Case Study 1: The 14th Amendment as Second Founding

The Question

How did a single constitutional amendment, ratified in 1868 in the chaotic aftermath of a civil war, become the engine of nearly all modern American constitutional rights jurisprudence — and why did it take almost a century after ratification for that engine to do its work?

The Setting: 1865–1868

When the Civil War ended in April 1865, the Union had won militarily, but the political settlement was unwritten. President Abraham Lincoln, who had argued through the war that the Confederate states had never legally seceded (they had simply been in rebellion), was assassinated five days after Appomattox. His successor, Vice President Andrew Johnson — a Tennessee Democrat brought onto the 1864 ticket for unity — proved hostile to the Republican congressional majority and lenient toward the former Confederate states.

Within months, Southern legislatures, restored under Johnson's permissive Reconstruction policies, passed "Black Codes" — laws restricting the movement, employment, and civil rights of newly freed Black Americans. In Mississippi, freedmen could not lease farmland. In South Carolina, they were required to obtain annual contracts from white employers or face vagrancy charges. In Louisiana, curfews applied to Black residents but not to white ones. The Codes were, in many cases, only marginally distinguishable from slavery.

Congressional Republicans were horrified. The 13th Amendment, ratified in December 1865, had abolished slavery, but it had not made the freedmen citizens, had not protected them from state-level rights violations, and had not given them the vote. The Civil War had been fought, three quarters of a million Americans had died, and the Southern states were rebuilding the legal infrastructure of subjugation.

The 39th Congress responded with three pieces of legislation that would reshape the constitutional order: the Civil Rights Act of 1866, the Reconstruction Acts of 1867, and the constitutional amendment that became the 14th.

The Drafting

The 14th Amendment was drafted primarily in the Joint Committee on Reconstruction, with significant authorship from Representative John Bingham of Ohio. Bingham had been a constitutional lawyer before the war; he understood that a constitutional fix had to do four things at once.

It had to secure citizenship. The Supreme Court's 1857 Dred Scott v. Sandford decision had held that Black Americans were not — and could never be — citizens of the United States. The 14th Amendment's Citizenship Clause overruled Dred Scott directly: "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."

It had to protect rights against state violation. The original Bill of Rights had constrained only the federal government. The 14th's Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause were designed to constrain the states.

It had to allocate political power. Section 2 reduced the congressional representation of any state that denied the vote to adult male citizens (the constitutional first acknowledgment that all male citizens, regardless of race, had a claim to the franchise). Section 3 disqualified former Confederate officials from federal office unless Congress voted by two-thirds majority to remove the disability. Section 4 repudiated the Confederate war debt and validated the Union war debt.

It had to be enforceable. Section 5 gave Congress "power to enforce, by appropriate legislation, the provisions of this article." This was the constitutional authorization for the Civil Rights Act of 1866 and for the body of civil rights legislation that would follow.

The amendment passed Congress in June 1866 and was ratified by July 1868 — a process compressed and contested, with several Southern states ratifying only under federal compulsion as a condition for restored congressional representation.

Slaughter-House (1873): The Engine Stalls

Five years after ratification, the Supreme Court came to its first major reading of the 14th Amendment, in The Slaughter-House Cases (1873). The case had nothing to do with race; it was a challenge by white Louisiana butchers to a state-granted slaughterhouse monopoly.

But the Court's 5-4 opinion, written by Justice Samuel Miller, took the occasion to read the Privileges or Immunities Clause extremely narrowly. Miller distinguished between privileges and immunities of national citizenship (a short list — access to federal courts, the right to interstate travel, etc.) and privileges and immunities of state citizenship (everything else, and not protected by the federal 14th). On Miller's reading, the Privileges or Immunities Clause did almost no work.

This was a catastrophic misreading, in the view of many subsequent constitutional scholars. The framers of the 14th Amendment had clearly intended the Privileges or Immunities Clause to incorporate the Bill of Rights against the states and to protect a substantial body of substantive rights. Slaughter-House gutted the clause, and the clause has never recovered. Modern Supreme Court justices on the right and left have, at various times, criticized Slaughter-House. Justice Clarence Thomas in his concurrence in McDonald v. City of Chicago (2010) argued explicitly that the Privileges or Immunities Clause should be revived. The Court has not done so.

Why does this matter? Because when the Privileges or Immunities Clause was effectively neutralized, all the work the 14th Amendment was designed to do had to be funneled through the other clauses — particularly the Due Process Clause and the Equal Protection Clause. That is the clause-doctrinal foundation on which most of modern constitutional law was eventually built. But it was a workaround. It built on a foundation that the framers of the 14th had not designed for primary load-bearing duty.

