A Conversation on the Constitution: The Fourteenth Amendment
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A Conversation on the Constitution: The Fourteenth Amendment

September 11, 2019

FS: This video is
a project of the Annenberg Foundation
Trust at Sunnylands. On September 17, 1787, delegates
to the Constitutional Convention signed our nation’s
founding document in Philadelphia. To
better understand the Constitution, 48 students
from 12 Pennsylvania and California high schools
traveled to the Supreme Court of the United
States in December, 2006. They discussed the
origins, nature, and importance of the 14th
Amendment with Associate Justice of the Supreme
Court, Ruth Bader Ginsburg. ♪ MUSIC ♪ STUDENT: My question is, what does
equal protection under the law mean? STUDENT: What does
due process mean? STUDENT: Why do we have
the 14th Amendment, and what would we do…what would
we lose if we didn’t have it? JUSTICE RUTH BADER GINSBURG:
The Equal Protection Clause is one of the two clauses in
the 14th Amendment that’s best known,
and it provides that, “no state shall deny to any person
the equal protection of the laws.” And the Due Process clause,
which immediately precedes the Equal Protection clause
reads, “Nor shall any state deprive any person of life,
liberty, or property without due process of law.” Now,
why do we have that 14th Amendment guaranteeing
due process and equal protection? Did the
original Constitution contain either
provision? Indeed, there was a due
process clause in the 5th Amendment, reading…just
like the one in the 14th Amendment, “nor shall any
person…be deprived of life, liberty, or property
without due process of law.” That’s in the
5th Amendment. But, there was no counterpart
to the Equal Protection Clause in the original
Constitution. And…isn’t that strange,
when the instrument, the document that
started it all, before the Constitution,
was the Declaration of Independence in
1776 that said, “We hold these truths
to be self-evident, that all men are created
equal.” So it was this dawning premise at the
birth of our nation, that all persons are
created equal. And yet, there’s not a word
about equality in the Constitution that’s sent
out for ratification in 1787. Now, why do you
suppose that is so? Why don’t we have an
equality guarantee in the Constitution
until 1868? Yes? STUDENT: Wasn’t it true that
many state constitutions already contained provisions
for equality of all citizens? JUSTICE GINSBURG:
Some states may have. Certainly all states
did not. Yes? STUDENT: Justice Ginsburg;
didn’t… wasn’t there argument over the legality of slavery
in the new nation that was to be created, and didn’t
the framers not want to address the issue,
so they left the issue of equality up to
states as the previous? JUSTICE GINSBURG: That is
exactly right. The word that is never used in the
Constitution is slavery, but it was the
burning problem. And…the original Constitution has
certain imperfections. One of them is, in the
very first article, the slave trade was
allowed to continue until the year 1808. Another,
that perhaps is not as well-known, but should
be, is the Fugitive Slave clause that was in Article
4 of the Constitution. It doesn’t use the
word slavery, but it says, in effect,
that if any person held in service in one state
escapes into another, say, a slave escapes
from Virginia into Massachusetts, then the
state of Massachusetts would be bound to deliver
up that party to the person who claims to be
the owner. So our original Constitution doesn’t have
any equality provision in it, because some humans
were held in bondage by other humans. Our
Constitution didn’t get perfected in that regard
until after the Civil War. And so why do we have
the 14th Amendment? To introduce…well, two
reasons. The original Bill of Rights operated against
the Federal government only, not against the
states. It says in the First Amendment, Congress
shall pass no law. The 14th Amendment is
operative against the states of the
United States, and it expresses
this notion that Thomas Jefferson expressed
earlier in the…in the Declaration of
Independence, this equality norm. So we
have the 14th Amendment to…tell the states of
the United States that they, in addition to
the federal government, must observe due
process of law, and accord all people the
equal protection of the laws. What do those
provisions mean? Well, I think that the easiest
way to capture what the Equal… The essence of
equal protection is the word or words “human
dignity.” It was that all humans are
entitled to respect, and no person, because
of who he or she is, because of his or
her birth status, is any less human and
entitled to rights than any other person. That’s
equal protection. Due process of law has two
sides to it. One is “due”, meaning fair
process of the law, that anyone who encounters
the authority of government, or is involved
in a controversy with another individual, is
entitled to a fair process with notice, and a
court that will judge impartially. That was
one side of it. That was procedure. The other
part has a…substantive component. For example,
suppose a state passes a law, as a state did around
the time of World War I, when there was much
anti-German sentiment. And the law is that the German
language shall not be taught in any school,
public or private. And parents whose ancestry is
German would like their children to learn in
school that language. The state law says that’s
impermissible. Well suppose you were such a
parent. What would you do? We could make it any
language. Suppose the state of Pennsylvania
should decide it doesn’t want Chinese taught in
its schools. And you as a parent really wanted your
child to learn Chinese. Would you be helpless?
