The 14th Amendment : Throughline Of all the amendments to the U.S. Constitution, the 14th is a big one. It's shaped all of our lives, whether we realize it or not: Roe v. Wade, Brown v. Board of Education, Bush v. Gore, plus other Supreme Court cases that legalized same-sex marriage, interracial marriage, access to birth control — they've all been built on the back of the 14th.

The amendment was ratified after the Civil War, and it's packed full of lofty phrases like due process, equal protection, and liberty. But what do those words really guarantee us?

Today on the show: how the 14th Amendment has remade America – and how America has remade the 14th.

Clarification: A previous version of this episode did not make clear that the 14th amendment guarantees equal protection and due process to all people in the United States, regardless of citizenship.

The 14th Amendment

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KENNETH MACK: OK, so Section 1 of the 14th Amendment reads, 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.

VERNON BURTON: 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.

MACK: Nor deny to any person within its jurisdiction the equal protection of the laws.

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PETER BALONON-ROSEN, BYLINE: OK, so I'm out in Times Square. We got the Naked Cowboy right here. We got tons of billboards, tons of flashing lights, and tons of people. We're going to see if people know what any of these phrases in the 14th Amendment mean.

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RAMTIN ARABLOUEI, HOST:

Of all the amendments, the 14th is the mega titan amendment. It's huge. It's shaped all of our lives, whether we realize it or not. This amendment was ratified after the Civil War, when America, as a country, was rethinking who was an American and what kind of rights all Americans should have. And this amendment - it's packed full of lofty phrases - due process, equal protection, liberty - lofty phrases that our democracy supposedly runs on. THROUGHLINE producer Peter Balonon-Rosen hit Times Square recently to see what people made of the stuff packed into the 14th Amendment.

BALONON-ROSEN: Mind if I ask y'all a couple questions?

UNIDENTIFIED PERSON #1: Sure.

BALONON-ROSEN: OK. What does liberty mean?

UNIDENTIFIED PERSON #1: Liberty? Liberty can have a lot of meanings. In my opinion, liberty means the freedom to do whatever you would like.

UNIDENTIFIED PERSON #2: Liberty?

BALONON-ROSEN: Yeah.

UNIDENTIFIED PERSON #2: I don't know exactly - liberty.

UNIDENTIFIED PERSON #3: Like, freedom, I guess.

BALONON-ROSEN: Sure.

What does due process mean?

UNIDENTIFIED PERSON #4: Due process is your right to be protected by the law.

UNIDENTIFIED PERSON #5: Due process is what we don't get (laughter).

UNIDENTIFIED PERSON #6: I would say it is the ability to have an opportunity to - I would say it's an opportunity for someone to - well, I'm having trouble on this one.

UNIDENTIFIED PERSON #7: I know it's, like, with the law. I know that much.

BALONON-ROSEN: And last definition for you - what does equal protection mean?

UNIDENTIFIED PERSON #8: The law applies to everybody equally.

UNIDENTIFIED PERSON #9: No matter, like, you know, disability, race, sexual orientation or anything like that.

BALONON-ROSEN: Cool. Now, all these phrases come from the 14th Amendment. Do you know what the 14th Amendment does?

UNIDENTIFIED PERSON #10: Let's see. What is the 14th?

UNIDENTIFIED PERSON #11: The 14th Amendment...

UNIDENTIFIED PERSON #12: Don't look at me.

UNIDENTIFIED PERSON #13: Being from the U.K., I wouldn't have a clue.

UNIDENTIFIED PERSON #14: I do not.

UNIDENTIFIED PERSON #15: I don't know.

UNIDENTIFIED PERSON #16: No.

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MACK: Well, the 14th Amendment is a charter of basic rights, and in trying to give basic rights to African Americans, the 14th Amendment gave basic rights to everybody. Without the 14th Amendment, most of the things we think of as basic citizenship rights would not be protected against either state or local governments.

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ARABLOUEI: So many major Supreme Court cases have been built on the back of the 14th Amendment. Roe v. Wade, Brown v. Board of Education, Bush v. Gore, plus other cases that legalized same-sex marriage, interracial marriage, access to birth control - they all came down to the 14th Amendment.

MACK: So many of the things we really just take for granted as our basic rights as citizens we wouldn't have.

