The Reconstruction Amendments (& Beyond) Flashcards
Abraham Lincoln’s First Inaugural Address (1861) & Texas v. White (1868)
INAUGURATION
Essentially a legal brief on why the South shouldn’t secede from the Union. By this point, a number of slave states had already declared their secession.
REASON TO SECEDE?
- While Lincoln wanted to ban slavery in the territories, that didn’t necessarily mean he’d ban it in the southern states.
- Lincoln pledged to oppose Dred Scott dicta by issuing passports to free Americans, etc.
RIGHT TO SECEDE?
- States don’t have the sovereignty to secede without federal consent–this isn’t some compact they signed!
- This opens up the door to anarchy.
Lincoln put all this on the table and made clear that he wouldn’t fire the first shot–necessary to not look like a tyrant hurting his own people.
TEXAS V. WHITE
Wrote into case law the points Lincoln had made in his inaugural address.
FACTS
*Texas had tried to secede after the Civil War.
HOLDING
- Texas cannot secede–union is perpetual and insoluble. When it stopped minding its constitutional duties, the Government had a duty to intervene under the Guarantee clause.
- Set in stone Congress’s power to make interim governments (i.e. Reconstruction) in rebellious states.
The Thirteenth Amendment
Abolished slavery (not just of black people) and gave Congress broad enforcement power in the only provision of the Constitution that directly reaches private action.
BUT does “slavery” include badges of slavery, or just the literal act of enslaving?
Southern states definitely tried to get around it with the black codes, which made it illegal not to work (if imprisoned, you could be forced into prison labor); the only available jobs were super low-paying, contracted jobs.
The Civil Rights Act of 1866 & The 14th Amendment
CIVIL RIGHTS ACT
Response to Black Codes
Sweeping protections bill passed prior to the 14th Amendment that grants equality in civil rights (contracts, lawsuit, property rights, etc.)
Applies to private action; has monetary penalties; overturns Dred Scott, making all people born on US soil citizens; gives citizens equal rights; gives citizens equal protection.
14TH AMENDMENT
People worried that the Constitution didn’t clearly grant power to pass this Act and that if the South ever took back Congress, they’d reverse–solution is to permanently add into Constitution. Kind of gutted by Slaughter-House.
SECTION 1
*Directly overturned Dred Scott.
*“No state shall abridge the privileges or immunities . . . nor . . . deprive any person of . . . due process . . . nor deny . . . the equal protection of the law.”
*Equal protection constitutionalizes Civil Rights Act.
*Equal is an adjective; protection is a noun. Protection must be equal–not just that laws are equal. AFFIRMATIVE GUARANTEE!
*Privileges and Immunities includes any set of rights restricted to any degree short of equality.
ETC.
Also got rid of 3/5 and barred secessionists from serving in the government.
RATIFICATION
Southern states had to ratify in order to have their delegations seated, which SGC thinks was fine–peace treaty term, of sorts.
SGC’S APPROACH
- Two commands, both of which lie in Privileges and Immunities–no caste command; protect individual rights demand.
- PRIVILEGES OR IMMUNITIES - Codifies CRA, but leaves out race (hi, women!); applies only to citizens; says that states can’t abridge P & I of state OR federal citizenship (contrary to Slaughter-House). CORFIELD V. CORYELL!!! Look for P&I bounds there, in Declaration, in state Constitutions–life, liberty, property, happiness, safety (ALL subject to restraints government may justly provide).
- DUE PROCESS - all people, not just citizens; is about due process in the traditional sense, but at a state level.
- EQUAL PROTECTION - all people, not just citizens; noun/adjective thing.
The Slaughter-House Cases (1873)
Incredibly narrow construction of 14th Amendment re: state rights and controls (only racism, only federal privileges); basically guts the amendment.
FACTS
*Louisiana law gave all New Orleans slaughterhouse business to one company for public health concerns; competitors argued that this violated both 13 and 14.
HOLDING
No violation–read 14 as only applying to federal, not state, citizenship. SGC says no - broad language of 14 indicates desired protection on a broad scale. HOWEVER, puts up a good fight under Corfield, due to the grave public health concern.