The Long Wilderness

Between 1873 and 1954, the 14th Amendment operated at a fraction of its drafted potential. Plessy v. Ferguson (1896) read the Equal Protection Clause to permit "separate but equal" public accommodations — a reading that licensed legal racial segregation across the South for nearly six decades. The Civil Rights Cases (1883) read the 14th Amendment to apply only to state discrimination, not to private discrimination, gutting the Civil Rights Act of 1875.

During this period, the 14th Amendment did do some work. It was used (via the Due Process Clause) to strike down state economic regulations during the Lochner era (roughly 1897–1937), in cases like Lochner v. New York (1905), which invalidated a maximum-hours law for bakers. This use of the amendment — to protect economic liberty against state regulation — has been criticized in retrospect by both progressive and conservative constitutional scholars, though for different reasons. Progressives object because the cases struck down economic protections that workers benefited from. Conservatives object on textualist grounds (the clause does not, on its face, support such substantive readings).

But for civil rights — the central purpose of the 14th Amendment — the engine was stalled.

The Restart: Brown and Beyond

Brown v. Board of Education (1954) is often described as the rebirth of the 14th Amendment. A unanimous Court, in an opinion written by Chief Justice Earl Warren, held that "separate educational facilities are inherently unequal" and overruled the educational application of Plessy. The Equal Protection Clause was finally being read to do what its drafters had intended.

In the years that followed, the Court used the 14th Amendment to strike down racial discrimination in voting (Smith v. Allwright, 1944, on white primaries; Harper v. Virginia, 1966, on poll taxes), in housing (Shelley v. Kraemer, 1948, on racially restrictive covenants), in marriage (Loving v. Virginia, 1967, on bans against interracial marriage), and in countless other domains.

The Due Process Clause meanwhile became the vehicle for incorporation — the doctrine that most provisions of the Bill of Rights apply to the states. By 2024, almost every major Bill of Rights provision had been incorporated, including the freedoms of speech, press, assembly, and religion (First Amendment); the protections against unreasonable search and seizure, double jeopardy, and self-incrimination (Fourth and Fifth); the right to counsel, jury trial, and confronting witnesses (Sixth); the prohibition on cruel and unusual punishment (Eighth); and, after McDonald (2010), the right to bear arms (Second).

The Equal Protection Clause has continued to expand. Reed v. Reed (1971) used it to strike down sex discrimination. Frontiero v. Richardson (1973) and Craig v. Boren (1976) developed the doctrine of "intermediate scrutiny" for sex-based classifications. Obergefell v. Hodges (2015) used the clause (along with Due Process) as a basis for the constitutional right of same-sex couples to marry.

What the Case Shows

The 14th Amendment is the most consequential constitutional change since the original ratification, and almost everything modern American civil rights law does is, in some way, an application of it. Without the 14th Amendment:

• The federal government could not enforce civil rights against state discrimination.
• The Bill of Rights would constrain only the federal government, leaving states free to establish religions, ban dissenting speech, conduct warrantless searches, and impose punishments without due process.
• Brown, Loving, Gideon, Miranda, Obergefell, and most other landmark constitutional cases would lack their constitutional foundation.
• The very concept of "constitutional rights" as ordinary Americans understand it — rights enforceable in court against state and local government — would not exist in its current form.

Two lessons follow.

First, constitutional change is sometimes accomplished not by amendment but by reinterpretation. The 14th Amendment's text did not change between 1873 (Slaughter-House) and 1954 (Brown). What changed was how the Court read the text. The Court's role in constitutional development is enormous, and not always for the better. Slaughter-House was a wrong reading by the lights of most modern scholars; it took eighty years for the Court to begin compensating, and Brown did not come from nowhere — it came from decades of deliberate strategic litigation by the NAACP Legal Defense Fund and others.

Second, the 14th Amendment is political infrastructure, not just legal infrastructure. When the country has needed to expand the moral circle — to include Black Americans as full citizens, to include women as full citizens, to include same-sex couples as full citizens — the constitutional vocabulary in which that expansion has been argued is the vocabulary of the 14th Amendment. Equal protection. Due process. Privileges and immunities of citizenship. These phrases have done immense political work — and continue to. The 2023 affirmative-action decisions and the 2022 Dobbs decision, regardless of one's view of the merits, are also 14th Amendment cases. The amendment continues to be where the most contested questions of American constitutional life get fought.

That is what it means to call the 14th Amendment a second founding. It is not rhetorical excess. The constitutional order we live in today — for better and worse — was rebuilt on the foundation of three short sections drafted in a Capitol committee room in the spring of 1866.