ARABLOUEI: The 14th Amendment basically says no matter which state you live in, no matter who you are, there are things that you're guaranteed as a citizen - liberty, due process, equal protection. But those questions that stumped some of the people in Times Square - what do any of these things actually mean? They've been stumping people since the amendment was ratified back in 1868.

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ARABLOUEI: I'm Ramtin Arablouei.

RUND ABDELFATAH, HOST:

And I'm Rund Abdelfatah.

ARABLOUEI: Now, you might have heard a lot about the 14th Amendment recently. It's what states like Colorado tried to use to bar Donald Trump from their presidential ballot. It, quote, "bars people who've taken a constitutional oath and then are part of an insurrection from holding federal office." Because this amendment - it came together after one part of the nation seceded and violently fought against the United States. The 14th Amendment was born in an effort to reunify the country, to put together what had come apart, to define what rights we can all expect as citizens. This is the next installment in our series looking at amendments to the U.S. Constitution. Coming up on THROUGHLINE from NPR - how the 14th Amendment has remade America and how America has remade the 14th.

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QUINCY: This is Quincy (ph) from Kalamazoo, Mich., and you're listening to THROUGHLINE by NPR.

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UNIDENTIFIED ACTOR #1: (As Abraham Lincoln) The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly, the sheep and the wolf are not agreed upon a definition of the word liberty - Abraham Lincoln.

ARABLOUEI: Abraham Lincoln knew the word liberty could mean different things to different people, and what he felt was right changed over the course of his presidency.

Can you tell us about the speech he made right before he was assassinated?

BURTON: So a crowd gathers at the White House. He comes out and gives a speech.

UNIDENTIFIED ACTOR #1: (As Abraham Lincoln) We meet this evening not in sorrow, but in gladness of heart.

ARABLOUEI: It's 1865. Lincoln had issued the Emancipation Proclamation two years earlier, declaring enslaved people in Confederate states to be free. The Civil War was coming to an end, and there's this big question at the time on a lot of people's minds.

MACK: What is going to happen to, you know, nearly 4 million African Americans who had been enslaved in the South? Are they going to have basic rights? Are they not going to have basic rights?

ARABLOUEI: In his speech, Lincoln says he'd like to extend some rights to newly freed Black people.

UNIDENTIFIED ACTOR #1: (As Abraham Lincoln) I would prefer myself that it were now conferred on the very intelligent and on those who serve our cause as soldiers.

BURTON: He's advocating for, of course, Black citizenship, and certainly voting rights, at least for those who fought for the Union, and there are a lot of former slaves and free Blacks who had fought for the Union.

ARABLOUEI: But the very mention of that idea - Black men, just men voting, Black citizens - it ruffles feathers, including the feathers of a man in the crowd listening to Lincoln's speech that evening, a man named John Wilkes Booth. Three days after hearing Lincoln's speech, Booth shoots Lincoln in the head, killing him.

BURTON: Lincoln is really killed for voting rights, for citizenship rights.

ARABLOUEI: This is Vernon Burton.

BURTON: I'm the Judge Matthew J. Perry Distinguished Professor of History at Clemson University. I have co-authored a book, "Justice Deferred: Race And The Supreme Court."

ARABLOUEI: He's going to be one of our guides telling us this story. The other is legal historian Kenneth Mack.

MACK: Professor at Harvard Law School and also a professor of history at Harvard University. I've written a book called "Representing The Race: The Creation Of The Civil Rights Lawyer."

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MACK: The 14th Amendment is a reaction to what came after Lincoln's assassination.

ARABLOUEI: What came after is Andrew Johnson, Lincoln's VP, who gets sworn in as president, and it's Johnson's job to pick up the presidential baton and put a fractured nation back together.

MACK: And in the context of massive and rampant violence against Black people all over the South.

ARABLOUEI: What was the nature of that violence?

MACK: You know, the Civil War is a violent war, everyone has to understand. You know, every war is violent, but this is the most violent war in American history, and the violence continues after the war. We kind of think of Lee's surrender, the war is over. No, the war continues. For instance, there was the Memphis riot of 1866. There were clashes between African Americans and police officers in Memphis, Tenn. Forty-six Black people were killed. Eighty-nine of their homes were burned.

ARABLOUEI: Wow.

MACK: There was lots of reaction to Black people organizing politically. You know, a couple years earlier, they had been enslaved, and now they're organizing politically to be equals to white people politically. So there was a New Orleans riot of 1866 in which a mob attacked a group of African Americans who were gathering in advance of the Louisiana Constitutional Convention. And the mob killed 35 of them.

