the more polite quotes. Others were more explicit, to the point of being weirdly if unintentionally honest. One white southern representative flatly said that blacks were using the bill to gain access to white homes to extract revenge for slavery. Or:
163/x In response,black representatives tried very hard to ease any fears on that score and bent over backwards to assure southern whites that they were not interested in invading their homes. But then toward the end one had enough and said this:
164/x “there are men even who have positions upon this floor, and for whom I have respect m, but of whom I would be careful how I introduced them into my family. I should be afraid their old habits squired beyind the Mason Dixon line might return.”
165/x Translation: yeah, the reason you’re so afraid about social intercourse is that you and I both know what you used to do when you visited slave quarters after dark.
166/x Anyway, I’ll try to wrap up tomorrow by showing that the single biggest objection the south had agai st the bill was its provision that schools be integrated. Sort of messed up when you think about how long it would take us to get to Brown.
167/x For today June 12, I’ll continue with the debates on the civil rights act of 1875. Ironically, the one part of the bill that provoked some of the most intense debate ended up being cut out of the final statute: integrated public education.
168/x This is all the more ironic because that was the one part of the bill that was within the power of congress to pass since it dealt with public schools. As stated before Sumner had long worked in integrated education and so it wasn’t a surprise that he wanted it in the bill
169/x But more to the point, black legislators were adamant in wanting it in the bill because during Reconstruction newly freed slaves invested much of their effort in education - both public education and higher education.
170/x At the same time, that aspect of the bill produced the greatest resistance among former confederates who claimed they didn’t want their children engaged in what was referred to as social mixing.
171/x Indeed, some less than radical republicans urged that the education provision be dropped as a way of getting democrats on board but black legislators refused, seeing education as key to advancement of their race. (Some will recognize this picture.)
172/x In fact, in many confederate states, blacks were the force behind establishing public schools. Mississippi, among others, first had these schools when blacks recruited northern missionaries to come down south to teach after the war.
173/x In the years immediately following the war there were in fact more black children enrolled in a s hooks in Mississippi than white children.
174/x Debates raged on for 4 years until November 1874 elections when republicans lost 89 seats in the House, ending their majority. This was for all intents and purposes the end of Reconstruction in Congress. The 1876 presidential election only confirmed the end.
175/x During the lame duck session following the 1874 elections, the bill was reintroduced again but republicans facing re-election in 1876 distanced themselves from it.
176/x Finally after black legislators dropped their demands for integrated schools, the bill was passed during the 1875 session, effectively closing the door to integrated equal education until SCOTUS intervened in 1954 in Brown.
177/x So in the end the statute SCOTUS ended up considering sought to integrate private places of public accommodation and therefore raised the question whether congress could indeed reach private action under the 14A.
178/x I’ll get into facts & reasoning of the case tomorrow. It’s decided in 1883. By that time Reconstruction is in its final throes. The last paragraph of opinion is one of the first instances in which SCOTUS lectures black people to pull themselves up by their own bootstraps.
179/x Wednesday June 13. Twenty six days until July 9th when the 14A turns 150. We've been talking about the state action doctrine. At bottom, the doctrine poses a simple but profound question: does the 14A prohibit something more than just discriminatory acts by the state? Or
180/x Was the amendment meant to address instances in which the state fails to protect its citizens from discriminatory acts by private entities?
181/x If the answer is that the 14A only goes to formal discriminatory state action, then it means that the 14A is really a continuation of amendments 1-10 in the sense that so long as the state leaves you alone or treats everyone like shit, then we're all good.
182/x If the answer is that the 14A prohibits state neglect, then it means that the 14A is a break from 1A-10A and a state cannot stand idly by and neglect its citizens by, say, letting Jim Crow develop, or by not protecting them from gender-based violence.
183/x SCOTUS took up the question in The Civil Rights Cases, a set of consolidated cases, in which black plaintiffs and or the federal government sued various businesses for denying access to black people to, among others, a theatre, an opera house, and a railroad car
184/x The theory in each lawsuit was that the businesses violated the Civll Rights Act of 1875, which prohibited such discrimination. The Court ruled the Act unconstitutional, holding that Congress lacked power under the 14A unless dealing with formal explicit state action.
185/x There's no exact formal date for the end of Reconstruction but it's fair to say if it ended in Congress in 1875 with the passage of the Act, and in the executive with the 1877 compromise following the 1876 election, it ended in the Courts with that decision
186/x To make the point clear, here is the last fuck you paragraph of the majority opinion.
187/x In other words, less than 20 years after the Civil War ended and slavery was abolished, SCOTUS tells black plaintiffs complaining about the emergence of Jim Crow: it's been long enough; stop asking for "special treatment"; enough wining about civil rights already.
