Tonight’s Timeframe . . . Reconstruction → 1865 - 1877Gilded

Tonight’s Timeframe . . .
Reconstruction → 1865 - 1877
Gilded Age → 1870s - 1900
Progressive Era → 1890s - 1920
American Imperialism → 1880s - 1914
World War I → 1914 - 1918
The Roaring Twenties → 1920 - 1929
Great Depression & New Deal → 1929 - 1941
World War II → 1941 - 1945
American Legal History II
Citizenship and the 14th Amendment
What is the role of law in society?
How has the definition of citizenship changed over the course
of American history? WHY?
Did the 14th Amendment bring about a revolution in citizenship
in America?
Citizenship - Background
Is citizenship constitutional or statutory?
Statutory → Naturalization Acts

Constitutional
Is birthright citizenship territorial or national?
Jus Soli (Soil) vs. Jus Sanguinis (Blood)
Subjects vs. Citizens
Dred Scott v. Sandford (1857) → Context
Ongoing Concerns:
Northern enthusiasm
Southern opposition
Enforcement & Reconciliation
Previous denial of citizenship:
Dred Scott v. Sandford (1857)
Army Surgeon
Residence in free state/territory
7 - 2 Decision:
Majority Opinion written by Chief Justice Roger Taney
Excerpts
How did the Dred Scott decision restrict citizenship?
How did the Dred Scott decision reflect Antebellum America?
How might the Dred Scott decision have impacted American
society?

14th Amendment → Citizenship Clause
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.
Clarifying Citizenship Under the 14th Amendment
Elk v. Wilkins (1884) - Context
Indian Wars, Expansion, Manifest Destiny
“Going the way of the buffalo . . .”
Warfare and Reservations
1871 → Treaty system eliminated → Railroads
Assimilation → National Unity → Boarding Schools
Dawes Act (1887)
Tribal Land → Individual Parcels
Elk v. Wilkins (1884)
John Elk - Born Winnebago on a Reservation

Renounced Tribal Allegiance → Claimed U.S. Citizenship
Attempted Voter Registration in Omaha
Denied by Voting Registrar (Wilkins)
Elk files suit based on the Citizenship Clause of the 14th
Amendment.
Decision:
7 - 2; Majority Opinion written by Justice Gray
Excerpts
Indian Citizenship Act of 1924
How did the Elk decision restrict citizenship?
How did the Elk decision reflect 19th century America?
How might the Elk decision have impacted American society?
19th Century Chinese Immigration & Labor
Declining American Economy and opposition
Chinese Exclusion Act (1882)
Geary Act (1892)
"Because the first duty of governments is to their own citizens,
and securing to them protection and enjoyment of their life and
liberty the consideration of the effect on other people is not of
consequence."
U.S. v. Wong Kim Ark (1898) - Context

U.S. v. Wong Kim Ark (1898)
Born in San Francisco to Chinese Parents - 1873
Parents returned to China - 1890
Visits parents in China twice - 1890 & 1894/1895
Readmitted in 1890, denied in 1895
Decision:
6 - 2 ; Majority Opinion written by Justice Gray
Would citizenship of persons of European descent also be
jeopardized?
Excerpts
“Subject to the jurisdiction thereof . . .”
How did the Wong Kim Ark decision restrict citizenship?
How did the Wong Kim Ark decision reflect 19th century
America?
How might the Wong Kim Ark decision have impacted
American society?
Western Territorial History
Spanish-American War
America as a Colonial Power
Philippine-American War
Plessy v. Ferguson (1896)
Post-War Questions:

American Identity
Constitution and the American Empire
Roosevelt Corollary
Progressivism, Race, & Society
Racial “Threat” & Fragile post-Reconstruction Order
Racial implications of expansion?
Downes v. Bidwell (1901) - Context
William Howard Taft on Filipinos: The great majority were
inferior to even “the most ignorant negro,” “utterly unfit for
self-government,” and would need “the training of fifty or one-
hundred years before they shall even realize what Anglo-Saxon
liberty is.”
James Bradley Thayer: The federal government should “beware,
at every step, promising to the islands . . . any place in the
union” as they would then play a role in governing the entire
nation.
Anti-Imperialist Pamphlet: “The unwisdom of admitting an
inferior race to common citizenship without reference to their
capacity for self-government has been demonstrated . . . The
negro problem in the south is due to the folly of not making
their admission to citizenship dependent on their fitness.”

The Insular Cases (1901)
Issues → Varying aspects of the relationship between the
United States and the territories acquired after the Spanish-
American War.
Downes v. Bidwell → Should Import Duties be charged to
goods shipped from Puerto Rico to the U.S.?
Gonzalez v. Williams (1904) → Were Puerto Ricans
immigrants?
Other Questions:
Were Puerto Ricans citizens?
Was Puerto Rico incorporated into the Union?
Foraker Act (1900) → Citizens of Spain or Puerto Rico (w/ U.S.
Protection)
The Jones-Shafroth Act (1917) → U.S. citizenship after April,
1898; est. gov’t.
Elk - Birth within territory insufficient
To whom does the individual owe allegiance?
Elk . . .
Children of an Ambassador . . .
Puerto Ricans . . .
Elk, Puerto Ricans, and Independent Sovereignty
Additional citizenship designations?
Comparing Elk & the Insular Cases
Ark - Citizenship based upon birth within the allegiance of the
U.S., regardless of race.
Ct. did not address native-born insular populations in Ark.
Justices did not intend to cover “non-white” races residing in

colonies in Ark.
Ark - While the language of the Citizenship Clause prevented
the Supreme Court from excluding from citizenship persons of
"alien races" born in the continental United States, the Court
could hold the clause not to apply to offshore territories that
were geographically distinguishable from the "United States.”
Comparing Wong Kim Ark & the Insular Cases
Regan v. King (1943) - Context
Pearl Harbor
Executive Order 9066 → Japanese Relocation and Internment
Anti-Japanese Hysteria
Xenophobia
Regan v. King (1943)
Native Sons of the Golden West & American Legion brought
suit (John Regan)
Cameron King → Registrar of Voters in SF
Larger Purpose → Overturn Wong Kim Ark
Japanese American Citizens League
Suit denied in District Ct. and Circuit Cts. of Appeal.

Trends in Constitutional Citizenship
What are some contemporary issues relating to Constitutional
citizenship?
LOOKING AHEAD → Constitutional application to territory
AND those who America exercises authority over?
Tonight’s Timeframe . . .
Reconstruction → 1865 - 1877
Gilded Age → 1870s - 1900
Progressive Era → 1890s - 1920
American Imperialism → 1880s - 1914
World War I → 1914 - 1918
The Roaring Twenties → 1920 - 1929
Great Depression & New Deal → 1929 - 1941
World War II → 1941 - 1945
14th Amendment and Due Process
To what extent did the 14th Amendment change the role of law
in society?

Did the 14th Amendment make the federal government the
"primary authority over the states and the rights of individuals?
The Bill of Rights
1st Amendment - Religion, Speech, Press, Assembly, Petition
for Redress
2nd Amendment - Right to bear arms
3rd Amendment - No quartering of soldiers
4th Amendment - Against unreasonable search and seizure
5th Amendment - Grand Jury, Double Jeopardy, Due Process,
Eminent Domain
6th Amendment - Speedy and Public Trial by Jury,
Confrontation, Counsel

7th Amendment - Trial by Jury in Civil Cases
8th Amendment - Against cruel and unusual punishment &
excessive bail
Due Process - Background
Magna Carta (1215)
NY State Constitution
5th Amendment:
“nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law;”
Deprivation:
Life, Liberty, and Property
Fair procedures → Accurate (not preferred) Results
Trust in Government
Due Process - Types
“Selective Incorporation” of the Bill of RIghts - 1920s, on
Procedural → Process/Procedures; If gov’t acts in ways that
violate prescribed procedures for administering law, courts
strike the action down.
Substantive → Substance/Laws, Government Action; If
government deprives “life, liberty, and property,” in law or
action, despite established procedures in ways that are arbitrary
and unreasonable, court will strike action down.

