On the 148th anniversary of the 14th Amendment this weekend, Constitution Daily looks at 10 historic Supreme Court cases about due process and equal protection under the law.
John Marshall Harlan
On July 9, 1868, Louisiana and South Carolina voted to ratify the amendment, after they had rejected it a year earlier. The votes made the 14th Amendment officially part of the Constitution. But in the ensuing years, the Supreme Court was slow to decide how the new (and old) rights guaranteed under the federal constitution applied to the states.
In the early Supreme Court decisions about the 14th Amendment, the Court often ruled in favor of limiting the incorporation of these rights on a state and local level. But starting in the 1920s, the Court embraced the application of due process and equal protection, despite state laws that conflicted with the 14th Amendment.
Here is a look at 10 famous Court decisions that show the progression of the 14th Amendment from Reconstruction to the era of affirmative action.
The Slaughter-House Cases (14 Apr 1873) ―In the Slaughter-House Cases, waste products from slaughterhouses located upstream of New Orleans had caused serious health problems for years by the time Louisiana decided to consolidate the industries into one slaughterhouse located south of the city. Slaughterhouse owners were incensed. They challenged the state’s action citing the 14th Amendment’s Privileges and Immunities Clause as their remedy. The Court said that the Privileges and Immunities Clause only prevented the federal government from abridging privileges and immunities guaranteed in the 14th Amendment and that the clause did not apply to the states. The move gutted the Privilege and Immunities Clause of its effect and kept the door open for Jim Crow laws in the South. To this day the Privileges and Immunities Clause is seldom invoked.
Plessy v. Ferguson (18 May 1896) ―The Louisiana legislature had passed a law requiring black and white residents to ride separate, but equal, train cars. In 1892, Louisiana police arrested Homer Adolph Plessy—who was seven-eighths Caucasian—for taking his seat on a train car reserved for “whites only” because he refused to move to a separate train car reserved for blacks. Plessy argued that the Louisiana statute violated the 13th and 14th Amendments by treating black Americans inferior to whites. Plessy lost in every court in Louisiana before appealing to the Supreme Court in 1896. In a 7-1 decision, the Court held that as long as the facilities were equal, their separation satisfied the 14th Amendment. Justice Harlan authored the lone dissent. Passionately he clarified that the Constitution was color-blind, railing the majority for an opinion which he believed would match Dred Scott in infamy.
Lochner v. New York (17 Apr 1905) ―Lochner, a baker from New York, was convicted of violating the New York Bakeshop Act, which prohibited bakers from working more than 10 hours a day and 60 hours a week. The Supreme Court struck down the Bakeshop Act, however, ruling that it infringed on Lochner’s “right to contract.” The Court extracted this “right” from the Due Process Clause of the 14th Amendment, a move that many believe exceeded judicial authority.
Gitlow v. New York (08 June 1925) ―Prior to 1925, provisions in the Bill of Rights were not always guaranteed on the local level and usually applied only to the federal government. Gitlow illustrated one of the Court’s earliest attempts at incorporation, that is, the process by which provisions in the Bill of Rights has been applied to the states. A socialist named Benjamin Gitlow printed an article advocating the forceful overthrow of government and was arrested pursuant to New York state law. Gitlow argued that the First Amendment guaranteed freedom of speech and the press. On appeal, the Supreme Court expressed that the First Amendment applied to New York through the Due Process Clause of the 14th Amendment. However, the Court ultimately ruled that Gitlow’s speech was not protected under the First Amendment by applying the “clear and present danger” test. The Court’s ruling was the first of many instances of incorporating the Bill of Rights.
Brown v. Board of Education (17 May 1954) ―It is impossible to mention victories of the Civil Rights Movement without pointing to Brown v. Board of Education. Following the Court’s ruling in 1896 of Plessy v. Ferguson, segregation of public schools based solely on race was allowed by states if the facilities were “equal.” Brown overturned that decision. Regardless of the “equality” of facilities, the Court ruled that separate is inherently unequal. Thus public school segregation based on race was found in violation of the 14th Amendment’s Equal Protection Clause.
Mapp v. Ohio (19 Jun 1961) ―What happens when the police obtain evidence from an illegal search or seizure? Before the Court’s decision in Mapp, the evidence could still be collected, but the police would be censured. Police had received a tip that a bombing suspect might be located at Dollree Mapp’s home in suburban Cleveland, Ohio. When police asked to search her home, Mapp refused unless the police produced a warrant. The police used a piece of paper as a fake warrant and gained access to her home illegally. After searching the house without finding the bombing suspect, police discovered sexually explicit materials and arrested Mapp pursuant to state law that prohibited the possession of obscene materials. Mapp was convicted of possessing obscene materials and faced up to seven years in prison before she appealed her case on the argument that she had a First Amendment right to possess the material. The Court held that evidence collected from an unlawful search—as this search obviously had been—from be excluded from trial. Justice Clark’s majority opinion incorporated the Fourth Amendment’s protection of privacy using the Due Process Clause of the 14th Amendment, a very controversial move.