DISSENTS
Choosing job is within POI.
Strauder v. West Virginia (1880)
Broad construction of Equal Protection–accused man has right to not have a biased jury.
MAJORITY
*Equal protection from purposivist lens indicates that obviously jury race is included.
DISSENT
*Service on jury is political right, not under EPC. SO he focuses on jurors, not accused.
SGC
Interesting possibility for due process analysis.
The Civil Rights Cases
Struck down constitutionality of the Civil Rights Act of 1875, saying that the 13th Amendment bans slavery, not badges of slavery. Under surplusage, this argument kind of makes sense–14A wouldn’t have been necessary if 13 banned discrimination. 14, on the other hand, bans discrimination, but it’s not clear if it applies to private actors. BUT what’s the good of banning slavery if slavery by any other name is still legal?
MAJORITY
- 13A can’t eliminate discrimination, even though it applies to private actors.
- 14A can eliminate discrimination, but it doesn’t apply to private actors.
DISSENT (HARLAN)
- 13A allows prohibition of discrimination, since 13A was to abolish BADGES of slavery.
- 14A anything is done by a state actor if you stretch out the causation enough–they implicitly sanction; they provide licenses; they provide protective services; etc.
Civil Rights Act mirrored the eventual Civil Rights Act of 1964, but nearly 100 years earlier. 1964 got through not on the reconstruction amendments alone, but on the commerce clause, which, by 1964, was read much more broadly.
While 15th Amendment explicitly applies to state action, it’s about voting (a political right), not slavery/civil rights.
Marshall held in an old case that the Bill of Rights doesn’t apply to state actions; that precedent stuck around for a while.
United States v. Morrison
Indicates limitations on the 20th-c. interpretation shift that allowed for regulation of private actors under the commerce clause.
FACTS
- VAWA provided federal civil remedy for victims of gendered violence under the commerce clause, since violence against women impacts interstate commerce.
- Rape victim attempts to sue her rapists.
REHNQUIST’S MAJORITY
- Under 14A, no state action, so it doesn’t allow VAWA. Civl Rights Cases indicate that precedent.
- Under Commerce Clause, criminal statutes can’t be taken to impact commerce in a constitutionally relevant way–see Lopez.
SOUTER’S DISSENT
* VAWA was enacted because Congress had tons of data illustrating the effects gendered violence on interstate commerce.
SGC
- Really difficult to reconcile this with Heart of Atlanta.
- There actually was state action, because states weren’t enforcing rape laws.
- This illustrates the court’s bad habit of understanding equal protection to be about non-discriminatory laws, rather than EQUAL PROTECTION. Privileges and Immunities was about non-discriminatory laws.
City of Boerne v. Flores
Narrow reading of Reconstruction Amendments re: protected classes.
FACTS
Congress passes Religious Freedom Restoration act of 1993 as response to Employment Div. Dept. of Human Resources of Oregon v. Smith, where supreme court held that Oregon statute that criminalized use of peyote was constitutional (Native Americans who used it challenged it saying it was unconstitutional). Archbishop sues local authorities for violating his rights under the RFRA when he tried to expand a church.
KENNEDY’S MAJORITY
*RFRA exceeds 14th Amendment, since it defines free exercise rights, rather than enforcing them.
SGC
- This is wrongly decided, since Congress is totally allowed to decide what counts as a suspect class.
- Plus, the peyote case was wrongly decided, since the First Amendment should protect.
Railroad Company v. Brown (1873)
Early case that struck down “separate but equal”; SCOTUS didn’t really follow up until Brown v. Board, though.
FACTS
*Railroad had separate white and black cars; a black woman tried to sit in a white car and was brutally assaulted.
HOLDING
*Just because the segregation “applies equally” (whites can’t sit in black car), it’s still a problem–context of “no discrimination” held blacks to be lesser, so keeping them separate is imposing a value judgment.
Plessy v. Ferguson (1896)
Another cars case that was entirely antithetical to Railroad v. Brown–held that separate but equal is okay.