What might you do? Yes? STUDENT: You could take the
issue to the federal government and ask them to address what
the states had decided. JUSTICE GINSBURG: Well, the
federal government, if you mean by that a member of
Congress, or the President, might say, we are part of
a federal union. This is a federal union in
the United States, and there are states
that pass laws about the education of children,
and there’s the federal government,
and the federal government…shouldn’t
interfere. The President might tell you;
well I can’t do it, because only Congress
can pass laws. And the Congress might say, we
respect states’ rights. So if you can’t go to the
President, and you can’t go to the Congress in our system,
where would you go? Yes? STUDENT: The courts? JUSTICE GINSBURG: Exactly.
And that’s what the parents did in that old
case. They came to the courts and they said, we
are being denied a choice, a choice that government
ought to let us make. We should be free to make it,
and we’re willing to pay for the
instruction. And so, they looked at the
Constitution and couldn’t find anything that
said precisely that, that they had the right to
make a reasonable choice about the education
of their child. So, they decided that perhaps
the due process clause had a meaning in addition
to fair procedure, that there were certain
fundamental rights the government had to respect,
choices that people should be free to make for
themselves. And that’s what they used in the due
process clause. And the Court held, in the early
part of the 20th century, that the state couldn’t
deny parents that choice. There was a similar case
involving one state that banned attendance of
children at parochial schools. And that was
similarly challenged as a violation of the
parent’s right to choose, make a reasonable choice, about
the education of the child. STUDENT: My question was, to whom
does the 14th Amendment now apply? JUSTICE GINSBURG: Whose
basic rights did the 14th Amendment originally
seek to protect? The basic rights that the 14th
Amendment originally sought to protect were the
rights of the newly freed slaves. The overriding
purpose of the 14th Amendment was to
say…people have inalienable rights,
regardless of their race, color, creed, religion.
But race was the driving force of three
Amendments: the 13th, the 14th, and the 15th.
And so the Supreme Court early on said the 14th
Amendment was so obviously intended to grant equality
to the former slaves that we don’t think it really
applies in any other situation. But, over the
course of now a century and a half, almost, the
Equal Protection Clause had…has expanded. It
has grown from the core purpose, to protect the
newly-freed…slaves, to encompassing more and
more people. I like to think of it this way: Who
can tell me the opening, the very opening words of the
Constitution of the United States? STUDENT: “We the people…in order
to form a more perfect union.” JUSTICE GINSBURG: Exactly.
Those two clauses, “we the people of
the United States, in order to…in order
to form a more perfect union.” Who were “we the
people”? I think there was an answer to that earlier.
We the people were…white men, but even that was
too large a category. It, we the people were white,
property-owning males. So the original we the people
was a rather elite group. The genius of the US
Constitution is that over the years, we have formed
a more perfect union by encompassing more
and more people, people who were
once left out. Slaves, Native Americans, and…what
other group? Yes? STUDENT: Women? JUSTICE GINSBURG: Yes. When
did women, by the way, get to be part of this
political community that was established by the
Constitution? Let’s take someone who hasn’t
responded yet. Yes. STUDENT: 1920? JUSTICE GINSBURG: Yes. At last, in
1920, women achieved the vote. So, whose rights did the
14th Amendment originally seek to protect? It sought
to protect the rights of African Americans to be
treated as persons of equal status and dignity.
