Key Terms

Multiple Choice Questions

1.1. Rights at the Founding

1.2. Rights against the States

1.3. State Action and the 14th Amendment

1.4. The Privileges or Immunities Clause

1.5. Racial Segregation

1.6. Commercial Regulation

1.7. Personal and Familial Autonomy

Case Briefs

United States v. Hall (S.D. Alabama 1871)

Facts: The defendants were charged with violating the Civil Rights Act of 1870 by conspiring to prevent Black citizens from exercising their right to peaceably assemble. The defendants argued that while the Constitution recognizes the freedom of speech and assembly, it only restricts states from interfering with these rights. It does not give Congress the power to protect those rights against private interference.

Procedural History: The case arose from a criminal indictment in the United States Circuit Court for the Southern District of Alabama.

Issue Statement: Does Congress have the power under the Fourteenth Amendment to enforce the right of Black citizens to peaceably assemble against private actors who conspire to deprive them of that right? If so, when can Congress pass such legislation?

Holding: Yes. Congress has the power to protect the rights of citizens against infringement by private parties through legislation under the Fourteenth Amendment when states fail to protect those rights.

Rules:

• The Fourteenth Amendment secures the rights of citizens against infringement by state governments.
• The right to peaceably assemble is a right of citizenship.
• Congress has the power to directly enforce basic citizenship rights through federal legislation, even against private actors, when states fail to secure those rights. And Congress may do so on a class-wide basis (based on a general failure by states to enforce those rights) rather than only being able to authorize federal intervention when states have violated the Fourteenth Amendment in a particular case.

Reasoning: Judge Woods stated that even though the Constitution does not explicitly grant the right to peaceably assemble, it recognizes and secures this right as a “privilege or immunity” of citizenship—a right that states are required to guarantee. And when states fail to provide this guarantee, Congress may directly protect this right through federal legislation, authorizing suits to be brought in federal court that would ordinarily be brought in state court (such as criminal or civil cases against private actors who violate others’ citizenship rights). The court emphasized the need for federal protection of citizenship rights under the Fourteenth Amendment, even if doing so interferes with state laws or their administration.

Disposition: The court upheld the indictment and the constitutionality of the federal statute, ruling against the defendants.

United States v. Cruikshank (D. Louisiana 1874)

Facts: This case arose from the Colfax Massacre of 1873, in which a white mob attacked and killed Black Republicans. The defendants were charged with conspiring to intimidate Black citizens and prevent them from exercising their constitutional rights. They argued that the Civil Rights Act of 1870 was unconstitutional because it exceeded Congress’s power and encroached upon the state’s authority.

Procedural History: The case arose from a criminal indictment in the United States Circuit Court for the District of Louisiana.

Issue Statement: Does Congress have the power under the Fourteenth Amendment to enforce the rights of Black citizens against private actors who conspire to deprive them of those rights? If so, when can Congress pass such legislation?

Holding: No. Congress does not ordinarily have the power to pass laws that directly punish private individuals for committing crimes that violate the citizenship rights of Black citizens unless the state is directly involved in denying those rights.

Rules:

• Although many citizenship rights operate against private actors, the Fourteenth Amendment primarily applies only to state action. Congress may generally intervene to secure those rights directly against private abridgment only when states violate their constitutional responsibility to equally protect those rights. Federal intervention is inappropriate when states are not violating those rights.
• But when the Constitution or federal laws create new rights rather than merely securing existing rights, Congress may intervene to directly protect those rights against private violations, regardless of state action or inaction.
• In dicta, Justice Bradley indicated that Congress could nonetheless authorize direct enforcement against private violations of citizenship rights that were specifically motivated by racially discriminatory intent. (Note: This view was highly idiosyncratic and not widely embraced by Republicans or other judges.)

Reasoning: Justice Bradley emphasized that the Fourteenth Amendment was primarily designed to limit state action, not private action. In general, Congress could only interfere when the state violated constitutional rights. According to Justice Bradley, allowing Congress to federally publish ordinary crimes like murder, robbery, or assault would be overstepping its authority, as those matters fall under the jurisdiction of state governments. (Notably, however, Justice Bradley agreed with Judge Wood that citizenship rights included retained natural rights; he did not construe scope of the Privileges or Immunities Clause narrowly in the way that the Supreme Court eventually did in the Slaughter-House Cases.) Congress could generally only intervene when the state failed to provide equal protection to its citizens, such as by refusing to prosecute crimes against Black individuals.

