Subtraction by addition?: The thirteenth and fourteenth amendments

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1501-1550

  Graber, Mark A ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 84878165432     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (333)

1. Cong. Globe, 39th Cong., 1st Sess. 3148 (1866) (statement of Rep. Thaddeus Stevens).
2. Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877, at 255 (1988).
3. Letter from James Grimes to Mrs. Grimes (Apr. 30, 1866), in William Salter, The Life of James W. Grimes: Governor of Iowa, 1854-1858
4. A Senator of the United States, 1859-1869, at 292, 292 (1876).
5. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869, at 14 (1974) (noting [R]adical Republicans knew that their conservative allies were not as committed as they to the racially egalitarian principles of the Republican party, and they were continually frustrated in their attempts to win what they conceived to be true security for the Union).
6. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (2001).
7. Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History (2004) [hereinafter Tsesis, Legal History].
8. The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Alexander Tsesis ed., 2010).
9. Lincoln and Freedom: Slavery, Emancipation, and the Thirteenth Amendment 1, 5 (Harold Holzer & Sara Vaughn Gabbard eds., 2007) (collecting essays to illuminate the manner in which America's greatest president dealt with the greatest challenge of his- and our nation's-time).
10. G. Sidney Buchanan et al., The Quest for Freedom: A Legal History of the Thirteenth Amendment, 13 Hous. L. Rev. 63 (1975).
11. Vorenberg M, supra note 5, at 208.
12. Cong. Globe, 38th Cong., 1st Sess. 521 (1864) (statement of Sen. Charles Sumner).
13. Vorenberg M, supra note 5, at 207-08.
14. Vorenberg M, supra note 5, at 208 (quoting The Liberator, Feb. 10, 1865, at 2).
15. See generally Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459 (2012) (arguing Amendment can be applied outside of chattel slavery)
16. William M. Carter Jr., The Thirteenth Amendment and Pro-Equality Speech, 112 Colum. L. Rev. 1855 (2012) (arguing Amendment empowered Congress to prohibit retaliation against pro-equality speech); Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012) (arguing Amendment supports abortion rights)
17. Darrell A.H. Miller, The Thirteenth Amendment and the Regulation of Custom, 112 Colum. L. Rev. 1811 (2012) (arguing Amendment empowered Congress to identify and prohibit customs related to slavery)
18. Aviam Soifer, Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage, 112 Colum. L. Rev. 1607 (2012) (arguing Thirty-Ninth Congress asserted authority to ban voluntary peonage)
19. Alexander Tsesis, Gender Subordination and the Thirteenth Amendment, 112 Colum. L. Rev. 1641 (2012) [hereinafter Tsesis, Gender Subordination] (arguing Amendment can be used against gender discrimination)
20. Rebecca E. Zietlow, James Ashley's Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012) (discussing Amendment's potential for securing rights of belonging which encompass race, class, and gender).
21. This is not to demean the other fine papers in this Symposium but merely to highlight those that interpret the Thirteenth Amendment broadly.
22. See, e.g., Linda C. McClain, Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel, Inc. v. United States, 71 Md. L. Rev. 83, 129 (2011) (arguing Thirteenth Amendment has broad aim of equal civil liberties)
23. James Gray Pope, What's Different About the Thirteenth Amendment, and Why Does It Matter?, 71 Md. L. Rev. 189, 189-90 (2011) (discussing four unique features of Thirteenth Amendment that give rise to its broad interpretation)
24. Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 Md. L. Rev. 40, 53-56 (2011) (arguing Thirteenth Amendment was intended by framers to have broad enforcement power). My essay in the Maryland Symposium alluded to the possibility that the Fourteenth Amendment might have narrowed the rights protected by the Thirteenth Amendment, but left that claim entirely undeveloped.
25. See generally Mark A. Graber, Foreword: Plus or Minus One: The Thirteenth and Fourteenth Amendments, 71 Md. L. Rev. 12 (2011).
26. See Julie Novkov, The Thirteenth Amendment and the Meaning of Familial Bonds, 71 Md. L. Rev. 203, 226 (2011) (arguing the denial of recognition for the marital and familial relationship is a contemporary badge of servitude or at least of deep inferiority)
27. Pope JG, supra note 15, at 193 (arguing the Thirteenth Amendment affirmatively commands both Congress and the courts to ascertain what rights are necessary to ensure... the ongoing operation of a free labor system).
28. See Ken I. Kersch, Beyond Originalism: Conservative Declarationism and Constitutional Redemption, 71 Md. L. Rev. 229, 229-30 (2011) (noting that many influential modern conservative theorists recount the nation's experience with slavery through... 'Declarationism'... [a] view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence).
29. See Complaint at 3-4, Indep. Am. Party v. Obama, No. 2:10-cv-01477 (D. Nev. Aug. 31, 2010) (asserting Affordable Care Act violated eight different amendments, including Thirteenth Amendment's prohibition of involuntary servitude).
30. See 83 U.S. 36, 76-78 (1873) (confining language to those privileges and immunities which are fundamental and denying provision created rights).
31. 419 U.S. 345, 358-59 (1974) (concluding state not sufficiently connected to public utility actions for purposes of making conduct state action under Fourteenth Amendment)
32. accord DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 194 (1989) (rejecting argument that failure of a state or local government entity or its agents to provide an individual with adequate protection services constitutes a violation of Fourteenth Amendment Due Process Clause)
33. Blum v. Yaretsky, 457 U.S. 991, 1012 (1982) (concluding nursing homes' decisions regarding Medicaid patients did not constitute state action)
34. Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982) (holding private school is not state actor under Fourteenth Amendment).
