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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
—U.S. Const., Amend. XIV, Section 1
This July 9th marks the 150th anniversary of the ratification of the Fourteenth Amendment to the United States Constitution. The second of the three Reconstruction amendments, the Fourteenth so radically redefined the relationship between the American people and their governments that it is sometimes called the “Second Bill of Rights.” Through the decisions of the courts and landmark legislation by Congress, the Fourteenth Amendment has formed the basis for many of the civil rights advances of the last 60 years. Even in the shadow of a forthcoming appointment of a new Supreme Court Justice, who may threaten many of those advances, it is worth celebrating the Fourteenth Amendment and recognizing that its benefits were slow to be realized and that its dual promises of equal protection and due process remain only imperfectly fulfilled today.
For the last year, California has taken pride in its role as a center of the resistance to an administration dedicated to rolling back the rights of many Americans. The history of the Fourteenth Amendment reminds us that this was not always so and that California was often forced to become what it has today. The California Legislature did not even consider the ratification of the Fourteenth Amendment in the 1860s and rejected the 15th Amendment, which guaranteed the right to vote to men regardless of race. California was the second-to-last of the states existing in 1968 to have ratified the Fourteenth Amendment, in 1959. Unfortunately, much of California’s role in the development of civil rights law has been as the defendant in Fourteenth Amendment challenges to its laws.
In 1876, as part of a tide of anti-Chinese sentiment in California, San Francisco adopted an ordinance requiring all prisoners to cut their hair within an inch of their scalp—the law was intended to require Chinese prisoners to cut their queues. Ho Ah Kow, a Chinese immigrant, sued the sheriff for damages after his queue was shaved while he was in jail on charges of living in an over-crowded tenement. Ruling on Ho’s claims in 1879, the federal court held the law violated the Fourteenth Amendment because it was passed with the intent of discriminating against Chinese immigrants. Notably, this was the first case to hold that the Fourteenth Amendment applied to resident immigrants as well as citizens. In a sentiment that remains more optimistic than it should need to be, Justice Field wrote in his decision:
“It is certainly something in which a citizen of the United States may feel a generous pride that the government of his country extends protection to all persons within its jurisdiction; and that every blow aimed at any of them, however humble, come from what quarter it may, is ‘caught upon the broad shield of our blessed constitution and our equal laws.’”
Nine years later, San Francisco’s anti-Chinese ordinances were again challenged under the Fourteenth Amendment, this time in the U.S. Supreme Court. In Yick Wo v. Hopkins, the Court addressed a permit requirement for laundries located in wooden buildings. Although the law did not target Chinese laundries by its plain text, in practice the city withheld permits from Chinese while granting them to others. In a unanimous decision, the Court held that discriminatory enforcement of the ordinance was unconstitutional and struck it down on that basis. This principle—that unequal application of the laws is unconstitutional—was largely ignored through the Jim Crow era, but would ultimately be used by the Warren Court in the 1950s to begin to strike down Southern laws restricting the political rights of African Americans.
California’s rocky history with equal protection does not rest solely in the distant past. In 1970, the Fourteenth Amendment was the basis for the California Supreme Court holding that the state’s English literacy requirement to vote was unconstitutional and requiring the state to allow persons literate in any language to vote. Ultimately, the federal Voting Rights Act—an exercise of Congress’s power to enforce the Fourteenth Amendment—would compel California to drop its literacy requirement entirely. Much more recently, in 2010, the due process and equal protection clauses were the basis for the federal district court to strike down Proposition 8 and restore to same-sex couples the right to marry in California.
The Fourteenth Amendment has more application than just to civil rights. Prior to the Fourteenth Amendment, the Bill of Rights only applied to the federal government—the First Amendment, for example, states only that “Congress shall make no law . . . abridging the freedom of speech . . ..” The states, if allowed to do so by their own constitutions, had no such restrictions. Courts, however, have since interpreted most of the rights in the Bill of Rights to be part of the “liberty” which the Fourteenth Amendment guarantees to all persons. Once again, California was at the center of the adoption of this doctrine.
In 1919, California passed a statute banning the flying of red flags as part of its efforts to combat Communism during the red scare. A decade later, Yetta Stromberg, a teacher at a summer camp and member of the Young Communist League, was arrested and convicted of flying a red flag at a summer camp in the San Bernardino mountains. Relying on the First Amendment’s right to free expression and the “opportunity for free political discussion,” the U.S. Supreme Court held that the law was unconstitutional because it was “repugnant to the guaranty of liberty contained in the Fourteenth Amendment.” Although a series of cases in the 1920s had already recognized that the Fourteenth Amendment incorporated First Amendment rights, this California statute was the first state law actually struck down on free expression grounds.
Equal protection, due process, free speech, free exercise of religion, the right to an attorney, the prohibition on cruel and unusual punishment, the right to access contraception, the right to obtain an abortion, the right to privacy, the right to be free from unreasonable searches, and, for better or worse, the right to bear arms—the Fourteenth Amendment guarantees them all. Yet, there are no grand celebrations planned for this July 9, and we should not hold our breath for this President to commemorate the principles of the Fourteenth Amendment By contrast, on December 15, 1941, the United States celebrated the 150th anniversary of the adoption of the Bill of Rights. There were parades, speeches, and a public address by President Roosevelt. Why the difference?
Perhaps because celebrating the Fourteenth Amendment would require America to frankly acknowledge—to own—the necessity of the Civil War, of Reconstruction, and of the adoption of the Reconstruction amendments in the first instance. Even those of us in America’s most progressive states must grapple with an enduring legacy of discrimination. But in the face of a President who would ignore the rights of immigrants, of ethnic minorities, of women, of the LGBTQ community, we cannot afford to hide from the truth that we, as Americans, have often failed to live up to our better principles. So, this July 9th I celebrate our imperfect commitment to “the broad shield of our blessed constitution and our equal laws” and remind myself that protecting that broad shield in the courts and at the ballot box is my patriotic privilege and obligation.
Michael Sall is an attorney in Laguna Beach and the treasurer of the Aliso Niguel Democratic Club. For an excellent history of the fight for civil rights and liberties in California, he recommends Wherever There’s A Fight: How Runaway Slaves, Suffragists, Immigrants, Strikers, and Poets Shaped Civil Liberties in California by Elaine Elinson and Stan Yogi.