Who does it protect now? It protects, as
its words suggest, all persons. It
doesn’t say citizens, it says all persons. And,
how about geography? The 14th Amendment is directed
to state governments, but it has been read more
expansively. For example, my residence, which is in
the District of Columbia, is not a state, and yet
I have the same equal protection and due process
rights as someone from Pennsylvania or from
California. It…these clauses apply to all
of the United States, including its territories,
including the District of Columbia. So now, the
“we…the people of the United States” is a
much more embracive concept than it was
in the beginning. STUDENT: Since the 14th
Amendment uses the word “male” in it, how did it
come to be interpreted to grant equal
protection to women? JUSTICE GINSBURG: And we
might add to that, not only does the second section of
the 14th Amendment use the word “male,” and it uses
that word three times, and so women were
nervous that they weren’t included. But the key
provision that I read to you doesn’t use
the word “male, it uses the word
“person.” So let’s straighten out what the
Equal Protection Clause means, with respect to
gender differences. There were cases in which men
were claiming they were denied rights
that women enjoyed, and I’ll give you a
specific example. You don’t have to bring a
case to uphold a right, it’s when someone claims
that he or she is being denied a right that there
would be a complaint in court. When the 14th
Amendment became part of the law, there were many,
many laws that treated men and women
differently. For example, not only
couldn’t women vote, but they couldn’t serve on
juries. And one…when a woman married, she
became subordinate to her husband. She could no
longer make contracts in her own name, she couldn’t
sue in court in her own name, and she couldn’t
hold property in her own right. The expression was,
“husband and wife are one, and the husband was the
one.” That’s the way it was in 1868 in many states,
and I think if you had asked the people who
proposed and ratified the 14th Amendment whether
they meant to change any of that, they would
probably have said, of course not. The
difference between men and women is not anything we
can do anything about, it is, as one judge
notoriously said in the 1860s, “Woman’s destiny
is to be wife and mother. That is the law of the
Creator.” That was the law of the Creator. A man-made
constitution couldn’t stand up against it.
So…in the beginning there was the
understanding that, yes, all persons
are entitled to equal protection of the laws,
but the legislature could make reasonable
distinctions, and the distinction
between men and women was certainly reasonable. Why
did…I concern…myself with cases that involve
men as well as cases that concern women? To me, the
Equal Protection Clause is about people. It’s about
each of us having the opportunity to develop our
talents as far as they can take us, with no
artificial barriers put in our way just because we
are male or female. And I’ll tell you the kind of
male rights cases in which I was involved: A man
who was the principal caretaker of his home,
he was running a computer operation out of his
home; his wife was a math teacher in high
school. She was pregnant, very healthy. She was
taken from school to the hospital when it became
time for the birth of the baby. The doctor came
out and told the expectant father, you have a
healthy baby boy, but your wife died of
an embolism. That man, his name was
Stephen Wiesenfeld, vowed that he would be the
genuine caretaker of his child, that he would work
only part-time until his child was in school
full-time. So he applied for the Social
Security benefits that are available to a
widow who has a child, a young child, in her
care. And the Social Security offices said,
that’s not for you. These are mothers’ benefits.
Congress made these benefits
available to widows, not widowers. Well, that
case was brought all the way to the US
Supreme Court, where it yielded a
unanimous judgment, but different
reasons. Now, I’ve just told you the
basic facts of a case called Weinberger v.
Wiesenfeld. Is Stephen Wiesenfeld in fact the
victim of this unequal law? And most of
the judges said, really, the discrimination
began with his wife, because she paid Social
Security taxes at the same rate as a man did,
but…her Social Security taxes did not net for her
family the same benefits that a man,
paying the same tax, got for his family. So
it really starts with the woman as wage earner. The
woman is being preferred as parent, but she’s being
discriminated against as wage earner. And the same
thing for the man. He has full Social Security
coverage for his wife, but if he is in the
position of caring personally for a child,
then he is disadvantaged. So some of the
justices said, it’s really discrimination
against the woman as wage earner. Others said,
it’s really discrimination against the male as
parent. And one Justice said, there is someone
else in the picture. And that someone else was
the baby. And it seemed to that Justice,
who was my Chief, Chief Justice Rehnquist,
he was then not the Chief Justice, but he was a
member of the Court. He said, it is utterly
irrational to say that a child has the opportunity
for the care of his only surviving parent if
that surviving parent is female, but not if the
parent is male. And that was the whole idea that we
were attempting to project in the 1970s, that these
gender lines in the law were unfair to everyone.