ARABLOUEI: Wow.

MACK: So these things were not uncommon in the years after the Civil War.

ORVILLE VERNON BURTON: Former Confederates are just rampaging, killing Black people. In rural areas, a lot of Black leaders were murdered. Teachers, as well as even ministers and churches, burned. I mean, it was - people in the United States seem to think that terrorism began with 9/11 in the United States, but African Americans lived in a terroristic society.

MACK: And Johnson is doing nothing about this. And at the same time, Congress is trying to do something about it. Congress is trying to pass legislation to help Black people in the South. Congress passes something called the Freedmen's bill - right? - to establish the Freedmen's Bureau to aid Black people in the South. Congress passes the Civil Rights Act of 1866, which would make Black people into citizens and protect their basic rights. And Johnson vetoes them.

ARABLOUEI: Wow.

MACK: Johnson claims that the Civil Rights Act of 1866, which is supposed to give African Americans equal rights to white people, is discriminatory against white people - that it's...

ARABLOUEI: Wow.

MACK: ...Some kind of special privilege for Black people to give them equal rights to the rights that white people had.

ARABLOUEI: Can you talk about who Andrew Johnson was and what he did - how he picked up, or didn't pick up, the mantle of Lincoln after he was assassinated?

BURTON: Johnson was from Tennessee. He was just anti-class. He was anti the elite, who he thought were sort of running the South and taking him into a war that there was - should not have been in.

ARABLOUEI: And as president...

MACK: Johnson is just ignoring the basic conditions of Black people in the South.

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ARABLOUEI: Just before Andrew Johnson was vetoing legislation that would have enshrined equal rights for Black people into federal law, states were passing what were called Black Codes - laws that severely policed Black people's lives.

BURTON: With the Black Codes, which at best was regulating race relations so that white supremacy would suggest - but it even, you know, limited that Black people had to get a pass to go from one place to another. Some of them just substituted in their slave codes the word freedmen for slaves. Some of them even made it illegal for white people to treat Blacks as equals and punished them as well.

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MACK: It's clear after the Civil War that the only way that African Americans will get basic rights in the former Confederacy is if there's some national constitutional rights that applies everywhere and applies against the actions - or the inactions - of the states.

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ARABLOUEI: At the time, if a state passed a super-discriminatory law or actively looked the other way when, say, lynchings happened, there was nothing in the Constitution that explicitly let the federal government say, hey, state, you can't do that.

MACK: The assumption behind the Constitution originally was that, you know, states would protect the rights of their citizens. We didn't need the U.S. Constitution to protect citizens from the actions of their own states.

ARABLOUEI: But clearly something had to change. So with the 14th Amendment, Congress set out to do something totally new. In the 14th Amendment, it said all citizens get certain rights. And if a state government or state law get in the way of those rights, then the federal government can step in.

For an amendment to be ratified, it needs to be voted on by Congress and then approved by individual state legislatures. And this amendment - it was really pushed forward by the political party in charge - the Republican Party.

MACK: The Republican Party, of course, was the party of antislavery. Lincoln gets elected as the Republican president. So the Republicans were the forward-leaning party with regard to slavery and with regard to Black rights.

ARABLOUEI: I want to talk about a group of people who are involved in this that I don't think most Americans even would understand the term when we bring it up, which is the Radical Republicans. Who were the Radical Republicans? And what was their response to all of this violence and to Johnson's kind of resistance to any kind of the reforms they were trying to push through?

MACK: The Radical Republicans are the ones who really were in favor of Black equality. They wanted something very much done about inequality in the South. They wanted the former Confederate states reconstructed to bring about equality.

ARABLOUEI: Over the course of the 1860s, the Radical Republicans in Congress passed three major post-Civil War amendments - the 13th Amendment, which said there could be no slavery in the U.S; the 14th Amendment, which, among other things, said that states can't take away the rights of U.S. citizens or deny those citizens equal protection under the law; and the 15th Amendment, which said that the right to vote couldn't be denied because of one's race or previous enslavement - all three a direct reaction to the Civil War and what was going on in the formerly Confederate South.

MACK: You know, the first thing that the new Congress does is it moves to exclude the people who had been elected to Congress who had been in rebellion. The 14th Amendment would have never passed Congress had the former Confederates been seated in Congress.