35. 426 U.S. 229, 248 (1976) (rejecting disparate impact standard for equal protection claims under Fourteenth Amendment)
36. accord McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (explaining to prevail under the Equal Protection Clause [plaintiff] must prove the decisionmakers in his case acted with discriminatory purpose in imposing capital punishment)
37. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977) (holding respondents failed to carry their burden of proving that discriminatory purpose was a motivating factor in zoning decision).
38. See U.S. Const. amend. XIV, § 1
39. see also Lugar v. Edmonson Oil Co., 457 U.S. 922, 936 (1982) (This Court... [has] affirmed the essential dichotomy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, 'however discriminatory or wrongful,' against which the Fourteenth Amendment offers no shield. (quoting Jackson, 419 U.S. at 349))
40. Ex parte Virginia, 100 U.S. 339, 346-47 (1879) (noting that the prohibitions of the Fourteenth Amendment are addressed to the States and discussing what constitutes state action under Amendment).
41. See Kellen Mcclendon, Do Hospitals in Pennsylvania Relieve the Government of Some of Its Burden?, 67 Temp. L. Rev. 517, 556 (1994) (arguing Supreme Court's decision in Jackson severely limited potential ground for finding state action in future cases).
42. See infra notes 118-127 and accompanying text (discussing historical conceptions of link between freedom from bondage and political rights).
43. See, e.g., The Reconstruction Amendments' Debates 107 (Alfred Avins ed., 1967) (speech of Sen. Thomas Hendricks).
44. See, e.g., Xi Wang, Black Suffrage and the Redefinition of American Freedom, 1860-1870, 17 Cardozo L. Rev. 2153, 2195 (1996) (quoting Radical Republican James Ashley saying final version was the best I could get).
45. See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 204 (1997) (citing Thaddeus Stevens's refutation of broad construction of Equal Protection Clause).
46. 16 American Jurisprudence, Constitutional Law § 67 (2d ed. 2009) (explaining that later provision governs because it is the latest expression of the will of the people).
47. See infra notes 49-57 and accompanying text.
48. See infra notes 58-61 and accompanying text.
49. See infra notes 68-81 and accompanying text.
50. See, e.g., Hadley Arkes, Beyond the Constitution 80 (1990) (explaining no man of prudence would urge us to repeal the Bill of Rights).
51. See generally Kathleen Sullivan, What's Wrong with Constitutional Amendments?, in New Federalist Papers: Essays in Defense of the Constitution 61, 61-67 (Alan Brinkley, Nelson W. Polsby & Kathleen M. Sullivan eds., 1997) (arguing unless the ordinary give-and-take of our politics proves incapable of solving something, the Constitution is not the place to fix it and thus amending Constitution is and should be rare).
52. See infra notes 87-96 and accompanying text.
53. See, e.g., Carter W, supra note 14, at 1857 (arguing Amendment should be used to protect right to pro-equality speech because framers well understood the dangers faced by the allies of racial justice and the importance of protecting them if the project of freedom were to succeed)
54. Koppelman A, supra note 14, at 1937-42 (mounting originalist argument that Amendment created right to abortion in light of contemporary awareness of forcible impregnation of slave women).
55. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 542, 550-51 (1896) (holding law providing for separate railway cars based on race did not violate Thirteenth or Fourteenth Amendment)
56. Civil Rights Cases, 109 U.S. 3, 25 (1883) (noting Thirteenth Amendment merely abolishes slavery")
57. United States v. Cruikshank, 92 U.S. 542, 554 (1875) (stating Fourteenth Amendment adds nothing to the rights of one citizen as against another).
58. See infra notes 172-184 and accompanying text (describing congressional statements and federal court opinions relying only on Congress's power under Fourteenth Amendment to pass civil rights legislation).
59. See Cong. Globe, 42d Cong., 2d Sess. 381-84 (1872) (statement of Sen. Charles Sumner) (discussing proposal on what later became Civil Rights Act of 1875).
60. See infra notes 215-226 and accompanying text (tracing decline in political will to achieve racial equality after ratification of Thirteenth Amendment).
61. 83 U.S. (16 Wall.) 36 (1872)
62. see also infra notes 49-59 and accompanying text (exploring Justice Miller's opinion).
63. See 83 U.S. (16 Wall.) at 68-69 (discussing Thirteenth Amendment).
64. See id. at 70 (explaining Fourteenth Amendment was passed because framers thought more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much).
65. See id. at 71 (explaining Fifteenth Amendment gave former slaves, whom the fourteenth amendment [had]... declared to be... citizen[s] of the United States right to vote).
66. Id. at 67.
67. Bruce Ackerman, We the People: Foundations (1991).
68. Id. at 82.
69. See infra notes 219-222 and accompanying text (discussing Republican Party's weakening commitment to civil rights during period that Fourteenth Amendment was passed).
70. See infra notes 175-182 and accompanying text (noting Republicans focused on Fourteenth Amendment at expense of Thirteenth Amendment when considering Civil Rights Act of 1875).
71. See infra notes 97-100 and accompanying text (quoting statements from congressional debates that Thirteenth Amendment broadly protects rights).
72. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67 (1872).
73. U.S. Const. amend XIV, § 1.
74. See id. amend. XIV, §§ 2-4 (reducing political representation and constraining borrowing authority of former slaveowning states).
75. 83 U.S. (16 Wall.) at 69-70 (analyzing text of Thirteenth Amendment).
76. Id. at 80 (explaining Thirteenth, Fourteenth, and Fifteenth Amendments added to privileges and immunities of United States citizens).
77. Id. at 68.
78. Id. at 70.
79. Id. at 71.
80. Id. The Fifteenth Amendment forbids the federal government and the states from discriminating on the ground of race when allocating voting rights. U.S. Const. amend. XV. No person is given the constitutional right to cast a ballot.