They were unfair to women, to men, and to children.
So the notion wasn’t male rights or female rights,
but equal rights for all humans. And that’s why the
expression women’s rights is a bit problematic. It’s
human rights. It’s the rights of all persons to the
equal protection of the laws. STUDENT: My question
is; how has the Court’s approach to gender discrimination
changed over time? JUSTICE GINSBURG: Let me
give you a concrete example. This is a case that…was
decided by the US Supreme Court in the year
1961, when that gentleman, Earl Warren, was the Chief
Justice. And he was known as a quote, “liberal”
Chief Justice. The case involved a woman named
Gwendolyn Hoyt. She was what we would today call a
battered woman. She had a philandering husband
who humiliated her to the breaking point. And
they were having a fight; she was beside herself
with rage. She spied her son’s baseball bat in the
corner of the room. She took it, and
with all her might, hit him. And he fell over,
and perhaps it was a freak accident, but he died
instantly. So she was put on trial for murder. And
in the county where she lived, only men were
called for jury duty. The law was very kind
to women. It said, if any woman wants to
be on the jury roll, she can go up to the
clerk’s office and sign up. But if a
woman doesn’t ask, she won’t be on
the jury roll. Now, if people had that choice,
they probably would not want to serve on the
jury. They would rather go fishing or something else.
So there were no women on the jury roll in
Hillsboro County, Florida. And Gwendolyn
Hoyt was convicted of second-degree murder.
When her case came to this Court, she said, I
was denied the equal protection of the
laws. I had a jury, but it wasn’t a
jury of my peers, because there were no
women on it. The Court said, we don’t understand
the complaint that you’re making. Women have the
best of all possible worlds. They can serve on
the jury if they want to, they can say “no thanks”
if they want to. And here’s Gwendolyn Hoyt,
saying but what about me? Maybe if there were
women on the jury, they might have better
understood my state of mind, my rage when I
did that bad deed, and maybe, not that
I’m saying I’m innocent, maybe they would
have convicted me of manslaughter, which is a
lesser crime than murder. That was in
1961. In the 1970s, the Supreme Court did
an about-face when Chief Justice Warren was no
longer Chief Justice, and Chief Justice Burger,
who was known as a kind of conservative Justice,
became the Chief Justice of this Court, of the
United States in fact. And during the 1970s,
dozens of laws…were held unconstitutional for
denying women or men the equal protection of the
laws. So the jury cases that I mentioned; those
were all gone. All those laws had to be changed as
a result of decisions of this Court. All of the
distinctions in relating to work that gave benefits
to men’s families but not to women’s families, all
of those were gone. Why do you suppose there was
that enormous change? STUDENT: Perhaps the
changing gender roles in society with more women
coming to the work force? JUSTICE GINSBURG: That is
exactly right. A court, as you know, is a reactive
institution. And while the judges don’t decide cases
based on whatever the news of the day is, they
are affected… Well, there was a…Constitution
law scholar who put it beautifully. He said,
the Court should never be affected by the
weather of the day, but of course they are
affected by the climate of the era, and it was
that climate in the larger society that was changing.
More and more women were coming into
the work force, more and more families
were two-earner families, and women were
beginning to see, their partners in life
were beginning to…see how basically unfair
the laws that restricted either men or women, just
because they were male or female, how unfair those
laws were. So it was the change in society that the
Court was reacting to. The Court was finally catching
up to a changing world, and that’s what
happened in…in the 70s, and had not happened
at an earlier time. STUDENT: Is the 14th
Amendment interpreted differently in the present
Court than in past Courts, and if so, what accounts
for these differences? JUSTICE GINSBURG: Not
a court…the changing composition of the
Court, and not any grand philosophy the judges had,
but because we the people have changed in
their attitudes, and have come to
the Court and said, the Equal Protection
Clause has a grand idea. The equal stature and
dignity of all humans, and our government,
including the Congress and the Court, have
been interpreting it incorrectly, that the
change in this Court occurred because there
was a change in the larger society. That’s a
message I’d like you to appreciate. The courts
are reactive institutions. They don’t make their own
agenda like the President does or Congress. They
react to controversies that people bring to them.
