But those amendments were not in themselves sufficient to protect the rights of freemen, and in the face of continuing intransigence in the South, a northern, Republican-controlled Congress embarked on an attempt to “reconstruct” the states of the former Confederacy and, in the process, to ensure that the civil rights of newly freed slaves were not violated. The so-called era of Reconstruction had run its course by the mid-1870s, and as the commitment of white Americans to equal rights for all waned, many of the post- Civil War statutes aimed at ensuring equal protection under the law came under attack. The ruling in Plessy v. Ferguson was the culmination of that unfortunate trend.
During that same period, Congress and the courts were confronted with additional challenges with respect to civil rights. With the readmission of all the states of the former Confederacy, the guarantees of equal rights to freed slaves provided by the Fourteenth and Fifteenth Amendments were gradually weakened. Perhaps reflecting some fatigue from the political and sectional battles of the Reconstruction era, the rulings of the Supreme Court during the last three decades of the nineteenth century tended to weaken America’s commitment to the Fourteenth Amendment’s promise of equal protection under the law.
In the Slaughter-House Cases (1873), United States v. Cruikshank (1876), the Civil Rights Cases (1883), and finally in Plessy v. Ferguson (1896), the court steadily narrowed the extent to which the provisions of the Fourteenth Amendment could be used to prevent state governments or private companies and institutions from infringing on the rights of American citizens.
The decision in Plessy turned on the constitutionality of an 1890 Louisiana statute requiring separate railway cars for black passengers and white passengers. In 1892 Homer Plessy, a light-skinned African American working in concert with a group of African American professionals in New Orleans who wished to test the constitutionality of the law, boarded a “whites only” car and was promptly arrested. After the case had worked its way through the lower federal courts, which consistently ruled against Plessy, the Supreme Court agreed to hear the case in 1896.
In a seven-to-one decision, with one justice not participating, the Court rejected Plessy’s contention that enforcing separation of the races in the railway cars was a violation of the “equal protection” clause of the Fourteenth Amendment. Justice Henry Billings Brown, who wrote the majority opinion, maintained that the “enforced separation of the two races” did not necessarily “stamp the colored race with a badge of inferiority.” Then, revealing the full extent of the racial assumptions underlying the decision, he wrote:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.
Justice John Marshall Harlan, the only justice to side with Plessy, wrote an impassioned dissent. He scornfully rejected the argument supporting “separate but equal” facilities for the two races, and then asserted that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”
Harlan’s powerful dissent notwithstanding, the decision in Plessy would put into place the doctrine of “separate but equal,” one that would serve to justify both state-sponsored and privately imposed segregation across a wide range of areas, from restaurants to public accommodations to public schools.
SCHENCK V. UNITED STATES (1919) AND GITLOW V. NEW YORK (1925). These two cases each deal with the free speech guarantees of the First Amendment, but the Gitlow case raised an additional question that has had important ramifications for constitutional interpretation up to the present day.
During the presidential administration of Woodrow Wilson, in the aftermath of World War I, the Supreme Court made one of its most important rulings dealing with issues of national security and free speech. In Schenck v. United States, the court upheld the Espionage Act of 1917, a congressional statute aimed at punishing anyone engaged in actions that might “be used to the injury” of the United States war effort. In that case, the Court ruled that the actions of Charles Schenck, a member of the Socialist Party who had distributed pamphlets opposing the draft during World War I, had produced such injury and therefore were not protected by the free speech guarantees of the First Amendment. In that decision Justice Oliver Wendell Holmes, Jr., noted that the right of free speech is not an absolute one, using the following example: “Free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic.” Holmes then offered a means of resolving the potential conflict between First Amendment guarantees of free speech and the need for public order: the question to be determined, Holmes reasoned, was whether the actions or words being employed “might create a clear and present danger” to cause “substantive evils.” In general, the courts have tended to interpret the meaning of “clear and present danger” in a way that gives government greater powers to restrict free speech during times of war.
The case of Gitlow v. New York involved yet another Socialist, Benjamin Gitlow, accused of distributing subversive literature, and as in the Schenck case, the court upheld Gitlow’s conviction. Indeed, the court modified the “clear and present danger” doctrine laid down by Justice Holmes and substituted a much looser standard—that of “dangerous tendency.”