81. See Horace Edgar Flack, The Adoption of the Fourteenth Amendment 58-59 (1908) (observing Congressman John Bingham supported Fourteenth Amendment in order to empower Congress to enforce Bill of Rights against states)
82. Kristian D. Whitten, The Fourteenth Amendment: Justice Bradley's Twentieth Century Legacy, 29 Cumb. L. Rev. 143, 156 (1999) (arguing Congress intended to bind states to Bill of Rights through Fourteenth Amendment so as to secure additional rights for former slaves).
83. Cong. Globe, 39th Cong., 1st Sess. 3148 (1866) (statement of Sen. Thaddeus Stevens).
84. U.S. Const. amend. XXI, § 1.
85. 60 U.S. (19 How.) 393 (1856)
86. see Mark A. Graber, Dred Scott and the Problem of Constitutional Evil 58 (2006) (arguing [o]nce one concedes, as antebellum Republicans did, that the Fifth Amendment to the Constitution protected the right to bring personal property into the territories, the historical case for Dred Scott becomes quite persuasive).
87. See Dred Scott, 60 U.S. (19 How.) at 490 (Daniel, J., concurring) (noting that slavery was the only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce).
88. See Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 72-89 (1985) (attributing inclusiveness of birthright citizenship rule, in part, to efforts to overcome Dred Scott).
89. U.S. Const. amend. XIV, § 1.
90. Id. amend. XIV, §§ 2-4.
91. Id. amend. XIV, § 2.
92. See Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (concluding the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment).
93. 88 U.S. (21 Wall.) 162, 174-75 (1874) (rejecting challenge to Missouri law granting only men right to vote and concluding in reference to Section 2 that no such form of words would have been selected to express the idea... [that] suffrage was the absolute right of all citizens").
94. See, e.g., Green v. Shumway, 39 N.Y. 418, 420 (1868) (invalidating state law requiring voters to take oath as contrary to United States and New York constitutions).
95. Minor and Green are discussed at more length below. See infra notes 134, 137 and accompanying text.
96. William W. Van Alstyne, The Fourteenth Amendment, the Right to Vote, and the Understanding of the Thirty-Ninth Congress, 1965 Sup. Ct. Rev. 33, 39 (explaining Justice Harlan's belief that Section 2 allowed states to deny certain voting rights).
97. U.S. Const. amend. XIV, § 3.
98. See Bullock v. Carter, 405 U.S. 134, 149 (1972) (noting state laws that in practice inhibit persons from running for office violate constitutional right of voters to support candidate of their choice).
99. Flack HE, supra note 60, at 132 (explaining Section 3 of Fourteenth Amendment had penal features which restricted most capable candidates in South from holding any office).
100. Article I, Section 2 states, No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
101. U.S. Const. art. I, § 2. Article I, Section 3 states, No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."
102. Id. art. I, § 3.
103. 514 U.S. 779, 793-94 (1995) (interpreting Court's holding in Powell v. McCormack, 395 U.S. 486 (1969)).
104. U.S. Const. amend. XIV, § 4.
105. James M. McPherson, The Illustrated Battle Cry of Freedom: The Civil War Era 140 (2003) (examining debate around slaves as property in wake of Dred Scott decision).
106. Cong. Globe, 38th Cong., 1st Sess. 2941 (1864) (statement of Rep. Fernando Wood); see also Cong. Globe, 38th Cong., 1st Sess., 1483 (1864) (statement of Sen. Lazarus Powell) (asserting uncompensated emancipation of slaves proposed by Thirteenth Amendment would destroy property).
107. Sidney George Fisher, The Trial of the Constitution 306 (1862).
108. See generally, Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy During the Civil War 41-56 (2007) (discussing property rights over slaves as part of larger discussion about Union confiscation of property in wartime).
109. See Flack, supra note 60, at 97-136 (1908) (examining political process behind passage of Sections 2, 3, and 4 of Fourteenth Amendment).
110. Harold M. Hyman, Comment on Robert Kaczorowski's Paper, The Chase Court and Fundamental Rights, 21 N. Ky. L. Rev. 193, 201 (1993).
111. See supra notes 52-58 and accompanying text (discussing Justice Miller's view of Thirteenth Amendment's impact on scope of constitutional rights).
112. See infra notes 121-124 and accompanying text (discussing historical American conceptions of link between slavery and denial of political rights).
113. See infra notes 118-120 and accompanying text (arguing Thirteenth Amendment's elimination of badges and incidents of slavery did not endow slaves with voting rights).
114. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
115. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69 (1872).
116. See Quentin Skinner, Hobbes and Republican Liberty 211 (2008) (explaining Hobbes' vision of freedom is simply to be unhindered from moving in accordance with one's natural powers").
117. 83 U.S. (16 Wall.) at 69.
118. Id. at 70.
119. See Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-75, at 477 (1982) (explaining after constru[ing] the 'pervading purpose' of the Civil War amendments to be the freedom of black people, Miller relegated freedmen, for the effective protection of their new freedom, to precisely those governments... least likely to respect either their rights or their freedom")
120. Jacobus ten Broek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif. L. Rev. 171, 189-94 (1951) (giving examples of narrow construction of Thirteenth Amendment)
121. see also Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 Harv. C.R.-C.L. L. Rev., 1, 20 (1995) (arguing Slaughter-House Cases... constrained the application of the Thirteenth Amendment by narrowly defining involuntary servitude").
122. Broek X.J., supra note 94, at 176.
123. Tsesis A, Legal History, supra note 6, at 38.
124. Cong. Globe, 38th Cong., 1st Sess. 1439 (1864) (statement of Sen. James Harlan).
125. Id. at 2990 (statement of Rep. Charles Jared Ingersoll)
126. see Broek X.J., supra note 94, at 176-81 (giving examples of supporters' statements in the congressional debates in the spring of 1864 and January 1865 [that] explode the traditionally accepted beliefs about the scope and meaning of the Thirteenth Amendment")
127. Cong. Globe, 39th Cong., 1st Sess. 475 (1866) (statement of Sen. Lyman Trumbull).
128. Id. at 1833 (statement of Rep. William Lawrence); see tenBroek, supra note 94, at 190-96 (giving examples of statements in third debate over Thirteenth Amendment).