Due Process Test:
End (State/National Constitutional Goals) of the Law and Means
(reasonable and suitable) to achieve it need to be considered.
If end and means are outside Constitutional bounds, law/action
is unconstitutional
Due Process Incorporation - Criminal Cases
Before and After 14th → States and Bill of Rights Ambiguity
Hurtado v. California (1884)
Lochner v. NY (1905)
Gitlow v. NY (1925)
Malloy v. Hogan (1959)
Mapp v. Ohio (1961)
Gideon v. Wainwright (1963)
Miranda v. Arizona (1966)
McDonald v. Chicago (2010)
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.

14th Amendment
Due Process Incorporation - Hurtado v. California (1884)
Affair and fatal shooting
CA Indictment → No Grand Jury
Did the 14th Amendment make the 5th Amendment Grand Jury
indictment applicable to state criminal trials?
7 - 1 Decision:
Excerpts
Due Process Incorporation - Lochner v. NY (1905)
Context:
Gilded Age → Progressive Era
Labor Law
Issues:
Bakery Owner → NY Bakeshop Act → 2nd Offense
Police Power - state enforcement of laws
Substantive Due Process
Ushers in “Lochner Era”
5 - 4 Decision:
Excerpts

Due Process Incorporation - Gitlow v. NY (1925)
Context:
Red Scare
Anti-Government Publication (1919)
WW1 - “Clear and Present Danger”
NY “Criminal Anarchy” Statute
Does the First Amendment prevent a state from punishing
political speech that directly advocates the government's violent
overthrow?
7 - 2 Decision:
Step toward incorporation
Did the 14th Amendment make the federal government the
"primary authority over the states and the rights of individuals?
To what extent did the 14th Amendment change the role of law
in society?
14th Amendment - Equal Protection

14th Amendment (1868)
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. — That to secure these rights,
Governments are instituted among Men, deriving their just
powers from the consent of the governed.
Equal Protection - Background
From “created equal” to “equal protection”
Laws that made distinctions based on race or color?
Goal → Destroy the black codes
Congressional (CR Acts) versus Constitutional non-
discrimination.
Some acceptance of separate but equal at adoption.
What type of equality → Civil or Social? Political?

Integrated Transportation? → RR Co. v. Brown (1873)
Education?
Leveling
Leap of Black Education
Rational Basis test of discriminatory laws
Equal Protection - Background
Would “separate but equal” spread?
New England view of schools in the minority
What if whole communities accepted?
Miscegenation?
Framers of 14th on enforcement via legislation.
To what extent was the equal protection of the laws upheld in
the United States by the turn of the 20th century?
US v. Harris (1883)
Civil Rights Cases (1883)
US v. Cruickshank (1872)
What was at stake in the judicial interpretation of the equal
protection clause?

Plessy v. Ferguson (1896) - Context
Segregation, Separate Facilities, & Jim Crow Laws
1890 - Separate Car Act
Committee of Citizens
Homer Plessy → Test Case
East Louisiana Railroad Involvement
Plessy initially convicted.
Plessy v. Ferguson (1896) - Issues and Decision
Does the Separate Car Act violate the 14th Amendment?
7 - 1 Decision:
14th Intended to bring forth absolute equality
Separate did not mean inferior
Segregation did not mean unlawful discrimination.
Era of “Separate But Equal”
Implications:
Segregation entrenched, protected at the highest legal level
Segregation flows north
Excerpts →
Lum v. Rice (1927) - Context & Decision
Chinese Exclusion Acts
Labor “replacement” in the South → Mississippi
Immigration Quotas
Rise of the KKK and xenophobia
Unanimous Decision:
Available segregated schools?

Chinese classified among “colored races”
Within discretion of the state
Brown v. Board of Education (1954) - Context
Plessy (1896)
Education → Separate but Equal
Mendez v. Westminster (1947)
Social Science & Inferiority
Scholarly Work:
“The Race Question”
Clark Doll Test
Cold War American image.
Kenneth and Mamie Clark Doll Experiment
Brown v. Board of Education (1954) - Issues and Decision
13 Families → NAACP Recruitment
Attempted enrollment
Male at the head of filing
District Ct. finds for Board, upholding Plessy
Supreme Ct.
Review of Brown and four other cases
Justice Department’s Amicus Brief

Major Question: Did the Fourteenth Amendment's Equal
Protection Clause prohibit the operation of separate public
schools for whites and blacks?
Unanimous Decision:
Stalling and Building Consensus
Psychological, Social, and International
No State Shall . . .
Regents of University of California v. Bakke (1978) - Context
Inclusivity and Diversity
Eliminate discrimination → Active Desegregation
Integration methods left to the states w/ lower court supervision
Civil Rights Act of 1964 → Title VI
Public Schools vs. Public Universities → Highly Selective,
Graduate, Professions?
Affirmative Action Programs
1970 → Swann v. Charlotte-Mecklenburg BOE
1974 → DeFunis v. Odegaard (1970 - 1974)
Civil Rights Act of 1964 → Title VI
Prohibition against exclusion from participation in, denial of
benefits of, and discrimination under federally assisted
programs on ground of race, color, or national origin
No person in the United States shall, on the ground of race,

color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.
Regents of University of California v. Bakke (1978) - Issues
and Decision
Allan Bakke - Medical School Applicant
Twice Rejected from UC Davis
“Slots” vs. Scores
Bakke filed suit
Major Question → Did the University of California violate the
Fourteenth Amendment's equal protection clause, and the Civil
Rights Act of 1964, by practicing an affirmative action policy
that resulted in the repeated rejection of Bakke's application for
admission to its medical school?
8 - 1 Decision (Plurality Opinion):
Quotas →
Race as criteria →
Bush v. Gore (2000) - Context
2000 Presidential Election
George Bush
Al Gore
Narrow margin
Late/Contested Florida reports
Paper Ballots and Hanging/Dimpled Chads
9000 in Miami-Dade
FL Supreme Court → Recount

Bush v. Gore (2000) - Issues and Decision
Bush and Cheney appeal to Supreme Court
Stay of FL Supreme Ct. decision
Review and stay on 12/9
Do manual recounts violate the Due Process and Equal
Protection Clauses of the Constitution?
7 - 2 Decision:
Equal Protection
Excerpts
5 - 4 Decision:
Recount Date
12/18 → Electors
Obergefell v. Hodges (2015) - Context
Federalism and Marriage Law
Marriage Bans
Refusal to recognize other jurisdictions . . .
Baker v. Nelson (1971)
DOMA (1996)
US v. Windsor (2013)
Civil Rights Support
Over 1000 rights and protections
Lawrence v. Texas (2003)
State efforts
Public Opinion →

Since 2011
Since 2015
Public opinion of same-sex marriage in the United States of
America by state/district/territory:
Majority support same-sex marriage — 80 to 89%
Plurality support same-sex marriage — 40 to 49%
Plurality oppose same-sex marriage — 40 to 49%
Majority oppose same-sex marriage — 50 to 59%
No recent polling data
State laws regarding same-sex marriage in the United States
prior to Obergefell v. Hodges
Same-sex marriage legal
Same-sex marriage ban overturned, decision stayed
indefinitely
Same-sex marriage banned where federal circuit court has
found similar bans unconstitutional
Same-sex marriage banned
Same-sex marriage legality complicated
Obergefell v. Hodges (2015) - Issues and Decision
Varying suits
Challenge state laws
Lower court inconsistency