Disposition: The court dismissed several counts of the indictment, as they did not allege state involvement in the deprivation of rights.

Slaughter-House Cases (1873)

Facts: The Louisiana legislature passed a law that granted a monopoly on certain aspects of the slaughterhouse business in New Orleans to a single company (The Crescent City Live-Stock Landing and Slaughter-House Company). Butchers whose rights were limited by this monopoly argued that this law violated their Fourteenth Amendment rights to practice their trade and earn a living.

Procedural History: The case was appealed to the United States Supreme Court from the Supreme Court of Louisiana.

Issue Statement: Does the Fourteenth Amendment’s Privileges or Immunities Clause protect a citizen’s right to practice their trade? If so, did the grant of monopoly privileges violate that right?

Holding: No. The Fourteenth Amendment’s Privileges or Immunities Clause does not protect the right to practice one’s trade from state regulation.

Rules:

• The Fourteenth Amendment was enacted primarily to protect the rights of the recently emancipated Black citizens.
• The Fourteenth Amendment recognizes both United States citizenship and state citizenship, which are distinct from each other.
• The Privileges or Immunities Clause of the Fourteenth Amendment protects only those privileges and immunities that arise from national citizenship, not those that attach to state citizenship (and which are secured under the Privileges and Immunities Clause of Article IV).

Reasoning: The majority opinion, written by Justice Miller, determined that the Fourteenth Amendment’s primary goal was to ensure the freedom and equal treatment of formerly enslaved Black citizens, not to transfer authority to Congress and federal courts to resolve most rights claims. The Court thus interpreted the Privileges or Immunities Clause as protecting only those rights associated with national citizenship, not fundamental rights of state citizenship, such as the right to practice a trade. Justice Miller suggested that allowing federal courts to intervene in such matters would drastically expand federal power over state affairs, exceeding the intended scope of the Fourteenth Amendment. Moreover, Justice Miller indicated that even if the Privileges or Immunities Clause applied, the grant of monopoly privileges was a reasonable exercise of the police power, not a violation of the butchers’ citizenship rights.

Disposition: The Supreme Court upheld the Louisiana law, denying the butchers’ claims.

Bradwell v. Illinois (1873)

Facts: Myra Bradwell was denied a license to practice law in Illinois solely based on her sex. She argued that this denial violated her Fourteenth Amendment rights.

Procedural History: The case was an appeal of the denial of a license to practice law in Illinois to the United States Supreme Court.

Issue Statement: Does the Fourteenth Amendment’s Privileges or Immunities Clause protect a woman’s right to practice law?

Holding: No. The Fourteenth Amendment’s Privileges or Immunities Clause does not protect a woman’s right to practice law.

Rules: The Fourteenth Amendment’s Privileges or Immunities Clause protects the rights associated with national citizenship, not those attached to state citizenship.

Reasoning: In a majority opinion delivered by Justice Miller, the court held that admission to the bar was not a right inherent in national citizenship. The decision relied heavily on the reasoning established in the Slaughter-House Cases, emphasizing that states retained the power to regulate the legal profession within their jurisdiction. Justice Bradley, who dissented in the Slaughter-House Cases, concurred in this decision but offered different reasoning. He suggested that the right to practice law fell under a person’s right to pursue a lawful employment—a right that in his view was within the scope of the Privileges or Immunities Clause. However, he concluded that denying women the right to practice law was justified based on their presumed domestic roles and “the natural and proper timidity and delicacy which belongs to the female sex”.

Disposition: The Supreme Court upheld the Illinois Supreme Court’s decision to deny Myra Bradwell’s application to practice law.

Minor v. Happersett (1875)

Facts: Virginia Minor, a woman and a United States citizen, was denied the right to vote in Missouri based on her sex. She argued that the Fourteenth Amendment guaranteed her right to vote.

Procedural History: The case was appealed to the United States Supreme Court from the Missouri Supreme Court.

Issue Statement: Does the Fourteenth Amendment guarantee to women the right to vote?

Holding: No. The Fourteenth Amendment does not grant women the right to vote.

Rules:

• Citizenship does not necessarily confer the right to vote.
• The Constitution leaves the regulation of suffrage to the states.

Reasoning: In a unanimous opinion, the Supreme Court led by Chief Justice Waite, acknowledged that women were citizens, both before and after the Fourteenth Amendment. However, the court reasoned that citizenship did not automatically confer the right to vote. Historically, states had regulated suffrage, including the denial of the right to vote to many citizens (such as women and children), and the Fourteenth Amendment did not alter this arrangement. (At the time, the right to vote was often considered a “political right” (i.e., a right to participate in governmental decision-making) rather than a “civil right” (i.e., a right of citizenship).