ARABLOUEI: They also do something else just to make sure that amendment will get ratified.

MACK: So the Republican Congress passes a thing called the Reconstruction Act of 1867. And it finally kind of - it's - you know, it's kind of overruling Andrew Johnson's policy and setting its policy towards the formerly rebellious states. And in order to come back into the Union, they have to set up new governments; they have to write new constitutions.

ARABLOUEI: State constitutions, which Congress declared needed to be voted on in elections that included Black men as voters.

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ARABLOUEI: The Reconstruction Act of 1867 divided the Confederate states up into military districts, required that a new government be elected by male voters of all races and sent in federal troops who provided protection for Black men heading to the polls.

BURTON: It was one of the most dramatic moments ever, I think. You have going in mass African Americans to the very place at the courthouse where many had been whipped or their families sold, casting their ballot. What an extraordinary symbol of this new, positive liberty of democracy. Those constitutions had been the most progressive that the former Confederate states ever had and maybe some of the most progressive, in fact, the United States - any states have.

MACK: So it's Black people and Black voters who are key to getting the 14th Amendment ratified because they finally can vote when the 14th Amendment goes to the states.

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ARABLOUEI: And so the 14th Amendment gets ratified. It puts new language into the Constitution that suggested if state laws aren't upholding the rights of citizens, then the federal government can step in - an amendment created specifically to preserve the rights of Black citizens. Coming up, the country's commitment to those rights is tested.

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OKEYLA MUKUWA: This is Okeyla Mukuwa (ph) from Denver, Colo. You're listening to THROUGHLINE from NPR. Thank you.

BALONON-ROSEN: I have the first section of the 14th Amendment printed out. Would you mind reading it?

UNIDENTIFIED PERSON #14: Sure. Not at all.

UNIDENTIFIED PERSON #1: (Reading) Section 1 - all persons born or naturalized in the United States, and subject to the jurisdiction thereof...

UNIDENTIFIED PERSON #14: ...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...

UNIDENTIFIED PERSON #15: ...Of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law...

UNIDENTIFIED PERSON #16: ...Nor deny to any person within its jurisdiction equal protection of the laws.

BALONON-ROSEN: All right. Do you know what any of that means?

UNIDENTIFIED PERSON #16: Yeah. We have a system here. I mean, we're a constitutional republic. I like to think of the Constitution as, it doesn't necessarily just limit the government, but it also affirms the rights of its citizens.

MACK: You know, the 14th Amendment gets ratified in 1868, but it's not clear, kind of, what it really means. Because the 14th Amendment does use this broad language. What do privileges or immunities mean? What is equal protection of the law mean? What does due process of law mean? It could mean a lot, or it could mean a little.

ARABLOUEI: With these broad terms, the 14th Amendment seemed to usher in a new era for the country. It didn't just lay out those vague terms as rights citizens were entitled to. It also gave Congress the power to make sure states weren't taking those rights away.

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ARABLOUEI: The next thing to figure out was what that looked like in practice.

To me, this seems like such a - like, a radical assertion of federal power, like, given where the balance of power was up to that point. And it says something in his second sentence clearly speaking to that moment, which is no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. So, I mean, they're basically saying no state can make a law that takes away someone's rights and privileges.

MACK: Yes. The 14th Amendment is doing something that the original Constitution didn't do. You know, it's applying basic rights to states. So it's trying to say there's something called privileges or immunities. And those privileges and immunities will apply all over the United States, no matter what state you're in, no state or no local government can take away these privileges or immunities, which is something that the original Constitution did not do.

ARABLOUEI: If you took that - like, let's say an alien came to Earth, like, in 300 years after, you know, humanity's gone, finds this engraving of the 14th Amendment. How would they understand that this was about newly emancipated Black Americans in the Southern U.S.? Because it's so vague. Like, what I'm really asking about is why the vagueness of this language?

MACK: Yeah. Well, the 14th Amendment is a constitutional provision. So Congress goes to write a constitutional amendment. They can't just say you will give Black people equal rights to white people. So the Constitution has to have principles. So that's why the 14th Amendment has very broad principles. But it's also got things that are very specific. So 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. That is a direct response to the U.S. Supreme Court's ruling in Dred Scott, the infamous Dred Scott decision, which held that Black people could not be citizens of the United States or of any state. So the first part of the 14th Amendment is directly overruling Dred Scott. But it's also establishing a principle because the original constitution does not define who's a citizen.