129. See Pope JG, supra note 15, at 190-92 (noting Thirteenth Amendment guarantees certain fundamental rights, yet text does not mention any such rights)
130. see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 (1968) (explaining Thirteenth Amendment allows Congress to outlaw slavery and secure the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens).
131. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 82 (1872) (arguing [t]he adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power).
132. Louis Lusky, By What Right?: A Commentary on the Supreme Court's Power To Revise the Constitution 201 (1975) (arguing Justice Miller's opinion ignored intent of framers)
133. see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in Judgments: Essays on American Constitutional History 64, 69 (1972) (describing Miller's majority opinion as one of the most tragically wrong opinions ever given by the Court")
134. Thomas B. McAffee, Constitutional Interpretation-The Uses and Limitations of Original Intent, 12 U. Dayton L. Rev. 275, 282 (1986) (noting agreement among modern commentators that Justice Miller's opinion was clearly wrong").
135. See 83 U.S. (16 Wall.) at 97 (Field J., dissenting) (finding [t]he privileges and immunities designated are those which of right belong to the citizens of all free governments")
136. id. at 119 (Bradley, J., dissenting) (arguing [i]t was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens Their very citizenship conferred these privileges, if they did not possess them before.).
137. 130 S. Ct. 3020, 3085 (2010) (Thomas, J., dissenting) (arguing [t]here was no reason for the [Slaughter-House majority] to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the 'privileges and immunities' of federal citizenship to mean either all... rights... or no rights at all).
138. Alexander Tsesis, Interpreting the Thirteenth Amendment, 11 U. Pa. J. Const. L. 1337, 1338 (2009).
139. See Douglas L. Colbert, Affirming the Thirteenth Amendment, 1995 N.Y. Ann. Surv. Am. L. 403, 403 (discussing versatile use of Thirteenth Amendment to protect freedoms and liberties, even more so than that of Fourteenth Amendment)
140. see also Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting) (explaining Thirteenth Amendment suffered from excessively narrow judicial interpretation)
141. Broek X.J, supra note 94, at 172 (arguing prohibition of Thirteenth Amendment is absolute, not restricted like in Fourteenth Amendment, but freedom protected by latter is more comprehensive than Thirteenth Amendment).
142. Hobbes described the "Leviathan as containing those elements that gav[e] life and motion to the whole body." Thomas Hobbes, Leviathan: Parts I and II 1 (A.P. Martinich & Brian Battiste eds., Broadview Press rev. ed. 2011) (1651). So the Leviathan conception of the Thirteenth Amendment encompasses the entire domain of rights and liberties.
143. Broek X.J, supra note 94, at 201.
144. Id. at 203.
145. Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 Fordham L. Rev. 981, 1010-12 (explaining Republicans hoped Thirteenth Amendment would guarantee fundamental rights for slaves and formerly freed slaves, and quoting James Garfield as remarking, What is freedom?... Is it the bare privilege of not being chained? and If this is all, then freedom is a bitter mockery, a cruel delusion).
146. Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull).
147. Azmy B, supra note 111, at 1022 (explaining that opponents of Thirteenth Amendment believed it was absurd promise of equality for freedmen")
148. see also Andrew Johnson, Veto Message, Mar. 27, 1866, available at http://www.presidency.ucsb.edu/ws/index.php?pid=71978&st=veto&st1= (on file with the Columbia Law Review) (justifying veto of civil rights bill because [s]lavery has been abolished, and at present nowhere exists within the jurisdiction of the United States; nor has there been... any attempt to revive it by the people or the States).
149. Cong. Globe, 39th Cong., 1st Sess. 318 (1866) (statement of Sen. Thomas Hendricks).
150. Broek X.J, supra note 94, at 200
151. see also William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 48 (1988) (describing how proponents of Civil Rights Act of 1866 justified its constitutionality by relying on Thirteenth Amendment and how Democrats and President Johnson were skeptical of this theory).
152. Whether Republicans intended to do much more than provide more secure constitutional foundations for the Civil Rights Act of 1866 is the main matter on which students of the Fourteenth Amendment disagree. Compare Berger, supra note 27 (arguing supporters in Congress thought Section 1 proposed relatively modest changes), with Walter F. Murphy, Constitutional Interpretation: The Art of the Historian, Magician, or Statesman?, 87 Yale L.J. 1752 (1978) (concluding Berger's interpretation of Congress's narrow understanding of privileges and immunities is flawed).
153. See supra text accompanying notes 84-99
154. see also Van Alstyne, supra note 72, at 38-60 (explaining different arguments relating to Section 2 of Fourteenth Amendment's power over suffrage).
155. See generally The Reconstruction Amendments' Debates, supra note 25, at 108 (anthologizing debates around Freedmen's Bureau Bill)
156. see also Cong. Globe, 39th Cong., 1st Sess. app. 219 (1866) (statement of Sen. Timothy Howe) (stating that Black Codes, which included denying Blacks right to vote, deny the plainest and most necessary rights of citizenship")
157. id. at 1151 (statement of Rep. Martin Thayer) (arguing that Black Codes are being used to reduce this class of people to the condition of bondmen").
158. See infra notes 125-128 and accompanying text (discussing emphasis placed on voting rights).
159. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1124 (1866) (statement of Rep. Burton Cook) (arguing that Black Codes practically reduce these men to the condition of slavery)
160. id. at 603 (statement of Sen. Henry Wilson) (arguing that Black Codes make slaves of men whom we have made free").