Does the Fourteenth Amendment require a state to license a
marriage between two people of the same sex?
Does the Fourteenth Amendment require a state to recognize a
marriage between two people of the same sex that was legally
licensed and performed in another state?
5 - 4 Decision:
Excerpts
How did the evolving judicial interpretation of the 14th
Amendment change the relationship between state and federal
governments?
Excerpts from the Dissenting Opinion in Hurtado v. California
(1884) by Justice Harlan
My brethren concede that there are principles of liberty and
justice lying at the foundation of our civil and political
institutions which no State can violate consistently with that
due process of law required by the Fourteenth Amendment in
proceedings involving life, liberty, or property. Some of these
principles are enumerated in the opinion of the court. But, for
reasons which do not impress my mind as satisfactory, they
exclude from that enumeration the exemption from prosecution,
by information, for a public offence involving life. By what
authority is that exclusion made? Is it justified by the settled
usages and modes of procedure existing under the common and
statute law of England at the emigration of our ancestors, or at
the foundation of our government? Does not the fact that the
people of the original States required an amendment of the

national Constitution, securing exemption from prosecution, for
a capital offence, except upon the indictment or presentment of
a grand jury, prove that, in their judgment, such an exemption
was essential to protection against accusation and unfounded
prosecution, and, therefore, was a fundamental principle in
liberty and justice? By the side of that exemption, in the same
amendment, is the declaration that no person shall be put twice
in jeopardy for the same offence, nor compelled to criminate
himself, nor shall private property be taken for public use
without just compensation. Are not these principles fundamental
in every free government established to maintain liberty and
justice? If it be supposed that immunity from prosecution for a
capital offence, except upon the presentment or indictment of a
grand jury, was regarded at the common law any less secured by
the law of the land, orany less valuable, or any less essential to
due process of law, than the personal rights and immunities just
enumerated, I take leave to say that no such distinction is
authorized by any adjudged case, determined in England or in
this country prior to the adoption of our Constitution, or by any
elementary writer upon the principles established by Magna
Charta and the statutes subsequently enacted in explanation or
enlargement of its provisions.
But it is said that the framers of the Constitution did not
suppose that due process of law necessarily required for a
capital offence the institution and procedure of a grand jury,
else they would not, in the same amendment, prohibiting the
deprivation of life, liberty, or property, without due process of
law, have made specific and express provision for a grand jury
where the crime is capital or otherwise infamous; therefore, it is
argued, the requirement by the Fourteenth Amendment of due
process of law in all proceedings involving life, liberty, and
property, without specific reference to grand juries in any case
whatever, was not intended as a restriction upon the power
which it is claimed the States previously had, so far as the
express restrictions of the national Constitution are concerned,
to dispense altogether with grand juries.

When the Fourteenth Amendment was adopted, all the States of
the Union, some in terms, all substantially, declared, in their
constitutions, that no person shall be deprived of life, liberty, or
property, otherwise than "by the judgment of his peers, or the
law of the land," or "without due process of law." When that
Amendment was adopted, the constitution of each State, with
few exceptions, contained, and still contains, a Bill of Rights
enumerating the rights of life, liberty and property which cannot
be impaired or destroyed by the legislative department. In some
of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama,
Illinois, Arkansas, Florida, Mississippi, Missouri, and North
Carolina, the rights so enumerated were declared to be
embraced by "the general, great, and essential principles of
liberty and free government;" in others, as in those of
Connecticut, in 1818, and Kansas, in 1857, to be embraced by
"the great and essential principles of free government." Now it
is a fact of momentous interest in this discussion that, when the
Fourteenth Amendment was submitted and adopted, the Bill of
Rights and the constitutions of twenty-seven States expressly
forbade criminal prosecutions, by information, for capital
cases;[*]while, in the remaining ten States, they were impliedly
forbidden by a general clause declaring that no person should be
deprived of life otherwise than by "the judgment of his peers or
the law of the land," or "without due process of law.[**]" It
may be safely affirmed that, when that Amendment was
adopted, a criminal prosecution, by information, for a crime
involving life was not permitted in any one of the States
composing the Union. So that the court, in this case, while
conceding that the requirement[p558] of due process of law
protects the fundamental principles of liberty and justice,
adjudges, in effect, that an immunity or right, recognized at the
common law to be essential to personal security, jealously
guarded by our national Constitution against violation by any
tribunal or body exercising authority under the general
government, and expressly or impliedly recognized,when he
Fourteenth Amendment was adopted in the Bill of Rights or

Constitution of every State in the Union, is, yet, not a
fundamental principle in governments established, as those of
the States of the Union are, to secure to the citizen liberty and
justice, and, therefore, is not involved in that due process of law
required in proceedings conducted under the sanction of a State.
My sense of duty constrains me to dissent from this
interpretation of the supreme law of the land.
Excerpts from the Majority Opinion in Lochner v. NY (1905) by
Justice Peckham
The question whether this act is valid as a labor law, pure and
simple, may be dismissed in a few words. There is no

reasonable ground for interfering with the liberty of person or
the right of free contract by determining the hours of labor in
the occupation of a baker. There is no contention that bakers as
a class are not equal in intelligence and capacity to men in other
trades or manual occupations, or that they are able to assert
their rights and care for themselves without the protecting arm
of the State, interfering with their independence of judgment
and of action. They are in no sense wards of the State. Viewed
in the light of a purely labor law, with no reference whatever to
the question of health, we think that a law like the one before us
involves neither the safety, the morals, nor the welfare of the
public, and that the interest of the public is not in the slightest
degree affected by such an act. The law must be upheld, if at
all, as a law pertaining to the health of the individual engaged
in the occupation of a baker. It does not affect any other portion
of the public than those who are engaged in that occupation.
Clean and wholesome bread does not depend upon whether the
baker works but ten hours per day or only sixty hours a week.
The limitation of the hours of labor does not come within the
police power on that ground.
It is a question of which of two powers or rights shall prevail --
the power of the State to legislate or the right of the individual
to liberty of person and freedom of contract. The mere assertion
that the subject relates though but in a remote degree to the
public health does not necessarily render the enactment valid.
The act must have a more direct relation, as a means to an end,
and the end itself must be appropriate and legitimate, before an
act can be held to be valid which interferes with the general
right of an individual to be free in his person and in his power
to contract in relation to his own labor.
We think that there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one to that degree
which would authorize the legislature to interfere with the right
to labor, and with the right of free contract on the part of the
individual, either as employer or employee. In looking through
statistics regarding all trades and occupations, it may be true

that the trade of a baker does not appear to be as healthy as
some other trades, and is also vastly more healthy than still
others. To the common understanding, the trade of a baker has
never been regarded as an unhealthy one. Very likely,
physicians would not recommend the exercise of that or of any
other trade as a remedy for ill health. Some occupations are
more healthy than others, but we think there are none which
might not come under the power of the legislature to supervise
and control the hours of working therein if the mere fact that
the occupation is not absolutely and perfectly healthy is to
confer that right upon the legislative department of the
Government. It might be safely affirmed that almost all
occupations more or less affect the health. There must be more
than the mere fact of the possible existence of some small
amount of unhealthiness to warrant legislative interference with
liberty. It is unfortunately true that labor, even in any
department, may possibly carry with it the seeds of
unhealthiness. But are we all, on that account, at the mercy of
legislative majorities? A printer, a tinsmith, a locksmit h, a
carpenter, a cabinetmaker, a dry goods clerk, a bank's, a
lawyer's or a physician's clerk, or a clerk in almost any kind of
business, would all come under the power of the legislature on
this assumption. No trade, no occupation, no mode of earning
one's living could escape this all-pervading power, and the acts
of the legislature in limiting the hours of labor in all
employments would be valid although such limitation might
seriously cripple the ability of the laborer to support himself
and his family. In our large cities there are many buildings into
which the sun penetrates for but a short time in each day, and
these buildings are occupied by people carrying on the business
of bankers, brokers, lawyers, real estate, and many other kinds
of business, aided by many clerks, messengers, and other
employs. Upon the assumption of the validity of this act under
review, it is not possible to say that an act prohibiting lawyers'
or bank clerks, or others from contracting to labor for their
employers more than eight hours a day would be invalid. It

might be said that it is unhealthy to work more than that number
of hours in an apartment lighted by artificial light during the
working hours of the day; that the occupation of the bank clerk,
the lawyer's clerk, the real estate clerk, or the broker's clerk in
such offices is therefore unhealthy, and the legislature, in its
paternal wisdom, must therefore have the right to legislate on
the subject of, and to limit the hours for, such labor, and, if it
exercises that power and its validity be questioned, it is
sufficient to say it has reference to the public health; it has
reference to the health of the employees condemned to labor day
after day in buildings where the sun never shines; it is a health
law, and therefore it is valid, and cannot be questioned by the
courts.

