Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

Chapter 5
COLOR AND THE CONSTITUTION

Jurisprudential development of the Fourteenth Amendment rather quickly extended and redirected what originally was perceived as its historical and pervading purpose. In its seminal opinion on the Fourteenth Amendment in the Slaughter-House Cases, the Supreme Court emphasized the provision's concern with "the freedom of the slave race, the security of and firm establishment of that freedom, and the protection of the newly-made free man and citizen from the oppression of those who had formerly exercised unlimited dominion over him." The "evil" that the equal protection clause responded to was state laws that, in the Court's words, "discriminated with gross injustice and hardship against . . . the newly emancipated negroes." Given that purpose, the Court "doubted[ed] very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." The influence of economic rights theory on the Fourteenth Amendment's meaning became discernible even before the formal end of reconstruction, as judicial review accelerated the drift beyond what the Slaughter-House Court had described as a "pervasive" concern with "the freedom of the slave race." Contrary to the sense of purpose and priority identified by the Slaughter-House Court, constitutional attention to economic rights soon heightened as it simultaneously diminished for racially significant discrimination.


Political Change and Judicial Resistance

Reduction of the Fourteenth Amendment's pertinence in responding to state-sanctioned racial burdens was previewed within a few years of its

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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