Gideon v. Wainwright (18 Mar 1963) ― Prior to 1962, indigent Americans were not always guaranteed access to legal counsel despite the Sixth Amendment. Gideon, a Florida resident, was charged in Florida state court for breaking and entering into a poolroom with the intent to commit a crime. Due to his poverty, Gideon asked the Florida court to appoint an attorney for him. The court declined to do this and pointed to state law which said that the only time indigent defendants could be appointed an attorney was when charged with a capital offense. Left with no other choice, Gideon represented himself in trial and lost. He filed a petition of habeas corpus to the Florida Supreme Court, arguing that he had a constitutional right to be represented with an attorney, but the Florida Supreme Court did not grant him any relief. A unanimous United States Supreme Court said that state courts are required under the 14th Amendment to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys, guaranteeing the Sixth Amendment’s similar federal guarantees.
Griswold v. Connecticut (07 Jun 1965) ―You know when you’re walking down the street at night with lights in front of you and behind you, and you get that really dark shadow? In the scientific community, that shadow is known as an “umbra.” Flanking that dark shadow on the ground are two or more, half-shadows, not quite as dark, but darker than the well-lit sidewalk around you. Those shadows are known as “penumbras” and were used to explain the most controversial issue of arguably the most controversial Supreme Court case in the 20th century. Estelle Griswold was the director of a Planned Parenthood clinic in Connecticut when she was arrested for violating a state statute that prohibited counseling and prescription of birth control to married couples. The question before the Supreme Court was whether the Constitution protected the right of married couples to privately engage in counseling regarding contraceptive use and procurement. Justice Douglas articulated that although not explicit, the penumbras of the Bill of Rights contained a fundamental “right to privacy” that was protected by the 14th Amendment’s Due Process Clause. Griswold’s “right to privacy” has been applied to many other controversial decisions such as Eisenstadt and Roe v. Wade. It remains at the core of substantive due process debate today.
Loving v. Virginia (12 Jun 1967) ―By 1967, 16 states had still not repealed their anti-miscegenation laws that forbid interracial marriages. Mildred and Richard Loving were residents of one such state, Virginia, who had fallen in love and wanted to get married. Under Virginia’s laws, however, Richard, a white man, could not marry Mildred, a woman of African-American and Native American descent. The two travelled to Washington D.C. where they could be married, but they were arrested state law which prohibited inter-racial marriage. Because their offense was a criminal conviction, after being found guilty, they were given a prison sentence of one year. The trial judge suspended the sentence for 25 years on the condition that the couple leave Virginia. On Appeal, the Supreme Court of Appeals of Virginia ruled that the state had an interest in preserving the “racial integrity” of its constituents and that because the punishment applied equally to both races, the statute did not violate the Equal Protection Clause of the 14th Amendment. The United States Supreme Court in a unanimous decision reversed the Virginia Court’s ruling and held that the Equal Protection Clause required strict scrutiny to apply to all race based classifications. Furthermore, the Court concluded that the law was rooted in invidious racial discrimination, making it impossible to satisfy a compelling government interest. The Loving decision still stands as a milestone in the Civil Rights Movement.
Regents of the University of California v. Bakke (26 Jun 1978)— Allan Bakke, a white man, had been denied access to the University of California Medical School at Davis on two separate occasions. The medical school set aside 16 spots for minority candidates in an attempt to address unfair minority exclusion from medical school. All 16 candidates from both years had test scores lower than Bakke’s but gained admission. Bakke contested that his exclusion from the Medical School was entirely the result of his race. The Supreme Court ruled in a severely fractured plurality that the university’s use of strict racial quotas was unconstitutional and ordered that the medical school admit Bakke, but it also said that race could be used as one of several factors in the admissions process. Justice Lewis F. Powell, Jr., cast the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell said that the rigid use of racial quotas violated the equal protection clause of the 14th Amendment.
In addition to these 10 famous cases, this June’s decision in Obergefell v. Hodges, which recognized a national right to same=sex marriage, will likely join the list of notable 14th Amendment cases. In the Court’s 5-4 decision, Justice Anthony Kennedy held that “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”
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