K. Sabeel Rahman-
Part Three: The Substantive Constitution
Reconstruction, Freedom, and Nullification: The Battles over the Fourteenth Amendment
In 1872, newly-emancipated and enfranchised black Republicans won a wave of elections throughout the country, including in Grant Parish, Louisiana. The election was disputed and the conflict quickly escalated into an armed standoff battle between black Republicans, who occupied the courthouse in an effort to certify the elections, and white supremacist Democrats. This standoff culminated in an all-out assault by the former Confederates in 1873, resulting in the Colfax massacre, the slaughter of dozens of African-American defenders by William Cruikshank and his co-conspirators. Under the 1870 and 1871 Enforcement Acts—passed under Congress’ newfound authority under the Fourteenth Amendment—Cruikshank was prosecuted for conspiracy to violate the civil and political rights of African American citizens. But in 1876 the Supreme Court dismissed the convictions. United States v. Cruikshank effectively ended the aspirations for black political power, provided judicial sanction for the wave of white terror and violent suppression of communities of color, and in turn ushered in the collapse from the dream of Reconstruction to the terror of Jim Crow. The Court did so, not only by creatively (and incoherently) reading substantive limits into the Fourteenth Amendment—anticipating future doctrinal developments like state action, incorporation, the defense of states’ rights—but also by weakening Congress’ structural power to pass legislation enforcing the Fourteenth Amendment’s promise under its Section 5 powers.
While often overlooked in the Constitutional Law canon, Cruikshank is the most blatant, potentially most consequential, example of this judicial nullification of the Fourteenth Amendment’s promise. The Thirteenth, Fourteenth, and Fifteenth Amendments are the products of the most radical, transformational period of American political and constitutional history: the post-Civil War attempt to uproot the institution of slavery, and in effect, found an entirely new constitutional republic. For the first time, the Constitution would include an explicit commitment to political, economic, and social inclusion and an explicit override of the racial hierarchy that shaped the first Constitution. But the battles in the early days of the Fourteenth Amendment are indicative of the kinds conflicts that have continued to shape this aspirational vision of constitutional inclusion and membership. Future Fourteenth Amendment battles would echo the patterns of Cruikshank, even if in less blatant forms, as the Court has vacillated between expanding and realizing the Fourteenth Amendment’s inclusive promise by expanding and enforcing substantive rights, and nullifying those rights by weakening both the constitutional and statutory mechanisms through which those rights are made real. This interplay between expansion and nullification of substantive membership rights—of the privileges and immunities of citizenship—provides a powerful thread for understanding Fourteenth Amendment case law and the conventional Constitutional Law course material.
Expanding Rights and Enforcing Inclusion
Much of a conventional Fourteenth Amendment unit in Constitutional Law classes revolves around doctrinal developments that, bit by bit, expand the substantive rights and the scope of political, economic, and social inclusion. Equal Protection developments, like the emergence of strict scrutiny for racial discrimination (see e.g. cases like Loving) and intermediate scrutiny for sex discrimination (e.g. US v. Virginia), and the rise of animus rationales for striking down state actions (e.g. Romer v. Evans) represent incremental expansions of protections for groups. Similarly, substantive Due Process cases such as reproductive rights (Roe v. Wade, Griswold, Casey) also represent expanded protections.
While the doctrinal hooks for these different protections vary—Equal Protection, tiers of scrutiny, fundamental rights under Due Process—these cases address common concerns: the combination of discriminatory treatment, focused around a good or social experience essential to human well-being, and the exacerbation or reification of a troubling power imbalance. Thus in cases like Loving, we see both an immoral discriminatory treatment—on the basis of race—that takes place in context of a fundamental right that the court deems essential to human flourishing—the choice of partner. It is this same combination of discriminatory treatment over a vital social good that arguably animated the idea of “dignity” and the joint Equal Protection and Due Process “hybrid right” of marriage in Obergefell. Similarly, the effort to carve out additional protections under the rubric of “animus” in cases like Romer reflect an effort to protect a persecuted group in the absence of a prior existing judicial hook. Even classic Fourteenth Amendment cases like Brown v. Board are arguably driven by similar convergences of inequities: Brown is conventionally read as an Equal Protection anti-discrimination case, but it is not a coincidence that this discrimination took on greater salience and power in context of the fundamental human and social good of education. Indeed, the Court’s attention to education in the case—calling it the “very foundation of good citizenship”—suggests as much.