188/x It's interesting then to note that this fairly common modern response about demand for equal rights that "my god!!! when will it be enough" actually started as soon as the war was over.
189/x Tomorrow, let's talk about the dissent in the case. It was written by Justice Harlan, who would also go on to write the Plessy dissent. Interesting guy. He was a Southerner who first supported slavery, but then became a defender of civil rights.
190/x Today is June 14. Yesterday we talked about the majority opinion in the Civil Rights Cases, arguably the single most important decision interpreting the meaning of the 14A. Now we turn to the dissent written by Justice Harlan, an extraordinary but neglected opinion.
191/x To briefly step back, the question before the Court was whether Congress had the power under section 5 of 14A to outlaw racial discrimination in privately-owned places of public accommodation. The majority said no, reasoning that Congress could only reach state action.
192/x In his dissent, Harlan began by pointing out that when the country was committed to slavery, it devoted the full weight and prestige of the federal government to defending it. Harlan came with receipts:
193/x he pointed out that the 1787 constitution, the fugitive slave acts of 1793 and 1850, the court's own decisions in Prigg v. Pa, Ableman v, Booth, & Dred Scott v. Sanford committed not just slave states but the entire country to the cause of slavery. To quote Harlan:
194/x "the right of the master to have his slave, being guaranteed by the Constitution, the fair implication was that the federal government was clothed with the appropriate authority and functions to enforce it." Meaning, the country valued slavery and found a way to enforce it.
194/x So Harlan reasoned, if we now value freedom and equality as much as we valued slavery then we should give the government the same authority to enforce those values as we gave it when we wanted to enforce slavery.
194/x The second point Harlan makes is that it is a mistake to read the 14A separate from the 13A or the 15A. You need to read them together so that you can understand what the framers of those provisions were tryting to do.
195/x And what they were trying to do, according to Harlan, was to create what Harlan called a new right to "civil freedom" or rights that are "fundamental in citizenship in a free government." What Harlan is saying in the dissent is a radical reimagining of American society
196/x He's saying that being a free citizen means that you have certain civil freedoms and that it is not enough for the government to stay out of your business but that it also has an affirmative obligation to make sure those freedoms are protected even from private encroachment
197/x Some dissents become famous because eventually the court adopts them as law. Harlan's dissent in Plessy v. Ferguson is one. Others (most) fall into obscurity, only to be obsessed over by obsessive academics. Harlan's dissent in the Civil Rights cases is one.
198/x And yet, here's a thought: a few months ago there was a furor when HBO floated the idea of a TV series imagining a United States had the South won the war. Some folks only half jokingly remarked that in the way the South did win given what happened after Reconstruction.
199/x One can only imagine what the country would have been had Harlan's dissent in the civil rights cases been the majority - in other words, had the Court declared in 1883 that Congress had broad powers to fight against racial subordination.
200/x Perhaps nothing much would have happened since both Congress and the executive had by then lost their appetites for racial justice. Or perhaps that decision, like Brown, might have cracked the door open to a different world.
201/x Anyway, enough of that. Tomorrow we'll talk a little about what happened after the decision came down and how we're still living with its effects today.
202/x Friday June 15th, this thread will be short. We've been talking about the state action doctrine and its impact on the 14A. The holding in the Civil Rights Cases that Congress lacks the power to reach private action under the 14A remains to this day good law.
203/x However, the Court has found ways to work around it. The biggest workaround is the commerce clause, which Congress uses to outlaw discrimination by private actors. We have the commerce clause to thank for, among other things, the Civil Rights Act of 1964,
204/x The Fair Housing Act, the American with Disabilities Act. If Google cannot fire you just because you're a woman, or Ford has to accommodate you if you suffer from an anxiety disorder, or the Trump company cannot keep out black tenants, you have the commerce clause to thank
205/x In other words, these private companies cannot discriminate against you, not because the 14A guarantees you a measure of dignity and equality but because Congress has decided that discrimination is bad for business.
206/x The irony is that back in 1883 in the Civil Rights Cases, the Court was aware that the commerce clause could be used to outlaw private discrimination but it chose not to uphold the 1875 Act on that basis because the parties had not specifically made the argument.
207/x A final cheerful thought to start the weekend. During debates over the 1875 Act black legislators warned that this was the last best chance to make sure that the country didn't diverge into two nations: one white and one black. White legislators called them hysterical
208/x The black legislators were right.
209/x Until tomorrow; I have a brief to finish writing and can't do it completely sober.
210/x Saturday June 16; Twenty-three days to go until July 9th, the 150th anniversary of ratification of the 14A. The last few days, we've talked state action doctrine by looking at the Civil Rights Act of 1875 and the Civil Rights Cases decision that established the doctrine.