Disposition: The Supreme Court upheld the Missouri law and denied Virginia Minor’s claim to the right to vote.

Strauder v. West Virginia (1880)

Facts: A Black man, William Strauder, was convicted of murder by an all-white jury in West Virginia. West Virginia law explicitly prohibited Black people from serving on juries. Strauder argued that this law violated the Fourteenth Amendment, including his right to equal protection of the law.

Procedural History: The case was appealed to the United States Supreme Court from the Supreme Court of West Virginia.

Issue Statement: Does a state law that prohibits Black citizens from serving on juries violate the Fourteenth Amendment’s Equal Protection Clause?

Holding: Yes. A state law that prohibits Black citizens from serving on juries violates the Fourteenth Amendment’s Equal Protection Clause.

Rules:

• The Fourteenth Amendment was enacted to guarantee equal civil and political rights to Black citizens.
• States cannot make or enforce laws that abridge civil or political rights by discriminating based on race.

Reasoning: The majority opinion, delivered by Justice Strong, emphasized that the Fourteenth Amendment was intended to guarantee equal civil and political rights to the recently emancipated Black citizens. (The notion that the Fourteenth Amendment secures equal political rights was seemingly a departure from the original meaning of the Amendment.) The Court determined that the West Virginia law created a system where Black defendants would always face all-white juries. This discriminatory selection process undermined the guarantee of equal protection for Black citizens. (Notably, however, the Court relied on a blend of different equality arguments, reflecting different understandings of equality.) Justice Field dissented, arguing that jury service was not a right inherent in citizenship. He also criticized the notion that racially discriminatory jury selection would deprive the rights of defendants. For instance, he pointed out that if it were true that defendants could not receive a fair trial from all-white juries, then racial diversity on juries would be constitutionally required (not merely racially non-discriminatory jury selection).

Disposition: The Supreme Court reversed Strauder’s conviction, finding that the state statute violated his rights under the Fourteenth Amendment.

The Civil Rights Cases (1883)

Facts: The Civil Rights Act of 1875 outlawed racial discrimination in places of public accommodation, such as inns, theaters, and transportation. Several cases challenging this federal statute were consolidated and presented to the Supreme Court.

Procedural History: These cases were consolidated and appealed to the United States Supreme Court.

Issue Statement: Does the Fourteenth Amendment empower Congress to prohibit racial discrimination by private individuals in places of public accommodation?

Holding: No. The Fourteenth Amendment does not empower Congress to prohibit racial discrimination by private individuals in places of public accommodation.

Rules:

• The Fourteenth Amendment prohibits state action that denies equal protection of the laws, but it does not directly regulate the actions of private individuals.
• Congress’s power under Section 5 of the Fourteenth Amendment is limited to enacting corrective legislation to remedy violations of the amendment by state actors, not to regulate private conduct.

Reasoning: The majority opinion, written by Justice Bradley, maintained that the Fourteenth Amendment was intended to limit state action, not private conduct, and that Congress’s enforcement power thus only allowed for “corrective” suits against state actors. Justice Bradley reasoned that a broader interpretation of Congress’s power reaching private conduct would allow Congress to regulate virtually anything, encroaching on the autonomy of states and individuals. Justice Harlan’s dissent argued that the Fourteenth Amendment, particularly through its Citizenship Clause, granted Congress the authority to protect the civil rights of Black citizens, including freedom from racial discrimination. He thus maintained that Congress could act proactively to prevent discrimination, rather than waiting for states to enact discriminatory laws. He further argued that certain putatively private activities, such as operating places of public accommodation, should be treated as state action.

Disposition: The Supreme Court held that the public-accommodations provision of the Civil Rights Act of 1875 was unconstitutional.

Yick Wo v. Hopkins (1886)

Facts: A San Francisco ordinance required laundries operating in wooden buildings to obtain a license from the city. While the ordinance was facially neutral, it was applied in a racially discriminatory manner, with nearly all licenses granted to white applicants and almost all denied to Chinese applicants.

Procedural History: Yick Wo was convicted of violating the San Francisco ordinance. He appealed his conviction, arguing that the discriminatory enforcement of the ordinance violated his Fourteenth Amendment rights. The case reached the United States Supreme Court.