ARABLOUEI: Now, once the amendment is passed and ratified and becomes, you know, a part of the Constitution, does that actually make a material difference in the life of Black Americans, let's say in, like, Tennessee or Mississippi or other states where it was particularly bad - the situation was especially bad after the Civil War?

MACK: The problem with constitutional amendments is they're not self-executing. So what's really making a difference for Black people in the South is the presence of the Union Army. There's somebody there to protect their rights. The fact that they can vote, right? So they're in a position to protect their own rights. So the 14th Amendment by itself doesn't make a difference, but it's an aspiration that there should be equality throughout the country without regard to race.

ARABLOUEI: But not everyone was on board with that because the 14th Amendment, it suggested a big shift in the way power works in the U.S.

BURTON: So now the federal government is supposedly over the states. The states are subject to the federal government. It is a total re-shifting, a different direction for the country because it reorders the state and federal government relations. And this was a very hard thing for the Supreme Court to shift their thought from the old federalism of the states to the new. People will read the First and Second Amendments as broadly as they can be read. And they are reading the 14th Amendment as narrowly as they can.

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MACK: One early case with the Supreme Court signaling that it's narrowing the scope of the 14th Amendment, although it's technically deciding something else, there's this case called Blyew v. United States, which involved the murder of a Black family in Kentucky after a Democratic Party rally. And one of them gives testimony before dying. And then there's a young girl who also gives testimony.

ARABLOUEI: But Kentucky didn't allow Black people to testify against white people.

MACK: So you can't convict these people.

ARABLOUEI: Wow.

MACK: But Congress understood that exactly that was the case. So in the Civil Rights Act of 1866, which Congress actually did reenact after the 14th Amendment was passed, just to make sure that people understood that this was done according to the 14th Amendment power, it allowed cases to be brought into federal court when the people affected couldn't vindicate their rights in state court. So you might think, oh, wow, this is exactly what the Black family that's been murdered needs.

ARABLOUEI: Right.

MACK: And it goes up to the U.S. Supreme Court, and the U.S. Supreme Court has to interpret a couple of words in one of the civil rights laws. And so to get into federal court, you have to be what's called an affected person. Well, what the Supreme Court rules is that since the Foster family had been killed, they are not affected persons because they're not in court.

ARABLOUEI: Wow.

MACK: So therefore, their murderers can't be prosecuted in federal court. And of course, they can't be prosecuted in state court because Black people can't testify against white people.

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ARABLOUEI: Laws have now changed, but that ruling essentially set up a catch-22. To have standing in federal court, to be a, quote, "affected person," the ruling said you had to be in court. But if you were so affected by a crime like murder that you were, well, dead, it was kind of impossible to show up - so basically, no recourse in federal court, no way for murdered Black people to get justice. Even though this case wasn't technically about the meaning of the 14th Amendment, it's still a signal from the court about what was to come.

MACK: So really early on, the Supreme Court is signaling, OK, you know, the 14th Amendment might have empowered Congress to enact a statute that gives a lot of power to bring cases in federal court precisely when the state courts are not going to be responsive to Black people. And the Supreme Court is construing that very narrowly. It's going out of its way to say that the 14th Amendment did very little.

ARABLOUEI: One case after another would start narrowing the power of the 14th Amendment and the role of the federal government to intervene in state matters. In the 30 years after the 14th Amendment is ratified, the court shoots down a group of civil rights cases. They shoot down another case saying poll taxes and literacy tests discriminate. They let state laws mandating segregation stand. Time after time, the court essentially says, no, no, actually, you can't use the 14th Amendment to stop discriminatory laws or racist violence.

The Supreme Court's decisions to narrow the 14th Amendment are having a direct impact, then, on the lives of Black people in the South because it's empowering the governments there to basically reinstate kind of white power systems and structures that they were trying to put in place right after the Civil War. They're trying to kind of revert life back to the way it was before emancipation and enfranchisement and all that.

MACK: Yes. And I think what the Supreme Court says matters. It matters directly because it's ruling that you can't prosecute these kinds of cases of racially motivated violence, but it's also signaling that it's really not going to intervene. But, you know, I'd also say the Supreme Court, in that instance, is very much in tune with the rest of the country. You know, by the middle of the 1870s, the entire country is pulling back from Reconstruction. You know, many white Northerners were sort of tired of it and really lose the will to put in the effort to defend basic Black rights in the South and nationwide. So the court's doing it, but also, the rest of the country is moving to that position as well.