161. Melissa L. Saunders, Equal Protection, Class Legislation, and Colorblindness, 96 Mich. L. Rev. 245, 270 n.105 (1997) (explaining that moderate Republicans in Congress believed in granting Blacks civil rights but few believed Blacks should have been granted political rights such as voting).
162. See Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. Davis L. Rev. 1773, 1799 (2006) (explaining abolitionist theory that slavery was the worst of all robberies in part because it denied slaves political rights).
163. Id. at 1782-83 (alteration in original) (quoting Order of Philadelphia Grand Jury (Sept. 24, 1770), in Bos. Evening-Post, Nov. 5, 1770
164. John Dickinson, Letters from a Farmer in Pennsylvania, to the Inhabitants of the British Colonies 93 (1774)
165. Silas Downer, A Discourse, Delivered in Providence, in the Colony of Rhode-Island, upon the 25th Day of July 1768, at the Dedication of the Tree of Liberty, from the Summer House in the Tree 10 (Providence, John Waterman 1768)
166. Hampden, The Alarm (No. III) 1 (1773)
167. Josiah Quincy, Jun'r., Observations on the Act of Parliament Commonly Called the Boston Port-Bill 69 (Boston, Edes and Gill 1774)
168. David Parker, An Argument in Defence of the Exclusive Right Claimed by the Colonies to Tax Themselves 92 (London, Brotherton and Sewell 1774)).
169. Thomas Jefferson, A Summary View of the Rights of British America, in 1 The Writings of Thomas Jefferson 429, 441 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1892).
170. See Peter Kolchin, American Slavery: 1619-1877, at 91 (1993) (explaining many Southerners thought infringing on their right to own slaves was a violation of their liberty).
171. Cong. Globe, 39th Cong., 1st Sess. 685 (1866) (statement of Sen. Charles Sumner).
172. Eric Foner, supra note 2, at 221 (1988).
173. See Melissa L. Saunders, supra note 120, at 270 (explaining few moderate Republicans believed in granting Blacks same political rights, and even fewer wanted to grant Blacks full social equality).
174. Abraham Lincoln, First Debate with Stephen A. Douglas at Ottawa, Illinois, in 3 The Collected Works of Abraham Lincoln 16 (Roy P. Basler ed., 1953).
175. Abraham Lincoln, Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois, in The Collected Works of Abraham Lincoln, supra note 129, at 299.
176. Cong. Globe, 38th Cong., 2d Sess. 202 (1865) (statement of Rep. John McBride).
177. see also Nelson W. Polsby, supra note 115, at 125-32 (detailing Republican positions on suffrage).
178. See Michael A. Ross, Loyalty Oaths, in 3 Encyclopedia of the American Civil War: A Political, Social, and Military History 1230, 1230 (David S. Heidler & Jeanne T. Heidler eds., 2000) (describing loyalty oaths during Civil War).
179. Id. (listing Missouri, Tennessee, Maryland, and Louisiana as all having rigorous loyalty laws to restrict voting and describing court challenges).
180. 39 N.Y. 418-421 (1868).
181. see also Rison v. Farr, 24 Ark. 161, 171 (1865) ("The right of suffrage in this state... is at least a constitutional right, and ... any law infringing upon that right as vested by the constitution is null and void.").
182. 23 Md. 531, 619 (1865).
183. see also Blair v. Ridgely, 41 Mo. 63-175 (1867) ([N]o person either has or can exercise the elective franchise as a natural right, and he only receives it upon entering the social compact, subject to such qualifications as may be prescribed.).
184. See Harold Melvin Hyman, Era of the Oath: Northern Loyalty Tests During the Civil War and Reconstruction 117 (1954) (explaining [i]n 1865 the Court of Appeals sustained the provision, deciding that suffrage is not a property right and is controllable by the state).
185. 88 U.S. (21 Wall.) 162, 174-75 (1874) (explaining language of Section 2 does not grant universal suffrage).
186. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 668-70 (1966) (declining to qualify principle that voting is fundamental interest by sustaining state poll tax).
187. see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621-627 (1969) (explaining decisions concerning which resident citizens may participate in election of public officials must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections).
188. See U.S. Const. amend. XII (providing that Electors shall name in their ballots the person voted for as President, and in the distinct ballots the person voted for as Vice President).
189. See Mark A. Graber, A Constitutional Conspiracy Unmasked: Why No State Does Not Mean No State, 10 Const. Comment. 87, 90 (1993) (arguing [l]eading participants in the debate over the Fourteenth Amendment treated as common knowledge the proposition that the pre-Civil War Constitution already prohibited federal laws inconsistent with equal protection).
190. Catherine A. MacKinnon, Only Words 71 (1994).
191. Id. at 72.
192. Id. at 86.
193. Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, in Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment 53-59 (1993) (arguing equal citizenship is a principle central to any substantive understanding of the equal protection clause, the foundation on which all antidiscrimination law rests).
194. Id. at 58-59.
195. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 7-9 (1993) (exploring evidence of the late-nineteenth century legal community's obsession with drawing distinctions between legitimate promotions of the public interest and illegitimate efforts to impose special burdens and benefits).
196. See, e.g., Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806-2817 (2011) (applying strict scrutiny to government-imposed restrictions on campaign expenditures).
197. See, e.g., Doe v. Univ. of Mich., 721 F. Supp. 852, 863-64 (E.D. Mich. 1989) (finding university policy prohibiting discriminatory speech was not narrowly tailored to survive strict scrutiny).
198. See Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting) (explaining that the provisions of the Amendment's first section ... were intended to ... make the Bill of Rights, applicable to the states).
199. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 165 (1986) (noting [t]he privileges or immunities clause was the primary vehicle through which [Republicans] intended to force the states to obey the commands of the Bill of Rights).
