II. The Development of the Idea of Equality as Marshall Saw It
From his study of law and work as a lawyer, Marshall well understood the constitutional history of the concept of equality. Although the Declaration of Independence declared that “all men are created equal,” the original Constitution did not mention equality and, in fact, sanctioned the continuation of slavery. Its purpose was to establish a national government and to ensure that government could not interfere with the liberty of individuals who were not slaves. Some seventy years later, the idea of equality memorably resurfaced in the Gettysburg Address, in which Lincoln declared that the new nation being formed by the Civil War was “dedicated to the proposition that all men are created equal.” Lincoln's speech served as a kind of “preamble of the second American constitution,” which resulted from the Thirteenth, Fourteenth, and Fifteenth Amendments. To Marshall, the Fourteenth Amendment “enshrined into national law the principles of freedom and equality which an earlier generation had announced in more abstract form in the Declaration of Independence.”
The purpose of the Reconstruction Amendments was to establish freedom and equality for African Americans. The Fourteenth Amendment “repudiat[[ed] the racialist vision of American identity that had animated Chief Justice Taney's infamous Dred Scott decision.” “Henceforth, there was to be no ‘dominant race’ and no ‘subordinate and inferior class of beings,’ but only citizens.” As Marshall explained, the Amendments, particularly the Fourteenth, conferred on the national government the power to ensure “that the fundamental rights of all individuals were respected.” The guiding premise of the second constitution was “not freedom from government but equality under law. The state would have to do more than leave [people] alone.” Its new task was to guarantee equal citizenship. The Thirteenth Amendment as well as the Fourteenth “betoken[ed] ” a new way of conceiving the national government, envisioning it not as an enemy but as a “partner in the building of a society free of interpersonal exploitation.” By decreeing that “[n] either slavery nor involuntary servitude shall exist,” the Amendment recognized that without government some people would inevitably dominate others and, therefore, required that government prevent certain “relationships of exploitation [from] com[ing] into being.”
The drafters of the Reconstruction Amendments cast them in general terms rather than limiting their scope to racial justice and thereby gave the idea of equal citizenship the capacity to grow and to protect other groups. As Marshall put it:
The spirit of justice was not limited to racial discrimination. The germ planted was infectious and has spread. It is certainly not an exaggeration to say that concern for the rights of the criminally accused and for the economically disadvantaged has come in part from the lessons learned in the fight against discrimination.
The inspiring language of the Amendments, of course, did not guarantee that they would be enforced. And within fifteen years of the ratification of the Fourteenth Amendment, “a hostile judiciary” had largely “suppressed” the idea of equal citizenship. In the Slaughter-House Cases, the Supreme Court interpreted the Privileges or Immunities Clause of the Fourteenth Amendment so narrowly as to “consign[ ] it to a constitutional limbo where it [remains] to this day.” And as the nation lost interest in the African American's struggle for freedom, the Court continued to limit the reach of the Reconstruction Amendments, leaving blacks with no meaningful protections against the suppression of their vote and, in the Civil Rights Cases, striking down the Civil Rights Act of 1875, which provided equal access to restaurants, hotels, theaters, and the like. The latter decision opened the door to Jim Crow, which Marshall characterized as a “pervasive, official system of segregation which carries from cradle to grave.” In 1896, in Plessy v. Ferguson, the Court stated that “[l] egislation is powerless to eradicate racial instincts” and announced the “separate but equal” rule. To Marshall, Plessy “mark[ed] the nadir of constitutional protection for minorities.” He noted that Justice Harlan, who dissented, as he had in the Civil Rights Cases, “correctly prophesied . . . that the decision would, ‘in time, prove to be quite as pernicious as the decision . . . in the Dred Scott case.”’ Reconstruction's demise did not entirely submerge the idea of equal citizenship. In his dissents in the Civil Rights Cases and Plessy, Harlan expressed the view that the Thirteenth and Fourteenth Amendments “conferred . . . a right of equal citizenship . . . capable of enforcement by Congress.” And the Supreme Court occasionally recognized the idea of equal citizenship, either implicitly as in Yick Wo v. Hopkins, in which it struck down a San Francisco ordinance requiring a special permit for laundries constructed of wood because the ordinance had been discriminatorily applied against Chinese immigrants, or explicitly as in Strauder v. West Virginia, in which it held that a state could not exclude blacks from jury service.
Moreover, the long contest over slavery stimulated the development of a rights-conscious interpretation of the Constitution and brought the idea of equal citizenship to the forefront of many debates. The arguments of union activists and advocates for women, for example, took on a constitutional cast. Populists argued that the equality principle meant that wealth, political power, and other advantages should be widely distributed. Progressives like Louis Brandeis also advocated a broad and democratic concept of citizenship. Whether the Progressives were “championing collective bargaining . . . or other reform visions” such as “government ownership, producers' cooperatives, [or] labor copartnership,” they contended that “workers' citizenship [must be] acknowledged, and industry ‘constitutionalized.”’
The activities and arguments of advocates for subordinated groups clearly influenced Marshall and provide a link between the Reconstruction Amendments and his work as a Supreme Court Justice. As a Justice, Marshall was deeply sympathetic to the efforts of subordinated groups to claim the benefits of the Reconstruction Amendments and, as we will see, his broad vision of equal citizenship was at the heart of many of his opinions. Recognizing that the Fourteenth Amendment was not only about blacks but about other disadvantaged groups as well, Marshall rejected its “racial exclusivity . . . without ignoring the importance of its racial specificity.”