Excerpts from the Dissenting Opinion in Lochner v. NY (1905)
by Justice Harlan
It is plain that this statute was enacted in order to protect the
physical wellbeing of those who work in bakery and
confectionery establishments. It may be that the statute had its
origin, in part, in the belief that employers and employees in
such establishments were not upon an equal footing, and that
the necessities of the latter often compelled them to submit to
such exactions as unduly taxed their strength. Be this as it may,
the statute must be taken as expressing the belief of the people
of New York that, as a general rule, and in the case of the
average man, labor in excess of sixty hours during a week in
such establishments may endanger the health of those who thus
labor. Whether or not this be wise legislation it is not the
province of the court to inquire. Under our systems of
government, the courts are not concerned with the wisdom or
policy of legislation. So that, in determining the question of
power to interfere with liberty of contract, the court may inquire
whether the means devised by the State are germane to an end
which may be lawfully accomplished and have a real or
substantial relation to the protection of health, as involved in
the daily work of the persons, male and female, engaged in
bakery and confectionery establishments. But when this inquiry
is entered upon, I find it impossible, in view of common
experience, to say that there is here no real or substantial
relation between the means employed by the State and the end

sought to be accomplished by its legislation.
I take leave to say that the New York statute, in the particulars
here involved, cannot be held to be in conflict with the
Fourteenth Amendment without enlarging the scope of the
Amendment far beyond its original purpose and without
bringing under the supervision of this court matters which have
been supposed to belong exclusively to the legislative
departments of the several States when exerting their conceded
power to guard the health and safety of their citizens by such
regulations as they in their wisdom deem best. Health laws of
every description constitute, said Chief Justice Marshall, a part
of that mass of legislation which
embraces everything within the territory of a State not
surrendered to the General Government; all which can be most
advantageously exercised by the States themselves.
Excerpts from the Majority Opinion in Gitlow v. New York
(1925) by Justice Sanford
The Manifesto, plainly, is neither the statement of abstract
doctrine nor, as suggested by counsel, mere prediction that
industrial disturbances and revolutionary mass strikes will
result spontaneously in an inevitable process of evolution in the
economic system. It advocates and urges in fervent language
mass action which shall progressively foment industrial
disturbances and, through political mass strikes and

revolutionary mass action, overthrow and destroy organized
parliamentary government. It concludes with a call to action in
these words:
The proletariat revolution and the Communist reconstruction of
society -- the struggle for these -- is now indispensable. . . . The
Communist International calls the proletariat of the world to the
final struggle!
This is not the expression of philosophical abstraction, the mere
prediction of future events; it is the language of direct
incitement.
The means advocated for bringing about the destruction of
organized parliamentary government, namely, mass
industrialrevolts usurping the functions of municipal
government, political mass strikes directed against the
parliamentary state, and revolutionary mass action for its final
destruction, necessarily imply the use of force and violence,
and, in their essential nature, are inherently unlawful in a
constitutional government of law and order. That the jury were
warranted in finding that the Manifesto advocated not merely
the abstract doctrine of overthrowing organized government by
force, violence and unlawful means, but action to that end, is
clear.
For present purposes, we may and do assume that freedom of
speech and of the press which are protected by the First
Amendment from abridgment by Congress are among the
fundamental personal rights and "liberties" protected by the due
process clause of the Fourteenth Amendment from impairment
by the States. We do not regard the incidental statement . . that
the Fourteenth Amendment imposes no restrictions on the States
concerning freedom of speech, as determinative of this
question.
It is a fundamental principle, long established, that the freedom
of speech and of the press which is secured by the Constitution
does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and
unbridled license that gives immunity for every possible use of

language and prevents the punishment of those who abuse this
freedom.
The defendant's brief does not separately discuss any of the
rulings of the trial court. It is only necessary to say that,
applying the general rules already stated, we find that none of
them involved any invasion of the constitutional rights of the
defendant. It was not necessary, within the meaning of.the
statute, that the defendant should have advocated "some definite
or immediate act or acts" of force, violence or unlawfulness. It
was sufficient if such acts were advocated in general terms, and
it was not essential that their immediate execution should have
been advocated. Nor was it necessary that the language should
have been "reasonably and ordinarily calculated to incite certain
persons" to acts of force, violence or unlawfulness. The
advocacy need not be addressed to specific persons. Thus, the
publication and circulation of a newspaper article may be an
encouragement or endeavor to persuade to murder, although not
addressed to any person in particular
Excerpts from the Majority Opinion in the Slaughterhouse Cases
(1873) by Justice Miller
It is that the distinction between citizenship of the United States
and citizenship of a State is clearly recognized and
established.Not only may a man be a citizen of the United
States without being a citizen of a State, but an important
element is necessary to convert the former into the latter. He
must reside within the State to make him a citizen of it, but it is
only necessary that he should be born or naturalized in the
United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or
circumstances in the individual.
We think this distinction and its explicit recognition in this
amendment of great weight in this argument, because the next

paragraph of this same section, which is the one mainly relied
on by the plaintiffs in error, speaks only of privileges and
immunities of citizens of the United States, and does not speak
of those of citizens of the several States. The argument,
however, in favor of the plaintiffs rests wholly on the
assumption that the citizenship is the same, and the privileges
and immunities guaranteed by the clause are the same.
The language is, "No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States." It is a little remarkable, if this clause was
intended as a protection to the citizen of a State against the
legislative power of his own State, that the word citizen of the
State should be left out when it is so carefully used, and used in
contradistinction to citizens of the United States in the very
sentence which precedes it. It is too clear for argument that the
change in phraseology was adopted understandingly and, with a
purpose.
Of the privileges and immunities of the citizen of the United
States, and of the privileges and immunities of the citizen of the
State, and what they respectively are, we will presently
consider; but we wish to state here that it is only the former
which are placed by this clause under the protection of the
Federal Constitution, and that the latter, whatever they may be,
are not intended to have any additional protection by this
paragraph of the amendment.
Was it the purpose of the fourteenth amendment, by the simple
declaration that no State should make or enforce any law which
shall abridge the privileges and immunities of citizens of the
United States, to transfer the security and protection of all the
civil rights which we have mentioned, from the States to the
Federal government? And where it is declared that Congress
Shall have the power to enforce that article, was it intended to
bring within the power of Congress the entire domain of civil
rights heretofore belonging exclusively to the States?
We are convinced that no such results were intended by the

Congress which proposed these amendments, nor by the
legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in
the argument are those which belong to citizens of the States as
such, and that they are left to the State governments for security
and protection, and not by this article placed under the special
care of the Federal government, we may hold ourselves excused
from defining the privilegesand immunities of citizens of the
United States which no State can abridge until some case
involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities
are to he found if those we have been considering are excluded,
we venture to suggest some which owe their existence to the
Federal government, its national character, its Constitution, or
its laws.
Excerpts from the Dissenting Opinion in the Slaughterhouse
Cases (1873) by Justice Field
The provisions of the fourteenth amendment, which is properly
a supplement to the thirteenth, cover, in my judgment, the case
before us, and inhibit any legislation which confers special and
exclusive privileges like these under consideration. The
amendment was adopted to obviate objections which had been

raised and pressed with great force to the validity of the Civil
Rights Act, and to place the common rights of American
citizens under the protection of the National government.
The first clause of the fourteenth amendment changes this whole
subject, and removes it from the region of discussion and doubt.
It recognizes in express terms, if it does not create, citizens of
the United States, and it makes their citizenship dependent upon
the place of their birth, or the fact of their adoption, and not
upon the constitution or laws of any State or the condition of
their ancestry. A citizen of a State is now only a citizen of the
United States residing in that State. The fundamental rights,
privileges, and immunities which belong to him as a free man
and a free citizen now belong to him as a citizen of the United
States, and are not dependent upon his citizenship of any State.
The exercise of these rights and privileges, and the degree of
enjoyment received from such exercise, are always more or less
affected by the condition and the local institutions of the State,
or city, or town where he resides. They are thus affected in a
State by the wisdom of its laws, the ability of its officers, the
efficiency of its magistrates, the education and morals of its
people, and by many other considerations. This is a result which
follows from the constitution of society, and can never be
avoided, but in no other way can they be affected by the action
of the State, or by the residence of the citizen therein. They do
not derive their existence from its legislation, and cannot be
destroyed by its power.
The amendment does not attempt to confer any new privileges
or immunities upon citizens, or to enumerate or define those
already existing. It assumes that there are such privileges and
immunities which belong of right to citizens as such, and
ordains that they shall not be abridged by State legislation. If
this inhibition has no reference to privileges and immunities of
this character, but only refers, as held by the majority of the
court in their opinion, to such privileges and immunities as were
before its adoption specially designated in the Constitution or
necessarily implied as belonging to citizens of the United

