So far in this series of posts I’ve discussed the various protections for property in the Constitution and the Bill of Rights, and the Supreme Court’s first important decision touching on property. As I noted in that last post on Barron v. Baltimore, the primary enduring importance of Barron lies in the Court’s holding that the protections found in the Bill of Rights only limit the federal government, and not the states.
This all changed after the Civil War, when the Republican Congress made it a condition for the rebellious states’ reentry into the Union that they assent to certain amendments to the Constitution. These amendments, among other things, abolished slavery, declared that all people born in the United States are citizens (thus overturning the Court’s decision in Dred Scott v. Sanford), and stated that all citizens should equally enjoy the liberties and privileges that citizenship promises. [The full text of these amendments can be found here.] Today we’ll focus on the 14th Amendment, which has been central to the development of constitutional law and practice since its ratification.
Section 1 of the 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
These provisions fundamentally altered the nature of federalism in the United States – especially the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. These clauses each asserted in their own way that the federal government would in fact protect the rights, privileges, and immunities of citizens in the United States – even against infringement from States. That is, these clauses seem to suggest that the federal constitution would henceforth protect individuals’ rights to speech, religion, bearing arms, voting, etc. from abuse by state and local governments.
In a series of important Supreme Court decisions in the decades after Reconstruction, including The Slaughterhouse Case, The Civil Rights Cases, and Plessy v. Ferguson, the reach of these Amendments was significantly limited. In these decisions, the Court held that the Privileges and Immunities Clause was basically null (Slaughterhouse), that segregation was admissible under the Equal Protection Clause so long as the separate facilities were “equal” (Plessy), and that racial discrimination by private individuals was beyond the reach of the 14th Amendment (Civil Rights Cases). These decisions have far-reaching implications though they don’t directly touch on our main interests here at DPP (if you’re interested, see the suggested reading below).
What is important here, without going into undue detail, is that 14th Amendment purported to extend significant federal power over states’ ability to infringe on individuals’ rights (especially the rights of newly freed slaves) – but the Supreme Court interpreted these new amendments in such a way as to mostly negate their immediate impact. Still, the 14th Amendment set the stage for the federalism revolution that the first Reconstruction Congress sought to affect. How this affected the law governing property rights will be the subject my next several posts in this series.
Ackerman, Bruce. 1998. We the People, Volume II: Transformations. Belknap Press of Harvard University Press.
Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.
Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.
Ely, John Hart. 1981. Democracy and Distrust: A Theory of Judicial Review. Harvard University Press.
Foner, Eric. 2002. Reconstruction: America’s Unfinished Revolution, 1863-1877, 3rd edition. Harper Perennial Modern Classics.
Gillman, Howard, Mark A. Graber, and Keith E. Whittington. 2012. American Constitutionalism, Volume I: Structures of Government. Oxford University Press.
McCloskey, Robert G. 1960. The American Supreme Court. University of Chicago Press.
Valelly, Richard M. 2004. The Two Reconstructions: The Struggle for Black Enfranchisement. University of Chicago Press.