BURTON: What you have built during Reconstruction is something that - I like to say to people, it should have worked, except for the violence and terror, the lack of rule of law. You had built with the 13th, 14th Amendment, with the Enforcement Act of 1870, the Ku Klux Act protection so that people could be prosecuted for not living up to the 14th Amendment. It really fascinates me 'cause you had built a wall of protections, legal protections, so that prosecutions could come about. And then secondly, Blacks had the vote, so they could advocate for themselves and have a voice at the table and shape policy. And so it's the undoing of all of this that really, you know, comes about Reconstruction.

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BURTON: I use the analogy of a brick wall or stone wall. And each one of those stones - little by little, the laws are read as narrowly as they can. They take that stone out, and then you lose, of course, that protection.

ARABLOUEI: As federal protections via the 14th Amendment shrink, it becomes clear they would offer little help to Black victims of racial violence.

BURTON: There had been a massacre of between - there were three whites killed, but basically somewhere between 60 and 150 African Americans killed.

MACK: This is what's called the Colfax massacre, which happens on Easter Sunday, 1873, which a group of whites murder Black men who had gathered in the Grant Parish courthouse after a disputed election, right? So there's an election. There's a lot of dispute about who won. Elections are very violent in the aftermath of the Civil War in the South.

ARABLOUEI: Right.

MACK: Lots of violence against Black people to get Black people out of politics, right? We will murder you to keep you from organizing politically. And so you think, well, this is precisely what the 14th Amendment was supposed to protect. So the murderers are indicted in federal court and they are prosecuted.

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MACK: And the case goes up to the U.S. Supreme Court.

BURTON: And the Supreme Court comes back and says that this white person cannot be convicted because the whites involved were not part of the state.

ARABLOUEI: The court rules even though the 14th Amendment is on the books, prosecuting an individual for a state crime - like murder - that's not on the federal government's turf. The 14th Amendment, they say, is about stopping discriminatory state laws and state actors, like police.

BURTON: And that's - that is literally a signal. When this ruling came down that you could kill people, that is, Black people, particularly Black leaders, it was like an open invitation to kill people that were leading for Black rights or fighting for Black rights. Reconstruction did not end all at one time. It was one law after another, after another, being read as narrowly as it could, disadvantaging minorities.

MACK: Potentially the 14th Amendment is a big deal. It's a big change in the allocation of power between the states and the federal government, and allows the U.S. Constitution and federal law to protect basic rights. And the Supreme Court's saying, well, no, it's not so big a change.

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ARABLOUEI: Despite the promise of the 14th Amendment, case after case showed the cold reality that a system built on white supremacy would continue to prevail. Coming up, the 14th Amendment would continue to shrink until the court starts to swing the other way.

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JOE MCKINNEN: Hi. My name is Joe McKinnen (ph), and you're watching THROUGHLINE from NPR.

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MACK: By the 20th century, the 14th Amendment had been mostly rendered useless for African Americans.

ARABLOUEI: No big case destroyed the 14th Amendment. Instead, it was more like death by a thousand cuts. Case after case had limited how far it could actually go. But things were about to change.

MACK: The NAACP, the National Association for the Advancement of Colored People, begins to see that, well, maybe the 14th Amendment might be useful and, you know, a lot of times, we've been using it defensively. We should try to use it offensively.

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MACK: So by the 1930s, principally, two lawyers begin to do this for the NAACP. Thurgood Marshall, of course, who would become the first Black Supreme Court justice several decades later. And his mentor, a man named Charles Hamilton Houston, the vice dean of Howard Law School, which produced more Black lawyers than any other school in the country, including Thurgood Marshall, they began to bring these cases, challenging school equality in the South. And for a long time this - the NAACP had gotten the court to issue these rulings that were all within separate but equal.

So the state of Missouri has a law school, and it doesn't admit Black people, but they'll give you a scholarship to go outside the state to get a law school education if you're Black, and the Supreme Court says, well, no, no, no, you know, you can't do that. You've got to actually admit them to the white law school or build an equivalent Black law school. And so, you know, there had been a bunch of those cases that went to the Supreme Court. But right around 1950, the NAACP starts to shift and really starts to begin to take segregation head-on.