200. See McDonald v. City of Chicago, 130 S. Ct. 3020-3035 (2010) (explaining incorporated Bill of Rights protections 'are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment'.
201. Quoting Malloy v. Hogan, 378 U.S. 1-10 (1964).
202. See Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (finding First Amendment offers special protection for speech in public places on matters of public concern).
203. Richard H. Sewell, Ballots for Freedom: Antislavery Politics in the United States, 1837-1860, at 284 (1976).
204. Michael Kent Curtis, Free Speech, The People's Darling Privilege: Struggles for Freedom of Expression in American History 364 (2000) [hereinafter Curtis, Free Speech].
205. Quoting 2 The Bill of Rights: A Documentary History 1031 (Bernard Schwartz ed., 1971)).
206. see also id. at 216-372 (discussing free speech during post-Reconstruction era).
207. Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 234-48 (1985) [hereinafter Levy, Legacy].
208. Michael Kent Curtis, Free Speech, supra note 154, at 52-116.
209. Id. at 185.
210. see also State v. Worth, 52 N.C. (7 Jones) 488, 493 (1860) (upholding state law that prohibited publication and circulation of book with intent to disturb the happiness and repose of the country).
211. Michael Kent Curtis, Free Speech, supra note 154, at 182-205 (describing North's demand for legal action against Southern abolitionists).
212. Akhil Reed Amar, Constitutional Rights in a Federal System: Rethinking Incorporation and Reverse Incorporation, in Benchmarks: Great Controversies in the Supreme Court 71, 79 (Terry Eastland ed., 1983).
213. Bolling v. Sharpe, 347 U.S. 497 (1954).
214. Id. at 500 ([R]acial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment.).
215. Referring to Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
216. Id. at 499 (explaining even though Fifth Amendment does not contain equal protection clause like Fourteenth Amendment, the concepts of equal protection and due process ... are not mutually exclusive).
217. See generally Mark A. Graber, Ántebellum Perspectives on Free Speech, 10 Wm. & Mary Bill Rts. J. 779, 802-05 (2002) (explaining that Republicans could, without contradiction, nationalize free speech protections by treating the Reconstruction amendments as incorporating previous constitutional settlements outside of courts).
218. 1 Laurence H. Tribe, American Constitutional Law 902 n.221 (3d ed. 2000).
219. Akhil Reed Amar, The Bill of Rights 243 (1998).
220. Id. at 244.
221. See Thomas M. Keck, Symposium on America's Constitution: A Biography, 59 Syracuse L. Rev. 31, 60 (2008) (arguing constitutional amendment[s] during the progressive era ... deepen[ed] the Constitution's commitment to democracy).
222. Laurence H. Tribe, supra note 164, at 67.
223. Stephen M. Feldman, Free Expression and Democracy in America: A History 291-419 (2008).
224. Bruce Ackerman, supra note 44, at 88.
225. Id. at 88-89.
226. See 383 U.S. 663, 665 (1966) (finding state poll tax unconstitutional because once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause).
227. See supra note 126 and accompanying text (discussing Republican Party members' views on impact of Thirteenth Amendment).
228. See supra text accompanying notes 113-114 (discussing Democrat party members' view of Thirteenth Amendment).
229. See 1 Howard Gillman, Mark A. Graber & Keith E. Whittington, American Constitutionalism: Structures of Government 273-75 (2012) (quoting statements from Senators Trumbull and Sumner to illustrate Republican belief that Thirteenth Amendment guarantee[d] a robust set of rights).
230. Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull).
231. Cong. Globe, 42d Cong., 2d Sess. 728 (1872) (statement of Sen. Charles Sumner) (arguing that Congress's authority to pass Civil Rights Act of 1875 was founded on the thirteenth amendment).
232. Id. at 763 (statement of Sen. Matthew Carpenter).
233. Cong. Globe, 39th Cong., 1st Sess. 1832 (1866) (statement of Rep. William Lawrence).
234. 2 Cong. Rec. 414 (1874) (statement of Rep. William Lawrence).
235. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 984-1086 (1995).
236. Id. at 997.
237. Referring to Senator Sumner's comments, discussed supra at note 177.
238. 24 F. Cas. 337, 339.
239. Chase, Circuit Justice, C.C.D. Md. 1867 (No. 14,247) ("The first clause of the thirteenth amendment to the constitution of the United States interdicts slavery and involuntary servitude, except as a punishment for crime, and establishes freedom as the constitutional right of all persons in the United States.).
240. 83 U.S. (16 Wall.) 36, 126 (1872) (Swayne, J., dissenting).
241. see also id. at 93 (Field, J., dissenting) (explaining [t]he provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us).
242. id. at 122-24 (Bradley, J., dissenting) (analyzing Privileges and Immunities Clause of Fourteenth Amendment).
243. Id. at 89-91 (Field, J., dissenting) (arguing it is clear that [the words 'involuntary servitude'] include something more than slavery in the strict sense of the term).
244. 100 U.S. 303, 308 (1879).
245. The Civil Rights Cases, 109 U.S. 3, 35 (1883) (Harlan, J., dissenting) (arguing when Congress passed Thirteenth Amendment it undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom).
246. Id. at 24 (majority opinion).
247. Id. at 10-11 (explaining [i]ndividual invasion of individual rights is not the subject matter of the [Fourteenth] amendment).
248. See supra notes 99, 176 and accompanying text (recounting Senator Trumbull's statements in various congressional debates).
249. Cong. Globe, 42d Cong., 1st Sess. 575-76 (1871) (statement of Sen. Lyman Trumbull).
250. Cong. Globe, 39th Cong., 1st Sess. 322 (1866) (statement of Sen. Lyman Trumbull).
251. Cong. Globe, 42d Cong., 2d Sess. 3189 (1872) (statement of Sen. Lyman Trumbull).
252. See Mark M. Krug, Lyman Trumbull: Conservative Radical 228-54 (1965) (charting Trumbull's gradual change from support for Johnson's reconstruction scheme to serious doubts about its workability).