Issue Statement: Does the discriminatory enforcement of a facially neutral law violate the Fourteenth Amendment’s Equal Protection Clause?

Holding: Yes. The discriminatory enforcement of a facially neutral law violates the Fourteenth Amendment’s Equal Protection Clause.

Rules:

• The Fourteenth Amendment’s Equal Protection Clause guarantees equal protection of the laws to all persons within the jurisdiction of the United States.
• A law that is fair on its face but is applied with an “evil eye and an unequal hand” so as to discriminate against a particular class of persons violates the Equal Protection Clause.

Reasoning: Justice Matthews, writing for the majority, stated that the Fourteenth Amendment’s Equal Protection Clause safeguards the rights of all citizens, regardless of race or nationality. The court recognized that while the San Francisco ordinance was neutral in its language, its application revealed a clear pattern of discrimination against Chinese laundry owners. This unequal treatment, according to the Court, transformed the ordinance into a tool of discrimination that violated the Fourteenth Amendment.

Disposition: The Supreme Court reversed Yick Wo’s conviction, concluding that the discriminatory enforcement of the ordinance violated his Fourteenth Amendment rights.

Plessy v. Ferguson (1896)

Facts: A Louisiana law mandated separate railway carriages for white and Black passengers. Homer Plessy, a man of mixed race who appeared white, was arrested for refusing to leave a “whites-only” car. He challenged the law, arguing that it violated his Fourteenth Amendment rights.

Procedural History: The case was appealed to the United States Supreme Court.

Issue Statement: Does a state law mandating separate but equal accommodations for Black and white railway passengers violate the Fourteenth Amendment?

Holding: No. A state law mandating separate but equal accommodations for Black and white railway passengers does not violate the Fourteenth Amendment.

Rules:

• The Fourteenth Amendment guarantees racial equality with respect to civil rights. However, state laws requiring racial segregation satisfy this requirement so long as the facilities offered are equal.
• States have the power to enact laws under their police power to promote the public good, as long as these laws are reasonable and do not arbitrarily discriminate against a particular class of persons. Judges must give some deference to legislative assessments of the public good.

Reasoning: The majority opinion, authored by Justice Brown, asserted that segregation in public facilities did not inherently violate the Fourteenth Amendment if the separate accommodations provided were equal. Responding to the argument that the facilities were unequal in terms of their social status, the majority reasoned that any such social status was not the product of state action and that social prejudices could not be eradicated through legislation. Moreover, states had the right to exercise their police power to maintain public peace and order, even through racial segregation, and that judges should be deferential toward legislative judgments of the public good. Justice Harlan’s powerful dissent rejected the “separate but equal” doctrine, stating that the Constitution is “color-blind” and does not tolerate racial classifications in matters of civil rights. He warned that the decision would perpetuate racial animosity and undermine the principles of equality enshrined in the Fourteenth Amendment.

Disposition: The Supreme Court upheld the Louisiana law, establishing the “separate but equal” doctrine that would remain in place for decades.

Lochner v. New York (1905)

Facts: A New York law limited the number of hours bakers could work to 60 hours per week or 10 hours per day. Lochner, a bakery owner, was convicted of violating this law by allowing an employee to work more than the permitted hours.

Procedural History: Lochner challenged the law, arguing it violated his Fourteenth Amendment rights. The case reached the United States Supreme Court.

Issue Statement: Does a state law limiting the number of hours bakers can work violate the Fourteenth Amendment’s Due Process Clause by interfering with the freedom of contract between employers and employees?

Holding: Yes. A state law limiting the number of hours bakers can work violates the Fourteenth Amendment’s Due Process Clause.

Rules:

• The Fourteenth Amendment’s Due Process Clause protects the freedom of contract between employers and employees.
• States can regulate employment under their police power to protect the health, safety, and welfare of their citizens.
• However, state regulations must have sufficient relation to the legitimate ends they seek to achieve and cannot be arbitrary or unreasonable.

Reasoning: The majority opinion, written by Justice Peckham, declared that the New York law was not a valid exercise of the state’s police power because it did not have sufficient relation to the health of bakers. They found the law to be an arbitrary interference with the freedom of contract between employers and employees, protected by the Fourteenth Amendment’s Due Process Clause. Justice Harlan’s dissent argued that the Court should be more deferential to the judgment of the legislature regarding the need to protect the health and well-being of bakers and that sufficient evidence justified the legislative decision. He believed that the law should be upheld as a reasonable measure to address the potentially unhealthy working conditions in bakeries. Justice Holmes, in a separate dissent, articulated his view of judicial restraint, arguing that the Court should even be willing to uphold the statute as a labor regulation (i.e., as a remedy to inequitable bargaining conditions) and that judges should not impose their own economic theories.