States, it was a vain and idle enactme nt, which accomplished
nothing and most unnecessarily excited Congress and the people
on its passage. With privileges and immunities thus designated
or implied no State could ever have interfered by its laws, and
no new constitutional provision was required to inhibit such
interference. The supremacy of the Constitution and the laws of
the United States always controlled any State legislation of that
character. But if the amendment refers to the natural and
inalienable rights which belong to all citizens, the inhibition has
a profound significance and consequence.
Equality of right, with exemption from all disparaging and
partial enactments, in the lawful pursuits of life, throughout the
whole country, is the distinguishing privilege of citizens of the
United States. To them, everywhere, all pursuits, all
professions, all avocations are open without other restrictions
than such as are imposed equally upon all others of the same
age, sex, and condition. The State may prescribe such
regulations for every pursuit and calling of life as will promote
the public health, secure the good order and advance the general
prosperity of society, but, when once prescribed, the pursuit or
calling must be free to be followed by every citizen who is
within the conditions designated, and will conform to the
regulations. This is the fundamental idea upon which our
institutions rest, and, unless adhered to in the legislation of the
country, our government will be a republic only in name. The
fourteenth amendment, in my judgment, makes it essential to
the validity of the legislation of every State that this equality of
right should be respected. How widely this equality has been
departed from, how entirely rejected and trampled upon by the
act of Louisiana, I have already shown. And it is to me a matter
of profound regret that its validity is recognized by a majority
of this court, for by it the right of free labor, one of the most
sacred and imprescriptible rights of man, is violated.

Excerpts from the Majority Opinion in U.S. v. Cruikshank
(1875) by Justice Waite
We have in our political system a government of the United
States and a government of each of the several States. Each one
of these governments is distinct from the others, and each has
citizens of its own who owe it allegiance, and whose rights,
within its jurisdiction, it must protect. The same person may be
at the same time a citizen of the United States and a citizen of a
State, but his rights of citizenship under one of these
governments will be different from those he has under the other.
Citizens are the members of the political community to which
they belong. They are the people who compose the community,
and who, in their associated capacity, have established or
submitted themselves to the dominion of a government for the
promotion of their general welfare and the protection of their
individual as well as their collective rights. In the formation of
a government, the people may confer upon it such powers as

they choose. The government, when so formed, may, and when
called upon should, exercise all the powers it has for the
protection of the rights of its citizens and the people within its
jurisdiction; but it can exercise no other. The duty of a
government to afford protection is limited always by the power
it possesses for that purpose.
The fourteenth amendment prohibits a State from depriving any
but this adds nothing to the rights of one citizen as against
another. It simply furnishes an additional guaranty against any
encroachment by the States upon the fundamental rights which
belong to every citizen as a member of society.
The fourth and twelfth counts charge the intent to have been to
prevent and hinder the citizens named, who were of African
descent and persons of color, in 'the free exercise and
enjoyment of their several right and privilege to the full and
equal benefit of all laws and proceedings, then and there, before
that time, enacted or ordained by the said State of Louisiana and
by the United States; and then and there, at that time, being in
force in the said State and District of Louisiana aforesaid, for
the security of their respective persons and property, then and
there, at that time enjoyed at and within said State and District
of Louisiana by white persons, being citizens of said State of
Louisiana and the United States, for the protection of the
persons and property of said white citizens.' There is no
allegation that this was done because of the race or color of the
persons conspired against. When stripped of its verbiage, the
case as presented amounts to nothing more than that the
defendants conspired to prevent certain citizens of the United
States, being within the State of Louisiana, from enjoying the
equal protection of the laws of the State and of the United
States.
The fourteenth amendment prohibits a State from denying to
any person within its jurisdiction the equal protection of the
laws; but this provision does not, any more than the one which

precedes it, and which we have just considered, add any thing to
the rights which one citizen has under the Constitution against
another. The equality of the rights of citizens is a principle of
republicanism. Every republican government is in duty bound to
protect all its citizens in the enjoyment of this principle, if
within its power. That duty was originally assumed by the
States; and it still remains there. The only obligation resting
upon the United States is to see that the States do not deny the
right. This the amendment guarantees, but no more. The power
of the national government is limited to the enforcement of this
guaranty.
Excerpts from the Majority Opinion in The Civil Rights Cases
(1883) by Justice Bradley
Individual invasion of individual rights is not the subject-matter
of the [Fourteenth] Amendment. It has a deeper and broader
scope. It nullifies and makes void all state legislation, and state
action of every kind, which impairs the privileges and
immunities of citizens of the United States, or which injures
them in life, liberty or property without due process of law, or
which denies to any of them the equal protection of the laws. ...
It does not invest congress with power to legislate upon subjects
which are within the domain of state legislation; but to provide
modes of relief against state legislation, or state action, of the
kind referred to. It does not authorize congress to create a code
of municipal law for the regulation of private rights; but to
provide modes of redress against the operation of state laws,
and the action of state officers, executive or judicial, when
these are subversive of the fundamental rights specified in the
amendment. Positive rights and privileges are undoubtedly
secured by the fourteenth amendment; but they are secured by
way of prohibition against state laws and state proceedings
affecting those rights and privileges, and by power given to
congress to legislate for the purpose of carrying such
prohibition into effect; and such legislation must necessarily be

predicated upon such supposed state laws or state proceedings,
and be directed to the correction of their operation and effect.
... it would be running the slavery argument into the ground to
make it apply to every act of discrimination which a person may
see fit to make as to guests he will entertain, or as to the people
he will take into his coach or cab or car; or admit to his concert
or theater, or deal with in other matters of intercourse or
business. Innkeepers and public carriers, by the laws of all the
states, so far as we are aware, are bound, to the extent of their
facilities, to furnish proper accommodation to all
unobjectionable persons who in good faith apply for them. If the
laws themselves make any unjust discrimination, amenable to
the prohibitions of the fourteenth amendment, congress has full
power to afford a remedy under that amendment and in
accordance with it.
When a man has emerged from slavery, and by the aid of
beneficent legislation has shaken off the inseparable
concomitants of that state, there must be some stage in the
progress of his elevation when he takes the rank of a mere
citizen, and ceases to be the special favorite of the laws, and
when his rights as a citizen, or a man, are to be protected in the
ordinary modes by which other men's rights are protected. There
were thousands of free colored people in this country before the
abolition of slavery, enjoying all the essential rights of life,
liberty, and property the same as white citizens; yet no one, at
that time, thought that it was any invasion of their personal
status as freemen because they were not admitted to all the
privileges enjoyed by white citizens, or because they were
subjected to discriminations in the enjoyment of
accommodations in inns, public conveyances, and places of
amusement. Mere discriminations on account of race or color
were not regarded as badges of slavery ...
Excerpts from the Dissenting Opinion in The Civil Rights Cases

