For All the Hereafter: Obergefell v. Hodges

White House Rainbow ColorsWhite House Rainbow Colors. (Photo: White House Press Office)

June 26 was a pretty good day for civil rights, as the Supreme Court guaranteed the right for same-sex couples to marry by a 5-4 majority in Obergefell v. Hodges. But conservative jurists dissented, arguing that a strict reading of the Fourteenth Amendment’s original intent provided no grounds for the majority’s ruling. John Roberts asserted that the Constitution “had nothing to do” with the decision, for example, while Samuel Alito labeled the majority’s ruling an “abuse of its authority” and an improper interpretation of the Constitution. Clarence Thomas declared that the majority in Obergefell had granted a “government benefit” rather than guaranteed a fundamental right.

In fact, the original intent of the Fourteenth Amendment was flexibility. In 1868, protecting the rights of freed slaves was Congress’s top priority. But the amendment’s framers sought to craft a sweeping federal guarantee of individual liberty that would reach far into the future. Consider the amendment’s critical Section I:

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.

Ostensibly, a contemporary problem triggered this measure. Four million bondspersons had been freed from slavery, only to be subjected to virtual re-enslavement not simply by their former masters, but by southern state governments as well. When former Confederates returned to statehouses just after the Civil War, they immediately passed a series of debilitating Black Codes that strictly limited freedpeoples’ political participation, their access to the legal process, and their paths to economic mobility.

The Civil Rights Act of 1866 sought to remove these liabilities by defining all native-born Americans as citizens and extending to all in the southern states equal rights of federal citizenship. The immediate purpose of the Fourteenth Amendment was to ensure the constitutionality of the Civil Rights Act so that no future Congress could repeal it. James Garfield proposed to “lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it.”

But the framers of the Fourteenth Amendment viewed their work as more than merely protecting the rights of freed slaves. They sought to mend a critical flaw in the nation’s system of governance. Through the mechanism of the Bill of Rights, and particularly through the Fifth Amendment, the framers of the original Constitution sought to limit the power of the federal government to impair individual liberties. In the 1780s, this fit nicely with the political ideology of the revolution: liberty was thought safest when distributed far from central government, in the states. But what happened when the states themselves acted against individual liberties? If the Constitution protected individual liberties against the unjust exercise of federal power, what protected them against the unjust exercise of power at the state level?

In asserting the primacy of federal over state authority, the first Congress of Reconstruction crafted a sweeping reconceptualization of federal-state relations, making the federal government the ultimate and final arbiter in all cases where individual rights are infringed upon by the power of government at any level. Congressmen posed their solution in broad and principled terms precisely because they realized that the specific case they confronted could come up again and again in other guises. The Fourteenth Amendment did not seek to promote the interests of one group, but to establish Congress’ authority to step in and protect the rights of any group targeted by the states for unequal treatment.

To be sure, there was a cost to framing the amendment in terms of broad principles, for such general language could be interpreted in many ways. In the late nineteenth century, for instance, the Supreme Court transformed the amendment from a safeguard of freedpeoples’ rights into a defense for corporations resisting government regulation, resulting in decisions that rightly seem perverse to modern sensibilities. Where the Court ruled in the 1886 case of Santa Clara County v. Southern Pacific Railroad Company that businesses could claim the protections of legal personhood under the Fourteenth Amendment, ten years later in Plessy v. Ferguson it held that a man of African descent relegated to second-class status on public conveyances could not. Indeed, by the time of Plessy, the court could rule that “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences,” and that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

But the very vagueness that permitted such atrocious misreadings of the amendment’s original intent is now serving its purpose exactly as intended. The framers of the Fourteenth Amendment clearly thought about its wide application. They wondered if it might be used by married women to argue for expanded rights to property, and they anticipated (and affirmed) that the amendment would create naturalized citizens of everyone native-born, regardless of heritage. William Pitt Fessenden of Maine went so far as to unlink the Civil Rights Act from the Fourteenth Amendment: “During all the discussion in the committee that I heard,” he stated, “nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.”

The amendment’s greatest champion in the House, Ohio Congressman John Bingham, went furthest in explaining its scope. He asserted that its protections would extend to white Union loyalists whose lands were being confiscated in the South, as well as to blacks subject to racial restrictions in nominally free states such as Indiana and Oregon. In the event of future showdowns between state and federal power (Bingham recalled the Nullification Crisis of 1833 as a historical example), Congress would now have the power to protect the civil rights of those who dissented from their state’s policy. Forever after, it would “protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.”

In Obergefell v. Hodges, the majority thus ruled sagely, and completely within the original intent of the framers of the Fourteenth Amendment. The rights that amendment confers are not government giveaways or special favors. They are a bold assertion of the federal government’s responsibility to secure the liberties of minorities singled out for state-sponsored prejudice. If original intent matters, then the words of the amendment’s most important framer should matter. According to John Bingham, those who wrote, championed, and passed the Fourteenth Amendment sought nothing more than “the care of the Republic, not only for the present, but for all the hereafter.”

About the Author

Patrick Rael

Patrick Rael is Professor of History at Bowdoin College. His most recent book, Eighty-Eight Years: The Long Death of Slavery in the United States, 1777-1865 (University of Georgia Press, 2015), explores the Atlantic history of slavery to understand the exceptionally long period of time it took to end chattel bondage in America.

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  1. Excellent article! I felt that the Court was absolutely correct in its interpretation of the 14th Amendment, and it’s fascinating that the original authors of the amendment intended this to be the case. Looking forward to your book.

  2. I read through Obergefell v. Hodges copying Justice Kennedy’s statements in praise of the institution of marriage. Beautiful. Hallmark Cards should be envious.

  3. Patrick, this is a great concise rundown of both the Obergefell ruling and the fascinating history of the 14th Amendment. I make this point to my students whenever we discuss Reconstruction, that the 13th Amendment – and especially the 14th – are a sea change in how Americans viewed the Constitution and the power of the Federal government, and you lay out that shift and that history really nicely here. I’m svanig this article to use in class next year.

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