Disposition: The Supreme Court struck down the New York law, marking a key moment in the “Lochner Era,” in which the Court frequently invalidated economic regulations based on its interpretation of the Due Process Clause.

Jacobson v. Massachusetts (1905)

Facts: A Massachusetts law required all adults to be vaccinated against smallpox or pay a fine. Jacobson, a citizen, refused to be vaccinated and challenged the law, claiming it violated his Fourteenth Amendment rights.

Procedural History: The case was appealed to the United States Supreme Court.

Issue Statement: Does a state law requiring mandatory vaccination violate an individual’s liberty protected by the Fourteenth Amendment?

Holding: No. A state law requiring vaccination does not violate an individual’s liberty protected by the Fourteenth Amendment.

Rules:

• The state has the authority to enact reasonable regulations under its police power to protect the public health and safety.
• Individual liberties may be subject to reasonable restraints for the common good, including mandatory vaccination.

Reasoning: Justice Harlan, writing for the majority, upheld the state’s authority to enforce compulsory vaccination laws, recognizing that individual liberty is not absolute and can be restricted by reasonable regulations aimed at protecting public health. The court balanced the individual’s right to bodily integrity against the state’s interest in preventing the spread of a contagious disease and concluded that the state’s interest justified the restriction of individual liberty.

Disposition: The Supreme Court upheld the Massachusetts law, establishing the precedent that states have the power to mandate vaccinations in the interest of public health.

Pierce v. Society of Sisters (1925)

Facts: An Oregon law required all children to attend public schools, effectively prohibiting private schools, including parochial schools operated by the Society of Sisters.

Procedural History: The Society of Sisters challenged the law, arguing that it violated the Fourteenth Amendment’s protection of liberty for students, parents, and teachers. The case reached the United States Supreme Court.

Issue Statement: Does a state law requiring all children to attend public schools violate the Due Process Clause as an unconstitutional interference with the liberty of students, parents, and teachers, including the right of parents to direct the upbringing and education of their children?

Holding: Yes. A state law requiring all children to attend public schools violates the liberty of parents and guardians to direct the upbringing and education of their children protected by the Fourteenth Amendment.

Rules:

• The Fourteenth Amendment’s Due Process Clause protects the liberty of parents to direct the upbringing and education of their children.
• States can regulate education but cannot unreasonably interfere with the liberty of parents to choose the type of education their children receive by eliminating the choice to attend private school.

Reasoning: The Supreme Court, in an opinion by Justice McReynolds, recognized the fundamental right of parents to choose the type of education their children receive. The court found that the Oregon law went beyond reasonable regulation and unreasonably interfered with this right. It argued that the state could not mandate that all children attend public schools, as it would effectively eliminate the choice of attending private schools.

Disposition: The Supreme Court struck down the Oregon law, reaffirming the important role of parental rights in education.

Buck v. Bell (1927)

Facts: A Virginia law allowed the forced sterilization of individuals deemed “feeble-minded” to prevent the transmission of hereditary defects. Carrie Buck, a young woman labeled as “feeble-minded,” was ordered to be sterilized under this law.

Procedural History: Buck challenged the law, arguing it violated her Fourteenth Amendment rights. The case reached the United States Supreme Court.

Issue Statement: Does a state law allowing the forced sterilization of individuals deemed “feeble-minded” violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment?

Holding: No. A state law allowing the forced sterilization of individuals deemed “feeble-minded” does not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Rules:

• States have the power to enact laws to protect the health and welfare of their citizens.
• However, such laws must not be arbitrary or unreasonable.

Reasoning: In a deeply controversial opinion written by Justice Holmes, the Court upheld the Virginia law, emphasizing the state’s interest in preventing the transmission of hereditary defects, such as “feeble-mindedness.” Holmes infamously stated, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. … Three generations of imbeciles are enough.” Justice Butler dissented without writing an opinion.

Disposition: The Supreme Court upheld the Virginia law, paving the way for the forced sterilization of thousands of individuals in the United States. This case remains a stark example of the dangers of eugenics and the potential for the abuse of state power. From a jurisprudential standpoint, it illustrates a potential cost of judicial deference to legislative judgments.