211/x We've talked about how SCOTUS has permitted Congress to use the commerce clause to work around the limitation that the 14A does not reach private acts of discrimination. Another set of workarounds the court has devised are three main exceptions to the doctrine.
212/x The first is the government function exception. If you're a private actor and are engaged in an activity that has traditionally been the exclusive function of government then the 14A can be used against you. Most obvious current example: privately-run prison.
213/x Another more historical example: white primaries. In various sections of the South primaries to select candidates for the general election were run by private political clubs open to only whites. SCOTUS held these clubs to be state actors for purposes of the 14A.
214/x The second exception is based on government entanglement and basically means if the private actor and the government are all up in each other business then the private actor is deemed a state actor for purposes of the 14A.
215/x Best example is a case students learn in con law: a city leases space in a city-owned building to a diner that doesn't serve black people. Sign for the building makes it clear it's a government building and city receives rent every month from diner. Diner is state actor.
216/x The third exception is called government entwinement. No one is sure how entwinement is different from entanglement but everybody pretends they do. (Only slightly kidding; the distinction can be explained but I would bore you even more than I already have)
217/x When you add the commerce clause to these exceptions, it sometimes feels like courts have more or less found ways to make the 14A function the way it was intended to but that's not really true. For one thing, different courts read the exceptions more or less broadly.
218/x For another thing, neither the commerce clause nor these exceptions address two deeper questions: the first is did the 14A redefined the substantive meaning of citizenship?
219/x The second question is does the 14A empower Congress to pass anti-subordination legislation aimed at correcting not state action against its citizens but state neglect of its citizens?
220/x Nothing exemplifies the failure of 14A doctrine to answer these questions than the student lunch-counter protests of the sixties, when federal courts were utterly clueless on how to explain that being a free citizen had to mean at a minimum the right to basic dignity
222/x Tomorrow, we'll move one to one last doctrine that shapes congressional power under the 14A: congruence and proportionality, which sets limits on how far Congress may go even when targeting state action. Kennedy invented the doctrine, so it's predictably loosy-goosy
223/x It's June 17 and I'm getting back to playing sisyphus and keep pushing that boulder up the mountain until July 9th until the 150th anniversary of the 14A.
224/x The topic today and for the next few days is the congruence and proportionality doctrine, which purports to determine how far Congress may go when it passes legislation under section 5 to enforce the provisions of section 1 of the 14A.
225/x The doctrine is relatively recent - first introduced in a 1997 case titled City of Boerne v. Flores in a majority opinion authored by Justice Kennedy. In other words, the 14A had been around for almost 130 years before SCOTUS decided it needed to clarify what sect 5 meant
226/x To understand how congruence and proportionality shapes congressional power under section 5 of 14A, however, you have to step back and review the way congress exercises power under Article I of 1787 Constitution. I know what you're thinking:
227/x Won't take long; promise. Basically, states can exercise all powers unless constitution says they can't, but feds cannot exercise any power unless constitution says they can. So every time congress passes legislation, it has to identify exact constitutional power it uses.
228/x Most (not all) of congress power is in Article I, Section 8, which catalogues a long list of powers (regulate commerce, declare war etc) and then ends in a catch-all provision that says congress can make all laws that are "necessary and proper" in exercising those powers
229/x The necessary & proper clause is not an independent source of power; it simply says since congress has power to, say, borrow money, then it can pass any legislation that is necessary and proper to borrow money. There are two possible ways of interpreting necessary & proper
230/x The narrow way is a law is necessary and proper only if you cannot exercise your power unless you pass it. The broad way is a law is necessary & proper so long as it reasonably falls within your power and doesn't otherwise violate some other part of the constitution.
231/x Way back in 1819, in McCulloch v. Maryland, the broad interpretation won out, such that whenever Congress uses an Article I power, SCOTUS pretty much lets it do what it wants. (You'd be amazed at the stuff Congress has passed under its powers to establish post offices)
232/x So this gets us back to section 5 of 14A. Unlike Art I sect 8, which says congress can pass all laws that are "necessary and proper," section 5 says that congress has the power to enforce by "appropriate legislation" the provisions of section 1.
233/x Is "appropriate legislation" less or more powerful than "necessary and proper"? Does congress have more or less discretion to pass laws under 14A Sect 5 than it has under Art I Sect 8? Or is appropriate legislation the same thing as necessary and proper?
234/x This is what Kennedy had to answer in City of Boerne v. Flores. Con law students tend to hate the case, first because professors can never really explain the congruence and proportionality test Kennedy came up with, and second because they can never pronounce "Boerne" right
235/x Tomorrow, we enter City of Boerne (I'm not good at puns; this is pretty much the best I can do ... we enter the City....). (P.S. to pronounce City of Boerne correctly, then of a recent presidential candidate).