FACTS
*A 1/8 black man sat in a white car; was arrested.
HOLDING
- Separate but equal is okay. Plus, even a drop of non-white blood makes you non-white.
- No protection for social equality in the Reconstruction Amendments - 14 protected civil rights; 15 protected political rights.
- People want to separate themselves based on race, so that’s just allowing that.
HARLAN’S DISSENT
*Constitution is color-blind. All citizens are equal in the eyes of the law.
AFTERWARD
- Led to Jim Crow as states passed “separate but equal” laws.
- Woodrow Wilson was very racist, requiring segregation of cabinet departments and showing “Birth of a Nation.”
- Truman integrated Armed Forces.
- Declaration of Human Rights outlaws racial discrimination–can a treaty usurp national law?
Brown v. Board of Education I & II (1954)
Ended “separate but equal.”
FACTS
*Based in school segregation.
WARREN’S HOLDING
- We can’t use purposivism here!! Hurtful to minority rights. Let’s look at TODAY.
- Doesn’t really look at the 14th Amendment in depth, but rather modern psychological evidence. Good approach, but it rests desegregation on the grounds of scientific evidence–what if new evidence emerges that says segregation is GOOD for people?
SGC - Warren could have hammered 14A home harder, but he didn’t want to call everything that the South did for the past hundred years unconstitutional.
AFTERWARD…Brown II
- SCOTUS shakes responsibility of monitoring desegregation progress, leaving it as desegregation “with all deliberate speed.”
- District Courts are in charge of monitoring…could this lead to disparate results? Also don’t want to bog down SCOTUS, though.
Loving v. Virginia (1967)
Said that anti-miscegenation laws are unconstitutional.
FACTS
*The Lovings, a white man and black woman, lived in VA but got married in DC, where it was legal. When they returned to VA, the government said, “we’ll either arrest you or you need to leave VA right now.” Lovings sued so they could return to their home.
HOLDING
- 14th Amendment and Substantive Due Process allow!! Not based on original understanding, but on modern interpretation.
- No legitimate purpose that overrides how problematic it is to restrict right to marry.
- It doesn’t matter that the law applies equally to white and black people–it is meant to harm black people and thus violates the equal PROTECTION of the laws.
- Also, depriving Lovings of liberty without due process of law.
- Freedom of marriage is constitutionalized if freedom of contract is constitutional.
Bradwell v. Illinois
SCOTUS used Slaughterhouse precedent to find that privileges and immunities only applies to federal, not state, citizenship.
FACTS
A woman was prevented from taking the IL bar.
SGC - Slaughterhouse was wrongly decided. Plus, this is a violation of 14, which was framed broadly to prevent American castes. Gender could be seen as a caste if it’s used to discriminate from birth with no way to overcome.
Minor v. Happerset
Looked at purposivism to argue, given context, that 15 didn’t grant women, just black men.
14 didn’t grant suffrage, either–Section 1 is about civil rights; section 2 limits to males.
However, the plain text of the language doesn’t limit in this way–it says all citizens are allowed to vote, and there’s no clear argument that women aren’t inherently citizens if, under 14, they’ve been born in the US.
Craig v. Boren (1976)
Gender is subject to intermediate scrutiny–classification must serve important objectives and be substantially related to that objective.
FACTS
- Oklahoma law prohibited sale of low-alcohol beers to men under 21 but allowed females to buy above 18.
- RBG brought to court as litigator because she thought, given MALE discrimination, it would be a good way to set precedent for later female cases.
BRENNAN’S HOLDING
*Fails intermediate scrutiny test–illegitimate.
STEVENS’S CONCURRENCE
*We shouldn’t have multiple standards of review for equal protection–this should be strict, as well. (SGC agrees).
REHNQUIST’S DISSENT
*Rational basis makes sense here; law is constitutional.
SGC
*This opens the door to sociological data, like Brown–can be manipulated.
AFTERWARD
*In Virginia, RBG (then a justice) basically defined intermediate scrutiny as “almost strict”–really hard to beat.