253. Horace White, The Life of Lyman Trumbull 296-300 (1913) (describing Trumbull's conservative votes during end of Reconstruction).
254. See supra text accompanying note 192 (quoting Sen. Trumbull's conception of Fourteenth Amendment).
255. See Andrew Johnson, supra note 113 (presenting President Johnson's construction of Thirteenth Amendment in his veto message).
256. See Strauder v. West Virginia, 100 U.S. 303, 310-12 (1879) (holding for Strauder on Fourteenth Amendment grounds).
257. See supra notes 188-190 and accompanying text (discussing Court's consideration of Thirteenth and Fourteenth Amendments in Civil Rights Cases).
258. Martin S. Flaherty, History Lite in Modern American Constitutionalism, 95 Colum. L. Rev. 523-525 (1995).
259. Gregory P. Magarian, Book Review, 90 Mich. L. Rev. 1425-1428 (1992).
260. See generally, Cass R. Sunstein, The Idea of a Useable Past, 95 Colum. L. Rev. 601-603 (1995) (explaining useable past points to the goal of finding elements in history that can be brought fruitfully to bear on current problems).
261. Leonard W. Levy, Emergence of a Free Press, at xvii (1985) [hereinafter Levy, Emergence].
262. See Leonard W. Levy, Legacy, supra note 155, at 236-37 (1960) (discussing Framers' intent with respect to First Amendment and seditious libel).
263. Leonard W. Levy, Emergence, supra note 203, at xviii.
264. E.g., Alexander Tsesis, Gender Subordination, supra note 14.
265. E.g., Rebecca E. Zietlow, supra note 14.
266. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 339 (2d ed. 2008) (explaining litigation steer[s] activists to an institution that is constrained from helping them [and] also ... siphons off crucial resources and talent, and runs the risk of weakening political efforts).
267. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-17 (2d ed. 1986) (discussing concept of countermajoritarian difficulty).
268. Although I also think the history of the Thirteenth Amendment provides grist for perfectly coherent constitutional arguments for regressive interpretations of racial equality and fundamental freedoms.
269. See Cong. Globe, 38th Cong., 1st Sess. 1437-40 (1864) (statement of Sen. James Harlan) (explaining Thirteenth Amendment could cover suppression of freedom of speech, education, and other things).
270. id. at 1479-83 (statement of Sen. Charles Sumner) (explaining Thirteenth Amendment would expand liberty for all people).
271. See Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull) (I take it that any statute which is not equal to all, and which deprives any citizens of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited.).
272. id. at 684 (statement of Sen. Charles Sumner) (arguing abolition of Black Code appropriate to enforce abolition of slavery).
273. See Cong. Globe, 39th Cong., 1st Sess. 322 (1866) (statement of Sen. Lyman Trumbull) (explaining [t]he [Thirteenth] amendment abolishes just as absolutely all provisions of State or local law which make a man a slave as it takes away the power of his former master to control him).
274. See supra notes 84-87 and accompanying text (discussing narrowing of rights previously secured under Thirteenth Amendment after ratification of Fourteenth Amendment).
275. See Michael Les Benedict, supra note 4, at 272-74 (describing public dissatisfaction with unqualified suffrage and Republican response).
276. Eric Foner, supra note 2, at 525 (noting the erosion of the free labor ideology [that accompanied the Depression] made possible a resurgence of overt racism that undermined support for Reconstruction).
277. Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 74 (1999) (explaining [t]o preserve long-familiar privileges in a changing world, to oppose what were perceived as excessive transformational goals of the racial 'radicals,' many white Americans underwent the 'great change').
278. See Philip Klinkner & Rogers Smith, supra note 215, at 85 (noting, by 1874, common sentiment was that the negro [had] got as much as he ought to have).
279. See Eric Foner, supra note 2, at 66-76 (discussing passage of Thirteenth Amendment and debates about appropriate legislation under Amendment).
280. See id. at 251-61 (discussing Fourteenth Amendment debates and impact of upcoming elections on Republican support).
281. See id. at 240 (noting proposals like those of Sumner's to overturn the Johnson governments and commit Congress to black suffrage fell on deaf ears").
282. See id. at 268-69 (noting white public opinion ... was very unanimous against adopting the Amendment).
283. see also Philip Klinkner & Rogers Smith, supra note 215, at 79-80 (noting during ratification campaign for Fourteenth Amendment [m]ore conservative Republicans feared ... that the party was going too far).
284. See Michael Les Benedict, supra note 4, at 272-74 (describing key Republican defeats in elections of 1867 and noting senators at time blamed the suffrage question).
285. See Eric Foner, supra note 2, at 446 (describing passage of Fifteenth Amendment).
286. see also Philip Klinkner & Rogers Smith, supra note 215, at 80-83 (providing overview of Congress dur-ing Grant's presidency).
287. See Philip Klinkner & Rogers Smith, supra note 215, at 81 (noting Republicans' enforcement acts ... were far weaker than they appeared and citing lack of money as reason).
288. See Eric Foner, supra note 2, at 458 (noting Grant's implementation of enforcement acts to arrest those committing racially motivated violence represented dramatic depar-ture and administration had previously launched few initiatives in Southern policy).
289. See id. at 549-50 (explaining [t]he 1874 Southern elections proved as disas-trous for Republicans as those in the North).
290. See Philip Klinkner & Rogers Smith, supra note 215, at 89 (describing withdrawal of troops from South).
291. See supra notes 215-219 and accompanying text (discussing decline in Republican solidarity on civil rights issues after 1866).