ARABLOUEI: And one of its biggest cases would start in a rural school district in Clarendon County, S.C.

BURTON: The county provided 30 school buses, all for whites, none for Blacks. They petitioned these Black parents. They petitioned for a school bus. They were denied. Black children, some had to leave way before light to walk seven miles or so. So they bought a used school bus that had actually been used for a chicken coop, and they fixed it up to run. And so then they petitioned for gas money. Again, the whites refused.

ARABLOUEI: So with the help of the NAACP, families started yet another petition to the school board of trustees, calling for equal everything - equal educational advantages, and equal facilities.

BURTON: They are boycotted. People who had always been able to get loans to do their farm or people loan them farm equipment, they're fired. They lose everything. Harry Briggs, who's the lead plaintiff, has to leave the state to get work.

ARABLOUEI: When Thurgood Marshall brings the case to federal court, it goes to South Carolina District Judge Julius Waties Waring, whose views on race and segregation had been evolving. And Waring says there's already been enough cases about separate but equal. So...

BURTON: Why don't you tackle the question of segregation? It will go to a federal court. Three judges. I'll be one of them. You will not win, but it will go straight to the Supreme Court. So Thurgood Marshall goes back and says this is very risky and particularly puts you on the line. And they say unanimously to him in a church meeting, we've been waiting for you to get here for this. This is what we want.

ARABLOUEI: The families would lose their case in federal court, just like Judge Waring said. But Briggs v. Elliott would go to the Supreme Court and was one of five school segregation cases from all over the country that would become Brown v. Board Of Education in 1954.

BURTON: The Brown decision is almost word for word out of Waring's federal dissent decision.

UNIDENTIFIED ACTOR #2: (As Justice Earl Warren) Judge Julius Waties Waring dissenting Briggs v. Elliott. Segregation in education can never produce equality. It is an evil that must be eradicated. Segregation is per se inequality.

In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Supreme Court Chief Justice Earl Warren ruling in Brown v. Board Of Education.

ARABLOUEI: In its 9-0 unanimous decision, the Supreme Court found that laws allowing for segregated schools violated the 14th Amendment's guarantee of equal protection.

MACK: Brown is really a turning point. It really does signal that the 14th Amendment will be an affirmative guarantee of national rights, not just for Black people, but for everybody.

ARABLOUEI: I think a lot of people, to your point right there, I want to dig into a little bit more. I think most people just think about Brown v. Board in terms of school segregation. But what does it mean to really think of it as a 14th Amendment case?

MACK: You know, Brown, it looks like it's just about schools. And then, like, if you read the Supreme Court's language, it seems to be about education. Does segregated education serve Black children poorly? But it quickly becomes very clear that it's about much more than that.

UNIDENTIFIED ACTOR #2: (As Justice Earl Warren) State laws permitting or requiring such segregation denies to Negro children the equal protection of the laws guaranteed by the 14th Amendment.

MACK: That really does mean that a variety of government actions that treat people differently based on race are going to come within the 14th Amendment. And the Supreme Court had historically not indicated that that was the case at all.

ARABLOUEI: Since then, the Supreme Court has used the 14th Amendment in a number of landmark cases, rulings that stop states from barring people's rights to interracial marriage, gay marriage, birth control, abortion, privacy, public defense, public education. They've all come down to the 14th Amendment.

I can't help but notice a pattern here though, which is so much of the application of the 14th Amendment depends on who is on that court.

MACK: So the 14th Amendment has always been up for grabs, and it's always depended on, you know, what the political will of the country was with regard to basic equality, which justices were on the court and what they believed.

ARABLOUEI: I have to be honest, for many of us living in this system that we have today, the confusion is that what seems to be clear on paper and in writing can be applied and can be, like, distorted in very fancy intellectual ways to mean something completely different. And that's a frustration I think I'm channeling from a lot of the public, I think, that see these things and feel like, oh, well, is there really principles in the Constitution, or are we just dealing with the whims of the political moment in the context that in which it's being argued?

MACK: Well, you know, I would say that there is some combination of principle and the influence of the political moment. The 14th Amendment has very broad language in it. Privileges or immunities of citizens of the United States, due process of law, life, liberty or property, equal protection of the laws. Those phrases can mean different things. I mean, just to take one case, Plessy v. Ferguson, where the Supreme Court now infamously upheld a railroad segregation law in Louisiana.

