JUANA SUMMERS, HOST:
The 14th Amendment has shaped huge parts of American life. It's been invoked in a wide range of U.S. Supreme Court cases on issues ranging from same-sex marriage and interracial marriage to school segregation and access to birth control. Rund Abdelfatah and Ramtin Arablouei, cohosts of NPR's history show Throughline, bring us an installment of their We the People series, the story of how the 14th Amendment has remade America and how America has remade the 14th.
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RUND ABDELFATAH, BYLINE: Even after the Civil War was over, violence continued, especially against recently emancipated Black people. States throughout the South passed what were called Black Codes, laws that severely policed Black people's lives.
RAMTIN ARABLOUEI, BYLINE: At the time, there was nothing in the Constitution that explicitly let the federal government say, hey, state, you can't do that.
KENNETH MACK: It's clear after the Civil War that the only way that African Americans will get basic rights in the former Confederacy is if there is some national constitutional rights that applies everywhere and applies against the actions or the inactions of the states.
ABDELFATAH: This is legal historian Kenneth Mack.
MACK: The assumption behind the Constitution originally was that, you know, states would protect the rights of their citizens. We didn't need the U.S. Constitution to protect citizens from the actions of their own states.
ARABLOUEI: But clearly, something had to change.
ABDELFATAH: After the Civil War, Congress passed three major amendments related to the end of slavery, including the 14th, an amendment created specifically to preserve the rights of Black citizens.
ARABLOUEI: It put new language into the Constitution that suggested if state laws aren't upholding the rights of people, then the federal government can step in.
ABDELFATAH: But in practice, it was the U.S. Supreme Court that had the final say over what the 14th Amendment did and didn't do. In case after case, they start narrowing its power and limiting the ability of the federal government to intervene in state matters.
ARABLOUEI: In the 30 years after the 14th Amendment is ratified, the court shoots down a group of civil rights cases. They shoot down another case saying poll taxes and literacy tests discriminate. They let state laws mandating segregation stand. Time after time, the court essentially says, no, no, actually, you can't use the 14th Amendment to stop discriminatory laws or racist violence.
MACK: By the 20th century, the 14th Amendment had been mostly rendered useless for African Americans.
ARABLOUEI: No big case destroyed the 14th Amendment. Instead, it was more like death by a thousand cuts.
ABDELFATAH: But things started to change in the 1930s. That's when the National Association for the Advancement of Colored People decided to use the 14th Amendment to go on the offense against discrimination. The NAACP brought a number of cases challenging school segregation in the South. In 1954, those cases led to a landmark Supreme Court decision - Brown v. Board of Education.
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UNIDENTIFIED ACTOR: (As Justice Earl Warren) In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Supreme Court Chief Justice Earl Warren ruling in Brown v. Board of Education.
ARABLOUEI: In its 9-0 unanimous decision, the Supreme Court found that laws allowing for segregated schools violated the 14th Amendment's guarantee of equal protection.
MACK: Brown is really a turning point. It really does signal that the 14th Amendment will be an affirmative guarantee of national rights, not just for Black people, but for everybody.
ARABLOUEI: I think a lot of people - to your point right there, I want to dig into a little bit more. I think most people just think about Brown v. Board in terms of school segregation. But what does it mean to really think of it as a 14th Amendment case?
MACK: You know, Brown - it looks like it's just about schools. And then, like, if you read the Supreme Court's language, it seems to be about education. Does segregated education serve Black children poorly? But it quickly becomes very clear that it's about much more than that.
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UNIDENTIFIED ACTOR: (As Justice Earl Warren) State laws permitting or requiring such segregation denies to Negro children the equal protection of the laws guaranteed by the 14th Amendment.
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MACK: That really does mean that a variety of government actions that treat people differently based on race are going to come within the 14th Amendment. And the Supreme Court had historically had not indicated that that was the case at all.
ARABLOUEI: Since then, the Supreme Court has used the 14th Amendment in a number of landmark cases, rulings that stopped states from barring people's rights to interracial marriage, gay marriage, birth control, abortion, privacy, public defense, public education. They've all come down to the 14th Amendment.
ABDELFATAH: In 2023, the Supreme Court ruled against race-conscious college admissions, dealing a blow to supporters of affirmative action. And earlier this year, the court said states don't have the power to keep former President Trump off the ballot.
ARABLOUEI: I can't help but notice a pattern here, though, which is so much of the application of the 14th Amendment depends on who is on that court.
MACK: So the 14th Amendment has always been up for grabs, and it's always depended on, you know, what the political will of the country was with regard to basic equality, which justices were on the court and what they believed.
ARABLOUEI: I have to be honest. For many of us living in the system that we have today, the confusion is that what seems to be clear on paper and in writing can be applied and it can be, like, distorted in very fancy intellectual ways to mean something completely different. And that's a frustration that I think I'm channeling from a lot of the public, I think, that see these things and feel like, oh, well, is there really principles in the Constitution, or are we just dealing with the whims of the political moment in the context that - in which it's being argued?
MACK: Well, you know, I would say that there is some combination of principle and the influence of the political moment. The 14th Amendment, it comes around and around and around, right? This thing that we thought was about the 1860s, but, no, it actually comes back around in 2024. So that's coming again. But the challenge is, well, has it really served its core purpose, which is to give basic rights to African Americans? And that's been a continuing challenge.
SUMMERS: That was Kenneth Mack speaking with Throughline hosts Ramtin Arablouei and Rund Abdelfatah. This episode is part of their series We the People, looking at amendments to the U.S. Constitution. You can hear the whole thing wherever you get your podcasts. Transcript provided by NPR, Copyright NPR.
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