292. See Plessy v. Ferguson, 163 U.S. 537-555 (1896) (Harlan, J., dissenting) (arguing that Thirteenth and Fourteenth Amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship).
293. The Civil Rights Cases, 109 U.S. 3-26 (1883) (Harlan, J., dissenting) (expressing disappointment that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted).
294. See supra notes 215-226 and accompanying text (discussing erosion of Republican commitment to, and power to achieve, civil rights aims after 1866).
295. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (concluding in the field of public education, the doctrine of 'separate but equal' has no place).
296. See Loving v. Virginia, 388 U.S. 1, 10 (1967) (explaining [t]he clear and cen-tral purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in holding unconstitutional state scheme to prevent mar-riages between people based on race).
297. McLaughlin v. Florida, 379 U.S. 184-191 (1964) (holding same and explaining courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose-in this case, whether there is an arbitrary or invidious discrimination between those classes covered by [the] cohabitation law and those excluded).
298. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715-724 (1961) (concluding fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action prohibited by Fourteenth Amendment).
299. Shelley v. Kraemer, 334 U.S. 1-23 (1948) (finding judicial enforcement of racial covenants to be state action under Fourteenth Amendment).
300. See S. Rep. No. 89-162, at 32 (1965) ([T]he Congress of the United States has made a clear mandate under the Fourteenth and Fifteenth amendments to the Constitution to enforce these provisions).
301. S. Rep. No. 88-872, at 12-14 (1964) (ne- glecting to discuss Fourteenth Amendment because the instant measure is based on the commerce clause).
302. See, e.g., Duncan v. Louisiana, 391 U.S. 145-149 (1968) (holding the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which ... would come within the Sixth Amendment's guarantee).
303. Roe v. Wade, 410 U.S. 113-164 (1973) (invalidating state criminal abortion statute as violative of Due Process Clause of Fourteenth Amendment).
304. Griswold v. Connecticut, 381 U.S. 479-484 (1965) (finding right of privacy in penumbras of Bill of Rights).
305. See Trimble v. Gordon, 430 U.S. 762-767 (1977) (arguing, while strict scrutiny did not apply, the scrutiny 'is not a toothless one'".
306. Quoting Matthews v. Lucas, 427 U.S. 495-509 (1976).
307. Craig v. Boren, 429 U.S. 190-197 (1976) (holding that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives).
308. Elizabeth Bussiere, Disentitling the Poor: The Warren Court, Welfare Rights, and the American Political Tradition 6 (1997).
309. 379 U.S. 241 (1964).
310. 407 U.S. 163, 164 (1972). The majority opinion in Moose Lodge included Justices Stewart and White, who were also a part of the majority in Heart of Atlanta Motel.
311. See Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7-9 (1969) (arguing Court's 'egalitarian' interventions ... could be ... understood as vindication of a state's duty to protect against certain hazards which are endemic in an unequal society (emphasis omitted)).
312. Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962-966 (1973) (examining support in Rawlsian theory for specific welfare guaranties in a constitution or determinations by the judiciary that some such guaranties are already present in the spacious locutions of, say, section one of the fourteenth amendment).
313. 379 U.S. at 241 (Douglas, J., concurring) (explaining under his construction of Fourteenth Amendment, right to be free of discrimination in public accommodations and that state enforcement of trespass laws would be state action).
314. See 407 U.S. at 190 (Brennan, J., dissenting) (explaining the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement.
315. Quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 202 (1970).
316. See Philip Klinkner & Rogers Smith, supra note 215, at 294-95 (comparing shift in sentiments between 1865 and 1908 to the pattern [of] what ha[d] happened in the United States after each of the other two periods of major racial reforms, the Revolutionary era and the modern World War II-Cold War decades).
317. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1-37 (1973) (finding education is not fundamental right).
318. Dandridge v. Williams, 397 U.S. 471-483 (1970) (holding welfare assistance is not fundamental right).
319. See, e.g., Milliken v. Bradley, 418 U.S. 717-751 (1974) (finding multidistrict remedy
320. See generally Kevin J. McMahon, Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences 8 (2011) (arguing the Nixon-shaped Burger Court largely adopted the general approach-if not the specific positions-[Nixon's] administration advanced on law and order and school desegregation).
321. Philip Klinkner & Rogers Smith, supra note 215, at 5.
322. See generally Desmond S. King & Rogers M. Smith, Still a House Divided: Race and Politics in Obama's America 13 (2011) (arguing [i]n the early twenty-first century, the stark reality is that the United States remains a house divided, on race and by race).
323. Abraham Lincoln, Mr. Lincoln's Reply: First Debate with Stephen A. Douglas at Ottawa, Illinois (Aug. 21, 1858).
324. In 3 The Collected Works of Abraham Lincoln, supra note 129, at 1-18.
325. Abraham Lincoln, Address Delivered at the Dedication of the Cemetery at Gettysburg: Final Text.
326. In 7 The Collected Works of Abraham Lincoln, supra note 129, at 23-23.
327. Martin Luther King, Jr.,1 Have a Dream, Speech Delivered at the Lincoln Memorial (Aug. 28, 1963).
328. In 1 Have a Dream: Writings and Speeches that Changed the World 102-104 (James Melvin Washington ed., 1992).
329. Quoting The Declaration of Independence para. 2 (U.S. 1776)).
330. Gordon Silverstein, Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics 68 (2009).
331. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241-250 (1964) (finding ample power for Congress to pass Title II under Commerce Clause and therefore not consider[ing] the other grounds relied upon).
332. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3030-31 (2010) ("For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of [the Fourteenth] Amendment and not under the Privileges and Immunities Clause.).
333. see also Baker v. Carr, 369 U.S. 186-237 (1962) (ruling malapportionment presented justiciable Equal Protection claims rather than, as previous precedents had held, nonjusticiable Guarantee Clause claims).