This convergence of discrimination, power, and vital human needs and social goods offers a unifying way to think about these inequality-reducing developments. But there remains a confusion about why these cases arise in such divergent and seemingly incoherent list of doctrinal hooks (strict scrutiny vs intermediate scrutiny vs animus levels of review in Equal Protection; substantive Due Process, etc). The messiness of Fourteenth Amendment doctrine, while a reality to be navigated for doctrinal purposes, is perhaps best understood as a reflection of what Kenji Yoshino has called the Court’s “pluralism anxiety”: a Court skeptical of overreach and expansion of rights (against a baseline of negative liberties that helps ratify preexisting power and economic disparities) has tempered these expansions of rights by trying to limit and cabin the potential for multiplying “groups” and “rights” that the Constitution protects.
In addition to specific judicial recognition of new rights, it is important to also see how some key Fourteenth Amendment developments represent a more subtle form of inequality-reducing expansion of legal protections. Cases like Shelley v. Kraemer expand Fourteenth Amendment protections by expanding the definition of what counts as state action, thereby sweeping more private power under the scope of Constitutional scrutiny. And cases like South Carolina v. Katzenbach ratified the expression of Congressional power under Section 5 to implement complex enforcement statutes like the Voting Rights Act and its preclearance regime for protecting the access to the ballot for communities of color. The enforcement of inclusion is thus sometimes a project of judicial action, sometimes of congressional or administrative action—and sometimes all of the above.
Indeed, judicial avoidance can also serve the project of promoting inclusion. While doctrinally the move from inequality-increasing judicial rejection of labor regulations in cases like Lochner v. New York (1905) to judicial deference to socioeconomic regulation under “rational basis review” in cases like Lee Optical and Railway Express Agency is understood as an act of disarming the Fourteenth Amendment, it is important to view these cases as a transference of power to an (inequality-reducing) legislative and administrative arena that in the New Deal era, sought to redress many of these economic disparities. This shift to Congressional power and the rise of rational basis review in Fourteenth Amendment cases is a critical counterpart to the rise of Congressional power described in Part I. Cases like Jones & Laughlin Steel Corp., Darby, Wickard, and Heart of Atlanta Motel, Inc. all reflect judicial expansion of legislative power in order to enable the regulation of economic power (by protecting labor and restricting corporate power and market inequalities) and the addressing of social inequality (by securing the constitutional position of the Civil Rights Act as a valid exercise of the Commerce power). Thus, viewed from a political economic lens, the battle for inclusion may sometimes involve judicial intervention, and other times involve judicial minimalism. (Conversely, as we will see below, the reassertion of inequality and exclusion can arise as much from judicial intervention as from judicial minimalism—which is why debates about “activist courts” often miss the mark of what is really at play in these cases.)
Dismantling Inclusionary Regimes and the Reassertion of Hierarchy
These battles to promote inclusion and dismantle structural patterns of inequality have, however, been met by repeated counterrevolutions aimed at rolling back these expansions. These rollbacks have rarely been as blatant and immediately violent as Cruikshank. Rather, they have more often manifested in subtle nicks and cuts, which over time or hidden from view constrict the judicial, statutory, and administrative protections that cases like Brown, Loving, Shelley, Roe, and others have made possible. This layering of expansion and counterrevolution is another reason why Fourteenth Amendment doctrine rarely moves in a straight line; expansions are met by backlash, which reverses (but rarely explicitly or fully) the reach of the prior cases—and vice versa. It is also worth noting as a student how many of these “rollback” episodes arise under the Rehnquist and Roberts Court. Indeed, Richard Nixon’s exceedingly narrow electoral victory in 1968 yielded four Supreme Court picks, which placed Justices like Rehnquist and Powell on the Court—justices whose conservative skepticism of the constitutional project of dismantling racial and economic inequality is paired with a skillful and subtle doctrinal scalpel that narrowed these earlier gains in hidden ways. In the modern era, Chief Justice John Roberts is an heir to this vision. His Court has often resorted to distinctive doctrinal strategies through which the Court has periodically sought to nullify prior expansions of Fourteenth Amendment protections. I highlight three in particular.