The opinion in these cases proceeds, as it seems to me, upon
grounds entirely too narrow and artificial. The substance and
spirit of the recent amendments of the constitution have been
sacrificed by a subtle and ingenious verbal criticism. 'It is not
the words of the law but the internal sense of it that makes the
law. The letter of the law is the body; the sense and reason of
the law is the soul.' Constitutional provisions, adopted in the
interest of liberty, and for the purpose of securing, through
national legislation, if need be, rights inhering in a state of
freedom, and belonging to American citizenship, have been so
construed as to defeat the ends the people desired to
accomplish, which they attempted to accomplish, and which
they supposed they had accomplished by changes in their
fundamental law. By this I do not mean that the determination
of these cases should have been materially controlled by
considerations of mere expediency or policy. I mean only, in
this form, to express an earnest conviction that the court has
departed from the familiar rule requiring, in the interpretation
of constitutional provisions, that full effect be given to the
intent with which they were adopted.
The purpose of the first section of the act of congress of March
1, 1875, was to prevent race discrimination. It does not assume
to define the general conditions and limitations under which
inns, public conveyances, and places of public amusement may
be conducted, but only declares that such conditions and
limitations, whatever they may be, shall not be applied, by way
of discrimination, on account of race, color, or previous
condition of servitude. The second section provides a penalty
against any one denying, or aiding or inciting the denial, to any
citizen that equality of right given by the first section, except
for reasons by law applicable to citizens of every race or color,
and regardless of any previous condition of servitude
The colored citizens of other states, within the jurisdiction of
that state, could claim, under the constitution, every privilege

and immunity which that state secures to her white citizens.
Otherwise, it would be in the power of any state, by
discriminating class legislation against its own citizens of a
particular race or color, to withhold from citizens of other
states, belonging to that proscribed race, when within her limits,
privileges and immunities of the character regarded by all
courts as fundamental in citizenship; and that, too, when the
constitutional guaranty is that the citizens of each state shall be
entitled to 'all privileges and immunities of citizens of the
several states.' No state may, by discrimination against a
portion of its own citizens of a particular race, in respect of
privileges and immunities fundamental in citizenship, impair
the constitutional right of citizens of other states, of whatever
race, to enjoy in that state all such privileges and immunities as
are there accorded to her most favored citizens. A colored
citizen of Ohio or Indiana, being in the jurisdiction of
Tennessee, is entitled to enjoy any privilege or immunity,
fundamental in citizenship, which is given to citizens of the
white race in the latter state. It is not to be supposed that any
one will controvert this proposition.
What I affirm is that no state, nor the officers of any state, nor
any corporation or individual wielding power under state
authority for the public benefit or the public convenience, can,
consistently either with the freedom established by the
fundamental law, or with that equality of civil rights which now
belongs to every citizen, discriminate against freemen or
citizens, in their civil rights, because of their race, or because
they once labored under disabilities imposed upon them as a
race. The rights which congress, by the act of 1875, endeavored
to secure and protect are legal, not social, rights. The right, for
instance, of a colored citizen to use the accommodations of a
public highway upon the same terms as are permitted to white
citizens is no more a social right than his right, under the law,
to use the public streets of a city, or a town, or a turnpike road,
or a public market, or a post-office, or his right to sit in a
public building with others, of whatever race, for the purpose of

hearing the political questions of the day discussed. Scarcely a
day passes without our seeing in this court-room citizens of the
white and black races sitting side by side watching the progress
of our business. It would never occur to any one that the
presence of a colored citizen in a court-house or court-room was
an invasion of the social rights of white persons who may
frequent such places. And yet such a suggestion would be quite
as sound in law—I say it with all respect—as is the suggestion
that the claim of a colored citizen to use, upon the same terms
as is permitted to white citizens, the accommoda tions of public
highways, or public inns, or places of public amusement,
established under the license of the law, is an invasion of the
social rights of the white race.
[...]
The one underlying purpose of congressional legislation has
been to enable the black race to take the rank of mere citizens.
The difficulty has been to compel a recognition of their legal
right to take that rank, and to secure the enjoyment of privileges
belonging, under the law, to them as a component part of the
people for whose welfare and happiness government is
ordained. At every step in this direction the nation has been
confronted with class tyranny, which a contemporary English
historian says is, of all tyrannies, the most intolerable, 'for it is
ubiquitous in its operation, and weighs, perhaps, most heavily
on those whose obscurity or distance would withdraw them from
the notice of a single despot.' To-day it is the colored race
which is denied, by corporations and individuals wielding
public authority, rights fundamental in their freedom and
citizenship. At some future time it may be some other race that
will fall under the ban. If the constitutional amendments be
enforced, according to the intent with which, as I conceive, they
were adopted, there cannot be, in this republic, any class of
human beings in practical subjection to another class, with
power in the latter to dole out to the former just such privileges
as they may choose to grant. The supreme law of the land has
decreed that no authority shall be exercised in this country upon

the basis of discrimination, in respect of civil rights, against
freemen and citizens because of their race, color, or previous
condition of servitude. To that decree—for the due enforcement
of which, by appropriate legislation, congress has been invested
with express power—every one must bow, whatever may have
been, or whatever now are, his individual views as to the
wisdom or policy, either of the recent changes in the
fundamental law, or of the legislation which has been enacted to
give them effect.
For the reasons stated I feel constrained to withhold my assent
to the opinion of the court.
Excerpts from the Majority Opinion in U.S. v. Harris (1883) by
Justice Powell
"The citizens of each state shall be entitled to all the privileges
and immunities of citizens of the several states."
But this section, like the Fourteenth Amendment, is directed
against state action. Its object is to place the citizens of each
state upon the same footing with citizens of other states, and
inhibit discriminative legislation against them by other states.
Referring to the same provision of the Constitution, this Court
said in the Slaughterhouse Cases, ubi supra,that it
"did not create those rights which it called privileges and
immunities of citizens of the states. It threw around them in that
clause no security for the citizen of the state in which they were
claimed or exercised. Nor did it profess to control the power of
the state governments over its own citizens. Its sole purpose
was to declare to the several states that whatever those rights,
as you grant or establish them to your own citizens, or as you
limit or qualify or impose restrictions on their exercise, the

same, neither more nor less, shall be the measure of the rights
of citizens of other states within your jurisdiction."
The legislation under consideration finds no warrant for its
enactment in the Fourteenth Amendment.
The language of the amendment does not leave this subject in
doubt. When the state has been guilty of no violation of its
provisions; when it has not made or enforced any law abridging
the privileges or immunities of citizens of the United States;
when no one of its departments has deprived any person of life,
liberty, or property without due process of law, or denied to any
person within its jurisdiction the equal protection of the laws;
when, on the contrary, the laws of the state, as enacted by its
legislative and construed by its judicial and administered by its
executive departments recognize and protect the rights of all
persons, the amendment imposes no duty and confers no power
upon Congress.
Section 5519 of the Revised Statutes is not limited to take
effect only in case the state shall abridge the privileges or
immunities of citizens of the United States or deprive any
person of life, liberty, or property without due process of law or
deny to any person the equal protection of the laws. It applies
no matter how well the state may have performed its duty.
Under it, private persons are liable to punishment for conspiring
to deprive anyone of the equal protection of the laws enacted by
the state.
In the indictment in this case, for instance, which would be a
good indictment under the law if the law itself were valid, there
is no intimation that the State of Tennessee has passed any law
or done any act forbidden by the Fourteenth Amendment. On the
contrary, the gravamen of the charge against the accused is that
they conspired to deprive certain citizens of the United States
and of the State of Tennessee of the equal protection accorded

them by the laws of Tennessee.
As, therefore, the section of the law under consideration is
directed exclusively against the action of private persons,
without reference to the laws of the states or their
administration by the officers of the state, we are clear in the
opinion that it is not warranted by any clause in the Fourteenth
Amendment to the Constitution.
It was never supposed that the section under consideration
conferred on Congress the power to enact a law which would
punish a private citizen for an invasion of the rights of his
fellow citizen conferred by the State of which they were both
residents on all its citizens alike.
We have therefore been unable to find any constitutional
authority for the enactment of section 5519 of the Revised
Statutes. The decisions of this Court above referred to leave no
constitutional ground for the act to stand on.
Excerpts from the Majority Opinion in Plessy v. Ferguson
(1896) by Justice Brown