You might say, isn't railroad segregation discrimination? And the Supreme Court could sort of say no. You know, the pro-segregation argument was that this isn't discrimination or a denial of equality at all. Black people have their own car. There was a broad principle, Black equality. I mean, that was the purpose of the 14th Amendment. Everybody understood that's what it meant. But what does Black equality mean? So there's a principle, Black equality.

ARABLOUEI: Right.

MACK: Very clear. But, you know, how that principle applies, what do we conclude from that, you know, we've argued about that. And things that to us seem specious, like that a separate car is equality, can make sense to nearly the entire composition of the Supreme Court in 1896.

(SOUNDBITE OF MUSIC)

ARABLOUEI: Given what you've seen in the past, how are you feeling about the future of the 14th Amendment, how it's been applied and where we might be going? Of course, no one can predict, but are you feeling pessimistic or optimistic?

BURTON: As I look at the Supreme Court today, it's the only time I know when the Supreme Court is out of step with the nation. Young people do not want to have discrimination. They do not want to have other people discriminated against, whether it's voting, going to school or housing. And I really believe that the court is out of - really out of step. Look at Roe v. Wade overturning with Dodd. I think it's out of step.

(SOUNDBITE OF MUSIC)

BURTON: The courts, our legal system, created distinctions and laws that literally created a group of people to be discriminated against, not just enslavement, but all the way through. And when we do get discouraged, there's one other thing - we have had 12 generations of laws that enforced inferiority on a group of people and also forced whites to not associate with them through segregation in many of the states. We've really only had two generations to address this issue.

So if you think of it that way, to do a little more positive, we've actually come a long way. I don't want to deny that at all. So - but if - so when you get discouraged as I do, I tell my students, count to 12 and count to two and see the difference about how long it's going to take through the 14th Amendment to overcome all those generations that we, in fact, enforced and made through the law, racism a part of our laws, legal system and our society.

(SOUNDBITE OF MUSIC)

MACK: The 14th Amendment, it comes around and around and around, right? This thing that we thought was about the 1860s, but no, it actually comes back around in 2024. So that's coming again.

(SOUNDBITE OF MUSIC)

MACK: But the challenge is, well, has it really served its core purpose, which is to give basic rights to African Americans? And that's been a continuing challenge.

(SOUNDBITE OF MUSIC)

ABDELFATAH: And that's it for this week's show. I'm Rund Abdelfatah.

ARABLOUEI: I'm Ramtin Arablouei, and you've been listening to THROUGHLINE from NPR.

(SOUNDBITE OF MUSIC)

ABDELFATAH: This episode was produced by me...

ARABLOUEI: And me and...

LAWRENCE WU, BYLINE: Lawrence Wu.

JULIE CAINE, BYLINE: Julie Caine.

ANYA STEINBERG, BYLINE: Anya Steinberg.

CASEY MINER, BYLINE: Casey Miner.

CRISTINA KIM, BYLINE: Cristina Kim.

DEVIN KATAYAMA, BYLINE: Devin Katayama.

BALONON-ROSEN: Peter Balonon-Rosen.

IRENE NOGUCHI, BYLINE: Irene Noguchi.

ARABLOUEI: Fact-checking for this episode was done by Kevin Volkl. The episode was mixed by Josh Newell. Thanks to Johannes Doerge, Kara West, Edith Chapin and Collin Campbell. And special thank you to Lawrence Wu, Peter Balonon-Rosen and Devin Katayama for their voiceover work. Also, thank you to Brett from Birmingham, Jorge from New York, Matt from South Carolina, Tracey and Laney from Indianapolis, Tanya from Illinois, James from Buffalo, Sherrilyn from the U.K. and Sean from New Jersey for answering our questions in Times Square.

(SOUNDBITE OF MUSIC)

ABDELFATAH: Music for this episode was composed by Ramtin and his band, Drop Electric, which includes...

ANYA MIZANI: Anya Mizani.

NAVID MARVI: Navid Marvi.

SHO FUJIWARA: Sho Fujiwara.

(SOUNDBITE OF MUSIC)

ARABLOUEI: And finally, if you have an idea or like something you heard on the show, please write us at throughline@npr.org.

(SOUNDBITE OF MUSIC)

ABDELFATAH: Thanks for listening.

(SOUNDBITE OF MUSIC)

Copyright © 2024 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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