- Narrowing the Scope of Equal Protection
The Court has periodically and cumulatively worked to narrow the scope of Equal Protection through a number of routes. First, in contrast the “anti-caste” reading of Equal Protection which views the nondiscrimination protection as applying particularly to subordinated groups facing historical power imbalances—like African Americans post-Civil War—the Court has gradually shifted in the modern era to a “color-blind” view of Equal Protection where any racial discrimination triggers strict scrutiny, even if the plaintiff is a member of a dominant or powerful group. Thus, affirmative action cases from Bakke to Fisher are indicative of how the Court’s move to a color-blind reading of Equal Protection has complicated efforts to redress historical racial inequities. Students for Fair Admissions is just the latest in a familiar line of argument.
Second, Equal Protection has also been narrowed by the invention of the discriminatory intent requirement in cases like Washington v. Davis. These cases create an added—and high—burden for plaintiffs to show actual intent to discriminate. This effectively makes strict scrutiny cases harder to win. It also means that systemic racial disparities that lack a specific, intentional creator—for example patterns of racial segregation in cities or structural racial disparities in wealth and wages—are near-impossible to litigate in purely constitutional terms. These constraints are in part what has fueled the need to create alternative Equal Protection doctrines like intermediate scrutiny and animus to address social and economic inequalities.
- Narrowing Substantive Due Process Protections
The Court has also similarly worked to undermine various substantive Due Process rights. The key context here is reproductive rights, from Roe to Casey to Whole Women’s Health. While Roe assures the right to choose, subsequent legislative and regulatory actions at the federal and regulatory level have worked to constrict the functional, on-the-ground access to reproductive rights by cutting funding and adding more and more requirements and hurdles to women seeking reproductive rights services. These constraints eventually became severe enough to prompt the ‘undue burden’ standard of Casey. But this in turn produced a new wave of state legislation and regulation to reduce access in practice through burdensome regulations on reproductive health providers, all in the name of protecting women’s health. This in turn prompted a further course correction in Whole Women’s Health. But with the changing composition of the Supreme Court, it seems likely that reproductive rights would be restrained again—not necessarily through a direct overturn of Roe, but rather though judicial sanction for legislative and regulatory restrictions on reproductive rights providers and rights-bearers.
3. Constricting the Fourteenth Amendment at the Front and Back End: State Action and Section 5
A third mode through which the Court has narrowed the equality-enhancing and emancipatory potential of the Fourteenth Amendment has been through restrictions on the “front end” and “back end” of Fourteenth Amendment claims: State Action and the Section 5 power. Thus, while Shelley expanded the definition of state action, thereby sweeping more private (racially discriminatory) action under the scope of Equal Protection, cases like the Civil Rights Cases and Jackson narrowed the scope of what the Court considers as subject to the Fourteenth Amendment. Indeed, just as Cruikshank reflects an early attempt to nullify Fourteenth Amendment protections, the 1883 Civil Rights Cases invented the State Action requirement to strike down Congressional civil rights legislation applying to private actors—the same kinds of nondiscrimination protections that would a century later reappear in the 1964 Civil Rights Act, now having migrated to the post-New Deal Commerce Clause for constitutional license. In the Rehnquist era, cases like Jackson further narrowed modern state action requirements to limit the scope of Fourteenth Amendment protections.
Similarly, both Rehnquist and Roberts have been consistent in narrowing Congressional power to enforce the provisions of the Fourteenth Amendment through legislation and federal enforcement. Thus the creation of the “congruent and proportional” test for Congress’ Section 5 power in cases like Boerne and United States v. Morrison reflected an attempt to impose additional fact-finding on Congress and enabled the Court to, at times arbitrarily, strike down Congressional rights-protecting legislation as allegedly out of step with existing empirical evidence. Similarly, cases like Shelby County v. Holder deployed concepts of federalism and a surprisingly stringent high bar for Congressional fact finding to neuter legislation like the Voting Rights Act, thereby effectively narrowing both the VRA and the Fourteenth Amendment without formally doing so.
K. Sabeel Rahman is an Assistant Professor of Law at Brooklyn Law School and President of Demos, a think-and-do tank dedicated to addressing issues of racial justice, economic inequality, and democracy
 Jim Pope, Why Is There No Socialism in the United States? Law and the Racial Divide in the American Working Class, 1676-1964, 94 Tex. L. Rev. 1555 (2016); Jim Pope, Snubbed Landmark: Why United States v. Cruikshank Belongs at the Heart of the American Constitutional Canon, 49 Harvard C.R.-C.L. L. Rev 385 (2014).
 Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747 (2011).