So far, then, as a conflict with the fourteenth amendment is
concerned, the case reduces itself to the question whether the
statute of Louisiana is a reasonable regulation, and with respect
to this there must necessarily be a large discretion on the part of
the legislature. In determining the question of reasonableness, it
is at liberty to act with reference to the established usages,
customs, and traditions of the people, and with a view to the
promotion of their comfort, and the preservation of the public
peace and good order. Gauged by this standard, we cannot say
that a law which authorizes or even requires the separation of
the two races in public conveyances is unreasonable, or more
obnoxious to the fourteenth amendment than the Acts of
Congress requiring separate schools for colored children in the
District of Columbia, the constitutionality of which does not
seem to have been questioned, or the corresponding acts of state
legislatures.
We consider the underlying fallacy of the plaintiff's argument to
consist in the assumption that the enforced separation of the two
races stamps the colored race with a badge of inferiority. If this
be so, it is not by reason of anything found in the act, but solely
because the colored race chooses to put that construction upon
it. . . . The argument also assumes that social prejudices may be
overcome by legislation, and that equal rights cannot be secured
to the negro except by an enforced commingling of the two
races. We cannot accept this proposition. If the two races are to
meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other's merits
and a voluntary consent of individuals. . . . Legislation is
powerless to eradicate racial instincts or to abolish distinctions
based upon physical differences, and the attempt to do so can
only result in accentuating the difficulties of the present
situation. If the civil and political rights of both races be equal
one cannot be inferior to the other civilly or politically. If one
race be inferior to the other socially, the Constitution of the
United States cannot put them upon the same plane.

Excerpts from the Dissenting Opinion in Plessy v. Ferguson
The white race deems itself to be the dominant race in this
country. And so it is in prestige, in achievements, in education,
in wealth and in power. So, I doubt not, it will continue to be
for all time if it remains true to its great heritage and holds fast
to the principles of constitutional liberty. But in view of the
Constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste
here. Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil rights, all
citizens are equal before the law. The humblest is the peer of
the most powerful. The law regards man as man, and takes no
account of his surroundings or of his color when his civil rights
as guaranteed by the supreme law of the land are involved. It is
therefore to be regretted that this high tribunal, the final
expositor of the fundamental law of the land, has reached the
conclusion that it is competent for a State to regulate the
enjoyment by citizens of their civil rights solely upon the basis
of race.
In my opinion, the judgment this day rendered will, in time,
prove to be quite as pernicious as the decision made by this
tribunal in the Dred Scott Case. It was adjudged in that case
that the descendants of Africans who were imported into this
country and sold as slaves were not included nor intended to be
included under the word "citizens" in the Constitution, and
could not claim any of the rights and privileges which that
instrument provided for and secured to citizens of the United
States; that, at the time of the adoption of the Constitution, they
were
considered as a subordinate and inferior class of beings, who
had been subjugated by the dominant race, and, whether
emancipated or not, yet remained subject to their authority, and

had no rights or privileges but such as those who held the power
and the government might choose to grant them.
The recent amendments of the Constitution, it was supposed,
had eradicated these principles from our institutions. But it
seems that we have yet, in some of the States, a dominant race -
- a superior class of citizens, which assumes to regulate the
enjoyment of civil rights, common to all citizens, upon the basis
of race. The present decision, it may well be apprehended, will
not only stimulate aggressions, more or less brutal and
irritating, upon the admitted rights of colored citizens, but will
encourage the belief that it is possible, by means of state
enactments, to defeat the beneficent purposes which the people
of the United States had in view when they adopted the recent
amendments of the Constitution, by one of which the blacks of
this country were made citizens of the United States and of the
States in which they respectively reside, and whose privileges
and immunities, as citizens, the States are forbidden to abridge.
Sixty millions of whites are in no danger from the presence here
of eight millions of blacks. The destinies of the two races in
this country are indissolubly linked together, and the interests
of both require that the common government of all shall not
permit the seeds of race hate to be planted under the sanction of
law. What can more certainly arouse race hate, what more
certainly create and perpetuate a feeling of distrust between
these races, than state enactments which, in fact, proceed on the
ground that colored citizens are so inferior and degraded that
they cannot be allowed to sit in public coaches occupied by
white citizens. That, as all will admit, is the real meaning of
such legislation as was enacted in Louisiana.

Excerpts from the Majority Opinion in Lum v. Rice (1927) by
Chief Justice Taft
As we have seen, the plaintiffs aver that the Rosedale
Consolidated High School is the only school conducted in that
district available for Martha Lum as a pupil. They also aver that
there is no school maintained in the district of Bolivar County
for the education of Chinese children, and none in the county.
How are these averments to be reconciled with the statement of
the state supreme court that colored schools are maintained in
every county by virtue of the constitution? This seems to be
explained, in the language of the state supreme court, as
follows:
"By statute it is provided that all the territory of each county of
the state shall be divided into school districts separately for the
white and colored races -- that is to say, the whole territory is to
be divided into white school districts, and then a new division

of the county for colored school districts. In other words, the
statutory scheme is to make the districts, outside of the separate
school districts, districts for the particular race, white or
colored, so that the territorial limits of the school districts need
not be the same, but the territory embraced in a school district
for the colored race may not be the same territory embraced in
the school district for the white race, and vice versa, which
system of creating the common school districts for the two
races, white and colored, do not require schools for each race as
such to be maintained in each district, but each child, no matter
from what territory, is assigned to some school district, the
school buildings being separately located and separately
controlled, but each having the same curriculum, and each
having the same number of months of school term, if the
attendance is maintained for the said statutory period, which
school district of the common or public schools has certain
privileges, among which is to maintain a public school by local
taxation for a longer period of time than the said term of four
months under named conditions which apply alike to the
common schools for the white and colored races."
We must assume, then, that there are school districts for colored
children in Bolivar County, but that no colored school is within
the limits of the Rosedale Consolidated High School District.
This is not inconsistent with there being at a place outside of
that district and in a different district, a colored school which
the plaintiff Martha Lum may conveniently attend. If so, she is
not denied, under the existing school system, the right to attend
and enjoy the privileges of a common school education in a
colored school. If it were otherwise, the petition should have
contained an allegation showing it. Had the petition alleged
specifically that there was no colored school in Martha Lum's
neighborhood to which she could conveniently go, a different
question would have been presented, and this without regard to
the state supreme court's construction of the state constitution
as limiting the white schools provided for the education of
children of the white or Caucasian race. But we do not find the

petition to present such a situation.
The case then reduces itself to the question whether a state can
be said to afford to a child of Chinese ancestry, born in this
country and a citizen of the United States, the equal protection
of the laws by giving her the opportunity for a common school
education in a school which receives only colored children of
the brown, yellow, or black races.
The question here is whether a Chinese citizen of the United
States is denied equal protection of the laws when he is classed
among the colored races and furnished facilities for education
equal to that offered to all, whether white, brown, yellow, or
black. Were this a new question, it would call for very full
argument and consideration; but we think that it is the same
question which has been many times decided to be within the
constitutional power of the state legislature to settle, without
intervention of the federal courts under the federal Constitution
In Plessy v. Ferguson,163 U. S. 537, 163 U. S. 544-545, in
upholding the validity under the Fourteenth Amendment of a
statute of Louisiana requiring the separation of the white and
colored races in railway coaches, a more difficult question than
this, this Court, speaking of permitted race separation, said:
"The most common instance of this is connected with the
establishment of separate schools for white and colored
children, which has been held to be a valid exercise of the
legislative power even by courts of states where the political
rights of the colored race have been longest and most earnestly
enforced."
Most of the cases cited arose, it is true, over the establishment
of separate schools as between white pupils and black pupils,
but we cannot think that the question is any different, or that
any different result can be reached, assuming the cases above
cited to be rightly decided, where the issue is as between white
pupils and the pupils of the yellow races. The decision is within
the discretion of the state in regulating its public schools, and
does not conflict with the Fourteenth Amendment.