There was one federal judge who expressed it
very well. He said that federal judges are a bit
like firefighters. They don’t make the
conflagrations, but they do the best
they can to put them out. STUDENT: How has the
Court’s approach to racial discrimination
changed across time? JUSTICE GINSBURG: I’ll ask you
about a case that probably you have heard of, to
illustrate how it has changed. Let’s start with
a case from before the 14th Amendment, from
before the Civil War. Well, what the Dred
Scott decision said was, no person born of a slave
can ever be a citizen of the United States, and
remains the property of its master, even if it
is taken into a free territory. That decision
so incensed we the people that it helped to
precipitate the Civil War. Well then, the
Civil War is over, and we have
the 13th, 14th, and 15th Amendments, that
make the former slaves part of we the
people, voters, but then there’s a
decision in 1896 called Plessy against
Ferguson. Can someone tell me what that
case is about? Yes? STUDENT: The Court ruled
that as long as the schools and other facilities were
separate but equal in standard that discrimination
could be allowed. JUSTICE GINSBURG: Plessy
against Ferguson upheld the so-called separate but
equal doctrine. And it…the case itself was not about
schools. It was about accommodations. We
had, if truth be told, in America at the time, a
system not so far distant from the system in South
Africa: The separation, the law-enforced
separation of the races. The word in South Africa
is “apartheid.” Laws saying the races should
not mix. They are entitled to equality, so
separate but equal, separate but
equal schools, separate but equal
places on buses, on trains, in
movie theaters, even in courtrooms.
That was the understanding in…1896. And then let’s
fast-forward to 1954. And the Supreme Court decides
the case of Brown v. Board of Education, and says
that separate but equal was a misguided doctrine,
and equal means together. We the people, forming a
union with no separation of people by race,
national origin, et cetera. We the people
are one. We are many, “e pluribus unum.” We are
many, but we are one. JUSTICE GINSBURG: There’s
one question that none of you asked me about equal
protection, and I thought some might. And that is, do
any of you know what the Equal Rights Amendment was
intended to do? Do any of you know what the Equal Rights
Amendment is? Yes? STUDENT: I thought that the
Equal Rights Amendment was proposed to give total
and complete equal rights to males and females,
but it was never passed. JUSTICE GINSBURG: It…it
fell three states short of ratification. It says, basically,
that rights shall not be denied or abridged on account
of sex. And the people who were supporting
it, men and women, thought the
19th Amendment, that ended…that gave
women the right to vote, was too limited, because
all it did was give them the right to vote, and
women over the years wanted more. They wanted
equal opportunity in the job market and all fields
of human endeavor. The people who were proponents
of the Equal Rights Amendment, by the 1970s
were inspired by newer constitutions
in other places, constitutions that were
written since World War II, and that understood that
men and women were persons of equal stature
and dignity. They are entitled to the same
respect from government. That was the thrust of the
Equal Rights Amendment. It was first
introduced in 1923, and it has been
reintroduced almost every year since. I would still
like to see it as part of our constitution, because
when I pick up this fundamental
instrument of government, I carry this with me
wherever I go in the world, I can’t show to
my grandchild something, a simple
statement that says, men and women are
persons of equal dignity, entitled to the same
respect by the government. I can tell my
grandchildren that our constitution guarantees
freedom of speech, press, all these other
wonderful guarantees, but doesn’t contain that
basic statement. So even if ordinary laws have
taken away all the former inhibitions on
what women could do, even if the laws have
changed in that regard, the Equal Rights Amendment
to me remains an important symbol. It’s a statement
that should be in our constitution. It should
be in there to help us continue to form a
more perfect union. APPLAUSE ♪ MUSIC ♪

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  1. Slavery existed in America even after the Fourteenth Amendment and 1870! Slavery was replaced by another name! If you owe someone or institution, you are a slave to the creditor and must reimburse them or land in jail.

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