Perhaps more important in the long run, the justices’ opinion in the Gitlow case also asserted that the free speech and free press protections offered by the First Amendment not only applied to actions taken by the federal government but also to those taken by state governments. Justice Edward Sanford, writing for the majority, asserted, “Freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” This interpretation of the clause in the Fourteenth Amendment guaranteeing “equal protection of the laws” would mark the beginning of the “incorporation” of many of the guarantees of the Bill of Rights into the Fourteenth Amendment, thus preventing the states from acting in ways contrary to those guarantees. In subsequent decades most of the amendments contained in the Bill of Rights—with the exceptions of the Second Amendment’s guarantee of the right to bear arms, the Fifth Amendment’s guarantee of a defendant’s right to have his or her case heard by a grand jury, and the Seventh Amendment’s guarantee of a right to a jury trial in civil cases—have come under the protections of the “incorporation doctrine,” meaning that state governments are bound by the same constitutional provisions in those cases as the federal government.
BROWN V. BOARD OF EDUCATION OF TOPEKA (1954). The Supreme Court’s unanimous decision to overturn the nearly sixty-year-old “separate but equal” doctrine laid down in Plessy v. Ferguson was one of the most momentous decisions ever made by the Supreme Court and indeed one of the most far-reaching steps toward social justice taken by any branch of the federal government.
The case had its origins in a 1951 class-action suit filed by thirteen parents on behalf of their twenty children against the Topeka, Kansas, board of education. The parents, all of whom lived in integrated neighborhoods, attempted to enroll their children in the nearest neighborhood school but were prevented from doing so because those schools were designated for whites only. When the United States District Court for the District of Kansas heard the case, it ruled in favor of the school district, asserting that the quality of the facilities, curriculum, and teachers in the white and African American schools in the district were equal and citing Plessy v. Ferguson as precedent
for upholding the doctrine of “separate but equal.”
The Supreme Court agreed to hear an appeal of the Brown case in 1953, along with four similar cases from South Carolina, Virginia, Delaware, and Washington, D.C., and in May 1954 it handed down its ruling. The newly appointed chief justice, former California governor Earl Warren, was well aware of the political and social implications of the case. He not only wrote the opinion in the case but, by careful political and diplomatic maneuvering behind the scenes, persuaded even those justices who may have been reluctant to overturn the long-standing precedent of Plessy v. Ferguson to join in a unanimous ruling.
Warren’s opinion was, by the standard of many twenty-first-century court opinions, relatively brief, but it was forcefully argued. The central conclusion in Warren’s opinion, which went directly against the earlier ruling in Plessy, was that even if the quality of the facilities and teachers in the segregated schools was equal, the very fact of segregation was harmful to the African American students and therefore unconstitutional under the equal protection clause of the Fourteenth Amendment. Warren did not support his conclusion solely on the intent of those members of Congress who had framed the Fourteenth Amendment, for he knew that opinions among congressmen on the meaning and scope of the amendment were divided and inconclusive. Instead, he acknowledged that “we cannot turn the clock back to 1868, when the amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” Rather, he argued, the court “must consider public education in the light of its full development and its present place in American life.” Emphasizing the central importance of education in promoting citizenship and as a road to economic and social success, he concluded that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” and he asserted that education “must be made available to all on equal terms.” And then, relying on twentieth-century psychological and sociological studies informed by new knowledge since the Plessy decision was rendered, Warren concluded that in the field of public education the doctrine of “ ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
The Brown decision was the beginning, but hardly the end, of the movement not only to dismantle segregation but also to ensure equal opportunity to minorities in all aspects of American life. The Brown decision could not be implemented by judicial edict alone, and many southern states resisted integrating their schools for many years thereafter. But over the course of the next two decades, the system of state-sponsored segregation of the schools was dismantled, and the move to desegregate the schools gave impetus to a civil rights movement in which Americans, black and white, mobilized to end segregation in all aspects of public life.
The decision in Brown v. Board of Education had a few important judicial antecedents, and students of the constitutional debates over equal rights for African Americans might also wish to consult the cases of Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950). Perhaps more important, the constitutional discussion about the meaning of the promise of equality proclaimed in both the Declaration of Independence and the Fourteenth Amendment is still going on today. The Supreme Court, in recent rulings on so-called affirmative action cases (see, for example, Regents of the University of California v. Bakke, 1978 and Grutter v. Bollinger, 2003), is still trying to find the proper balance between a legal system founded on the principle of equal opportunity and one that prescribes a set of results based on racial categories.
GIDEON V. WAINWRIGHT (1963) AND MIRANDA V. ARIZONA (1966). The civil rights movement of the 1960s, although aimed primarily at securing equal treatment for African Americans, had other ramifications in the legal realm. The emergence of legal aid associations, aimed at securing full legal rights for accused criminals, led to a series of Supreme Court rulings that would, in the first instance, grant additional rights to individuals accused of crimes and, as a consequence, require that law-enforcement officers use greater care in the apprehension, arrest, and questioning of individuals suspected of committing a crime.