"think" of a recent..... not "then" of a recent.... apparently writing correct words is hard too.
236/x June 18. Back to the grindstone until July 9th. Yesterday we talked about doctrine of congruence and proportionality which sets limits on congressional power under 14A and that doctrine emerged from City of Boerne v. Flores.
237/x I promised to get into the facts of Boerne but I sort of lied because you can't really understand Boerne unless you take a detour into the free exercise clause of the first amendment. I know this is you right now if you're reading this
238/x I'll make it short. In 1990 SCOTUS decides a case called Smith, in which it said if congress passes a law that generally applies to everybody, you can't really complain that the law burdens your religion.
239/x Smith pissed off some people because before Smith you could challenge these laws under strict scrutiny, forcing the government to show it had a compelling interest in passing it. Since Congress doesn't like it when religious folks are upset, it sets about fixing Smith.
240/x So in 1993, Congress passes the Religious Freedom Restoration Act (RFRA). The law is complicated but for our purposes, it restores things to what they used to be pre-Smith: if you say a law burdens your religion, then the government has to justify it under strict scrutiny
241/x The other thing to mention about the law is that Congress used 14A sect 5 power to pass it. The idea being that due process includes substantive due process, which includes fundamental rights, which includes freedom of religion. So congress is passing RFRA to protect 1A
242/x Getting then to Boerne, a catholic church wanted to expand their building to fit more people but the City denied them a permit because the church was in a historic district and the City had recently passed a preservation ordinance.
243/x There was no evidence of animus toward the church and the historic preservation law applied generally to everybody but still the Church sued, claiming it violated the new RFRA. The state responded that RFRA was unconstitutional because it exceeded 14A Sect 5 power.
244/x In the past, when asked to look at sect 5 power, SCOTUS tended to say that if the statute Congress passes is reasonably related to what it is trying to do, then who are we to say differently.
245/x But in Boerne Kennedy now says the free ride is over. First, Kennedy says sect 5 does't give congress power to define new rights or define what existing rights mean; only the court gets to do that:
246/x In other words, "we already done tol' y'all in Smith what freedom of religion means!!! What makes you think you can go on and redefine it with RFRA?"
247/x But Kennedy is not done. Then he says, even if Congress is enforcing an existing right, it can only use sect 5 if the statute is congruent and proportional. What the hell is that mean?
248/x It means that congress can use sect 5 to tell state to stop fucking around with people's rights but if it's going to do that, it better show that states are in fact fucking with your rights (congruence) and the its solution must match the problem (proportionality).
249/x In the context of RFRA, Kennedy asked: are you really telling me that we have a big problem in this country of state governments being hostile to religion?
250/x Then, why did you pass a statute that lets anyone claiming religious freedom stop ordinary laws like zoning laws dead in their tracks because they say it may interfere with their religion? How are cities suppose to function if any religious nut can use RFRA to block laws?
251/x Boerne is the sort of case that was invented to create employment opportunities for law professors. The case has generated so many law review articles that it gives new meaning to this:
252/x But in all seriousness, the case did change 14A landscape. Truth is, he civil rights movement, among other things, created political space for Congress to start using the 14A after it had left it to die on the vine since 1875. Boerne slowed that down. Until tomorrow:
253/x Tuesday June 19th. I'm filing a brief in a case tomorrow, so today's thread on 14A will be short. Giving how long this thread already is and how long it will likely get by the time I get to July 9th for the 150th anniversary, it may be helpful to reiterate the following:
254/x This thread is a celebration of the 14A; it is not meant for academics but rather folks who may be curious and wish to know more. My hope is rather modest: to convince folks that the 14A, though often neglected and misunderstood, is one of our constitutional jewels.
255/x To go back to yesterday's discussion, If you put together the congruence and proportionality doctrine of City of Boerne together with the state action doctrine of the Civil Rights Cases, you end up with the following very narrow reading of the 14A:
256/x Congress may use its section 5 power under the 14A only when it identifies a specific "evil"by states that interferes with due process and equal protection rights, and the remedy congress comes up with be a pretty targeted remedy for that evil.
257/x That narrow definition leaves out at least two things: the first is that it would appear to render Congress powerless (at least when it comes to 14A) to address passive state neglect (as opposed to active oppression) of its citizens.
258/x The second, which I alluded to early in this thread is that it makes no room for Congress to use Sect. 5 to address citizenship clause of sect 1, which, unlike the privileges or immunities, due process, and equal protection clauses, does not have a state action requirement.
259/x So, Ill close tonight with a question I've posed before: When the civil war was over, and bodies still decayed in the fields, and black people roamed the countryside looking for family members sold off to distant plantations, what did drafters of 14A mean by "citizen."?
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