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Excerpted from: Orville Vernon Burton, The Creation and Destruction of the Fourteenth Amendment During the Long Civil War, 79 Louisiana Law Review 189 (Fall, 2018) (312 Footnotes Omitted) (Full Document)

OrvilleVernonBurtonThe Fourteenth Amendment, "the linchpin of the current constitutional system," is vital to the integrity of the Constitution. Particularly in the 1860s and 1870s, and again in the 20th century, the Amendment has had the greatest influence on the way American citizens live their lives, and it is cited more often in modern litigation than any other amendment. The Fourteenth Amendment overturned Chief Justice Roger Tawney's notorious 1857 decision, Scott v. Sanford. In 1886, the Supreme Court interpreted the Fourteenth Amendment to rule that corporations were persons in Santa Clara County v. Southern Pacific Railroad. In 1954, the courts used the Fourteenth Amendment in Brown v. The Board of Education of Topeka to overturn the 1896 decision Plessy v. Ferguson, which legalized segregation. In 1962, the Fourteenth Amendment was the basis of the Baker v. Carr Supreme Court ruling that legislative bodies must consist of one man, one vote. The Court used the Fourteenth Amendment's guarantee of due process and equal protection in 1963 to desegregate Clemson University. In 1966, the courts used the Equal Protection Clause of the Fourteenth Amendment to overturn the male-only admission policy of the Virginia Military Institute. In 1971, the Court held that a law discriminating against women violated the Fourteenth Amendment and overturned the 1873 Bradwell v. Illinois decision, which upheld Illinois's refusal to allow women to become lawyers. In 1973, the landmark Roe v. Wade case was based on the Fourteenth Amendment. Finally, in 2000, the Supreme Court decided the presidential election in Bush v. Gore on the basis of the Equal Protection Clause of the Fourteenth Amendment.

How, and why, did the Fourteenth Amendment become this extraordinarily wide-ranging in its application and its influence in the United States, when the drafters created the Fourteenth Amendment to protect the rights of the newly freed enslaved people in the South and to provide them citizenship rights? This Article investigates the beginning of the story in the second half of the 19th century, when the Fourteenth Amendment revolutionized the lives and possibilities of African-Americans. It goes on to discuss how the Supreme Court undid most of those gains toward equality and equal rights for black citizens. Revolutions do go backward, and this story stands as a warning for modern times and court interpretations.

This year, 2018, is the sesquicentennial of the Fourteenth Amendment. Congress created, and the states ratified, the Fourteenth Amendment during Reconstruction to protect a group of formerly enslaved people. Although courts interpret laws through cases about particular individuals and not groups of people, the consequences of those individual rulings have major reprecussions for groups of people, especially African-Americans.

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What accounted for the Supreme Court's behavior in this period? Commentators do not really know, but there are several possible factors that contributed.

Some justices, according to a widely held view, simply followed the national mood of white people that were tired of Reconstruction. Some justices were inherently racist. Some adhered to an arid logic, commonly called formalism, that could express shining principles--like the right to fairly selected juries--while easily accepting procedures that destroyed the right.

More fundamentally, many of the justices were unwilling to accept a Constitution that had been turned inside out. Having spent their lifetime under a state-oriented Constitution that reflected a fear of national power, they were unprepared to see the Fourteenth Amendment as a source of vast power for the national government. Justice Miller wrote in the Slaughter-House Cases that interpreting the wartime amendments too broadly "radically change [d] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people."

But even this position makes sense only in the broader context of a national ideology that subordinated African-Americans to white people: every justice, northern and southern, had grown up in a society in which African-Americans mattered less than white people. Chief Justice Taney is rightly condemned for putting his personal racism into the Constitution, but his description of the low esteem in which white people held African-Americans painted an accurate picture of his society. The Supreme Court justices lived in a world in which African-Americans' concerns simply were not particularly important.

In fact, it is possible that asking why the Court did what it did in the late 1870s and 1880s is the wrong question to ask. These decades were business as usual for the Court. It was the burst of egalitarian activity in the decade following the Civil War that was truly exceptional. The Court merely returned to the norm that had prevailed since before the American Revolution.

Perhaps the post-War goals were unrealistic. The task was unprecedented in world history: to go from a bloody war that stripped nine million masters of their dominion over four million slaves to a society in which the two stood on equal footing. Too many misunderstood the problem, thinking it was to make good citizens out of the freed African-Americans. The problem was actually to make law-abiding citizens out of the Confederate rebels.

The following decades would show the difficulty of the task. Inadvertently, perhaps, but no less ironically, the Fourteenth Amendment created to protect African-Americans would be interpreted over the years to restrict African-American citizenship and rights. The Warren Court would use the Fourteenth Amendment again in the mid-20th century to ensure African-American rights and support the modern Civil Rights Movement, often called the Second Reconstruction. But since the Warren Court and since the 1960s, courts have used the Fourteenth Amendment to roll back gains by African-Americans.

Citizens United v. Federal Election Commission led to large political donations by groups supporting legislation that injured the rights of black citizens. In Graham v. Connor, originating from Charlotte, North Carolina, the Supreme Court ruled in a manner that has been used recently to protect law enforcement officers when they injure or even kill African-Americans during arrests. In a 1996 Texas redistricting case, Bush v. Vera, the Fourteenth Amendment was used to challenge and discourage the creation of black majority districts that allowed African-Americans to have the opportunity to elect candidates of their choice. Even today, affirmative action is being challenged on the basis of the Fourteenth Amendment.

The history of the Fourteenth Amendment echoes Dr. Martin Luther King, Jr.'s challenge: "I refuse to accept the idea that the isness' of man's present nature makes him morally incapable of reaching up for the eternal oughtness' that forever confronts him."