The landmark case in this legal revolution was Gideon v. Wainwright. The accused in the case, Clarence Earl Gideon, was arrested in Panama City, Florida, on suspicion of having broken into a poolroom, smashed a soda machine, and stolen a small amount of money from a cash register. Although the courts had previously ruled that defendants charged with a capital crime (most often in cases involving the death penalty) were entitled to legal counsel, since this was a case of simple petty larceny the state of Florida ruled that the indigent Gideon was not entitled to court-appointed legal counsel. He attempted to defend himself against the charges, but the jury found him guilty and sentenced him to five years in prison.
Acting on his own behalf, Gideon sought to appeal the decision, claiming that his Sixth Amendment right to a fair trial had been violated by his inability to have competent legal counsel represent him. Against great odds, he was successful in persuading the Supreme Court to hear his case, appointing Abe Fortas, a future Supreme Court justice himself, to defend him. In a unanimous decision, the court ruled that the right to legal counsel was guaranteed by the Sixth Amendment and was “fundamental and essential to a fair trial.” Citing the due process clause of the Fourteenth Amendment, the Court, again using the incorporation doctrine, ruled that the constitutional guarantees of the Sixth Amendment should be applied to the actions of the state governments as well as the federal government.
The Miranda decision extended the legal rights of accused criminals, but did so in a manner that aroused greater controversy. In that case, Ernesto Miranda was arrested for robbery and later confessed to raping an eighteen-year-old woman a few days before committing the robbery. Miranda’s confession, together with a positive identification by the victim, led to his conviction. In a five-to-four ruling, Chief Justice Earl Warren ruled that Miranda’s Fifth Amendment rights against self-incrimination had been violated by harsh interrogation techniques and that his Sixth Amendment rights had been violated because he did not have a lawyer present at the interrogation. In Warren’s words, a suspect brought in for questioning in connection with a possible crime “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
The Miranda decision was very controversial at the time that it was handed down, and some continue to complain that it has placed unnecessary constraints on law-enforcement officers in the performance of their duties. However, subsequent Supreme Court decisions have further refined and defined the ways in which an accused’s “Miranda rights” might be interpreted, and as police departments have incorporated the principles of the Miranda decision into their training manuals, most constitutional scholars and law-enforcement officials have concluded that the Miranda decision was on balance an important step forward in America’s criminal justice system.
ROE V. WADE (1973) IS ONE OF THE most controversial cases ever heard by the Supreme Court. The majority opinion, written by Justice Harry Blackmun, held that a woman has a right to terminate her pregnancy—in common parlance, to have an abortion—at any time up until the fetus became “viable,” defined as the point at which the fetus has the potential “to live outside the mother’s womb.” The Court, which supported the majority opinion by a seven-to-two margin, based its ruling on a constitutional “right of privacy.” Though nowhere stated in the body of the Constitution or its amendments, privacy was, in the view of the justices, a fundamental right protected by the “due process” clause of the Fourteenth Amendment. Although not all the justices agreed on the matter, at least some justices, and many jurists and scholars subsequently, have believed that the right of privacy is one of the unenumerated rights anticipated in the Ninth Amendment.
The ruling h
ad the effect of invalidating many state laws restricting the right to abortion and setting off a storm of protest, which has not abated even today. Like so many landmark Supreme Court cases, Roe v. Wade involved “rights in conflict,” the dilemma presented when one set of rights conflicts with another: in this case the freedom of a woman to make her own decisions about whether to terminate a pregnancy and the belief held by many Americans that the fetus—an unborn living being—has a fundamental “right to life.” Almost all the Supreme Court cases involving competing sets of rights have the potential to excite controversy, but Roe v. Wade moved into particularly volatile territory because the issues involved were not merely legal but also moral and religious, and because the opinions of Americans on those issues were—and continue to be—deeply divided.
In the years since the Roe decision was handed down, the Supreme Court has heard several other cases involving the conditions under which state and federal governments might restrict abortions. The effect of these decisions, which include Planned Parenthood v. Casey (1992), Stenberg v. Carhart (2000), and Gonzales v. Carhart (2007), has been to give governmental entities slightly greater ability to limit the circumstances under which abortions might be performed. For example, in Planned Parenthood v. Casey the Court ruled that the state of Pennsylvania might require that doctors provide women contemplating an abortion with information about possible health risks and complications (the doctrine of “informed consent”); that minors seeking an abortion receive consent from a parent or guardian (the doctrine of “parental consent”); and that the state impose a twenty-four-hour waiting period before a woman could proceed with her requested abortion. Given the unsettled state of public opinion on the question of whether and under what circumstances women should be allowed to terminate their pregnancy, it is likely that the Supreme Court will be confronted with further contestation on these issues in the future.
Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence Page 19
