In the wake of the Civil War, the 13th Amendment abolished slavery, and restored to African-Americans the natural rights that had been denied to them upon their enslavement and transport to America. Though that was an unalloyed benefit to the nation, it created a complication with respect to representation. Once the three-fifths clause became inoperative, former slaves were to count as free persons for the purpose of apportioning the House of Representatives. The former Confederate states would gain additional congressional representation as a result.
The 14th Amendment further addressed the issue by making racial discrimination against former slaves with respect to voting rights subject to a loss of congressional representation. It went much further than many of the Founders would have thought possible. By making plain that “All persons born or naturalized in the United States” would be citizens, and by specifying that no person could be deprived of “life, liberty, or property, without due process of law,” nor denied the “equal protection of the laws,” it granted full enjoyment of civil rights to all former slaves. The Privileges and Immunities clause now applied to all citizens of the United States, and all Americans—whether their ancestry had originated in Europe or Africa—were now to be considered citizens.
The 15th Amendment ostensibly resolved the issue by barring racial discrimination with respect to voting altogether. In practice, however, that amendment was treated largely as a dead letter until the 1960s, as African Americans were systematically denied the right to vote across the South using a variety of means under discriminatory Jim Crow laws.
Whatever might have been the intended consequence or the plain meaning of the 14th Amendment, it was frequently violated in practice, by both state laws and state courts, as well as federal courts. The Slaughter-House Cases of 1873, for instance, established the principle that the 14th Amendment only protected those rights of citizenship pertaining to federal laws. It therefore left the states free to discriminate based on race in the making and enforcing of state laws (such as the various protections for property rights). Furthermore, the original meaning of the amendment prohibited only state or local governments from discrimination based on race; it was silent on the question of whether private companies – such as railway operators, motels, and lunch counters – could enforce discriminatory practices. In Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana law which mandated “equal but separate accommodations for the white and colored races” in railway cars.
The Plessy case was complex, for it was examining a state law governing a private corporation, exercising a public function, and so the authority of the federal courts under the 14th Amendment was not clear. As precedent, the majority opinion of the court cited such established norms as the segregation of the races in schools, a practice upheld in Roberts v. City of Boston in 1849 (a rather dubious basis for precedent, since that case preceded the 14th Amendment). Plessy, in its turn, would be used to justify the continuance of segregated schools. African-American students were not the only victims of discrimination during this period; federal, state, and local laws had mandated separate facilities or schools for American children of Hispanic, Asian, and Native American descent as well.
In his dissent, Justice Harlan predicted that the Plessy v. Ferguson decision would one day be as notorious as the Dred Scott case. He insisted that the interests of both races “require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.” Such laws could only exacerbate the conflict between the races, which already subsisted in this country. The majority opinion had held that, if the races were ever to be fully integrated, social change – the evolution of opinions and attitudes – must precede any legal progress. Harlan disagreed. He believed that the law should be used to correct defects in societal norms.
Subsequent court cases, especially since Brown v. Board of Education (1954), have held that “separate but equal” was an unconstitutional principle governing the distribution of public services; rather, “equal protection of the laws” mandated equal treatment. Some court decisions have even maintained that certain private businesses or transactions were barred from discriminating under the 14th amendment, since the people who were prevented from engaging in those commercial transactions were in effect denied “equal protection of the laws.” Thus, the passage of the 14th Amendment did not immediately protect all of the civil rights of African-Americans. It would take subsequent court decisions, as well as state and federal statutes, to ensure the equal civil rights of all.