Excerpts from the Majority Opinion in Brown v. Board of
Education (1954) by Chief Justice Warren
. . . Here . . . there are findings below that the Negro and white
schools involved have been equalized, or are being equalized,
with respect to buildings, curricula, qualifications, and salaries
of teachers, and other "tangible" factors. Our decision,
therefore, cannot turn on merely a comparison of these tangible
factors in the Negro and white schools involved in each of these
cases. We must look instead to the effect of segregation itself
on public education. . . .
Today, education is perhaps the most important function of state
and local governments. Compulsory school attendance laws and
the great expenditures for education both demonstrate our
recognition of the importance of education to our democratic
society. . . . Today it is a principal instrument in awakening the
child to cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the
opportunity of an education. Such an opportunity, where the
state has undertaken to provide it, is a right which must be made
available to all on equal terms. . . .
To separate them [children in grade and high schools] from
others of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way
unlikely to ever be undone. . . . Whatever may have been the
extent of psychological knowledge at the time of Plessy
v.Ferguson, this finding is amply supported by modern

authority. . . .
We conclude that in the field of public education the doctrine of
"separate but equal" has no place. Separate educational
facilities are inherently unequal. Therefore, we hold that the
plaintiffs and other similarly situated . . . are . . . deprived of
the equal protection of the laws guaranteed by the Fourteenth
Amendment.
Excerpts from the Majority Opinion in Regents of the
University of California v. Bakke (1978) by Justice Powell
In such an admissions program,race or ethnic background may
be deemed a "plus" in a particular applicant's file, yet it does
not insulate the individual from comparison with all other
candidates for the available seats. The file of a particular black
applicant may be examined for his potential contribution to
diversity without the factor of race being decisive when
compared, for example, with that of an applicant identified as
an Italian-American if the latter is thought to exhibit qualities
more likely to promote beneficial educational pluralism. Such
qualities could include exceptional personal talents, unique
work or service experience, leadership potential, maturity,
demonstrated compassion, a history of overcoming
disadvantage, ability to communicate with the poor, or other
qualifications deemed important. In short, an admissions
program operated in this way is flexible enough to consider all
pertinent elements of diversity in light of the particular
qualifications of each applicant, and to place them on the same
footing for consideration, although not necessarily according
them the same weight. Indeed, the weight attributed to a[p318]
particular quality may vary from year to year depending upon
the "mix" both of the student body and the applicants for the
incoming class.
This kind of program treats each applicant as an individual in
the admissions process. The applicant who loses out on the last
available seat to another candidate receiving a "plus" on the

basis of ethnic background will not have been foreclosed from
all consideration for that seat simply because he was not the
right color or had the wrong surname. It would mean only that
his combined qualifications, which may have included similar
nonobjective factors, did not outweigh those of the other
applicant. His qualifications would have been weighed fairly
and competitively, and he would have no basis to complain of
unequal treatment under the Fourteenth Amendment.
It has been suggested that an admissions program which
considers race only as one factor is simply a subtle and more
sophisticated -- but no less effective -- means of according
racial preference than the Davis program. A facial intent to
discriminate, however, is evident in petitioner's preference
program, and not denied in this case. No such facial infirmity
exists in an admissions program where race or ethnic
background is simply one element -- to be weighed fairly
against other elements -- in the selection process. "A boundary
line," as Mr. Justice Frankfurter remarked in another
connection, "is none the worse for being narrow." McLeod v.
Dilworth, 322 U.S. 327, 329 (1944). And a court would not
assume that a university, professing to employ a facially
nondiscriminatory admissions policy, would operate it as a
cover for the functional equivalent of a quota system. In short,
good faith would be presumed in the absence of a showing to
the contrary in the manner permitted by our cases.
B
In summary, it is evident that the Davis special admissions
program involves the use of an explicit racial classification
never before countenanced by this Court. It tells applicants who
are not Negro, Asian, or Chicano that they are totally excluded
from a specific percentage of the seats in an entering class. No
matter how strong their qualifications, quantitative and
extracurricular, including their own potential for contribution to
educational diversity, they are never afforded the chance to
compete with applicants from the preferred groups for the

special admissions seats. At the same time, the preferred[p320]
applicants have the opportunity to compete for every seat in the
class.
The fatal flaw in petitioner's preferential program is its
disregard of individual rights as guaranteed by the Fourteenth
Amendment. Shelley v. Kraemer, 334 U.S. at 22. Such rights are
not absolute. But when a State's distribution of benefits or
imposition of burdens hinges on ancestry or the color of a
person's skin, that individual is entitled to a demonstration that
the challenged classification is necessary to promote a
substantial state interest. Petitioner has failed to carry this
burden. For this reason, that portion of the California court's
judgment holding petitioner's special admissions program
invalid under the Fourteenth Amendment must be affirmed.
C
In enjoining petitioner from ever considering the race of any
applicant, however, the courts below failed to recognize that the
State has a substantial interest that legitimately may be served
by a properly devised admissions program involving the
competitive consideration of race and ethnic origin. For this
reason, so much of the California court's judgment as enjoins
petitioner from any consideration of the race of any applicant
must be reversed.
VI
With respect to respondent's entitlement to an injunction
directing his admission to the Medical School, petitioner has
conceded that it could not carry its burden of proving that, but
for the existence of its unlawful special admissions program,
respondent still would not have been admitted. Hence,
respondent is entitled to the injunction, and that portion of the
judgment must be affirmed.

Excerpts from the Majority Opinion in Bush v. Gore (2000) by
The Justices of the Supreme Court
The State Supreme Court ratified this uneven treatment. It
mandated that the recount totals from two counties, Miami-Dade
and Palm Beach, be included in the certified total. The court
also appeared to hold sub silentio that the recount totals from
Broward County, which were not completed until after the
original November 14 certification by the Secretary of State,
were to be considered part of the new certified vote totals even
though the county certification was not contested by Vice
President Gore. Yet each of the counties used varying standards
to determine what was a legal vote. Broward County used a
more forgiving standard than Palm Beach County, and
uncovered almost three times as many new votes, a result
markedly disproportionate to the difference in population
between the counties.
In addition, the recounts in these three counties were not
limited to so-called undervotes but extended to all of the
ballots. The distinction has real consequences. A manual
recount of allballots identifies not only those ballots which
show no vote but also those which contain more than one, the
so-called overvotes. Neither category will be counted by the
machine. This is not a trivial concern. At oral argument,
respondents estimated there are as many as 110,000 overvotes
statewide. As a result, the citizen whose ballot was not read by
a machine because he failed to vote for a candidate in a w ay
readable by a machine may still have his vote counted in a
manual recount; on the other hand, the citizen who marks two
candidates in a way discernable by the machine will not have
the same opportunity to have his vote count, even if a manual
examination of the ballot would reveal the requisite indicia of
intent. Furthermore, the citizen who marks two candidates, only
one of which is discernable by the machine, will have his vote
counted even though it should have been read as an invalid

ballot. The State Supreme Court’s inclusion of vote counts
based on these variant standards exemplifies concerns with the
remedial processes that were under way.
That brings the analysis to yet a further equal protection
problem. The votes certified by the court included a partial total
from one county, Miami-Dade. The Florida Supreme Court’s
decision thus gives no assurance that the recounts included in a
final certification must be complete. Indeed, it is respondent’s
submission that it would be consistent with the rules of the
recount procedures to include whatever partial counts are done
by the time of final certification, and we interpret the Florida
Supreme Court’s decision to permit this. See ____ So. 2d, at
____, n. 21 (slip op., at 37, n. 21) (noting “practical
difficulties” may control outcome of election, but certifying
partial Miami-Dade total nonetheless). This accommodation no
doubt results from the truncated contest period established by
the Florida Supreme Court in Bush I, at respondents’ own
urging. The press of time does not diminish the constitutional
concern. A desire for speed is not a general excuse for ignoring
equal protection guarantees.
In addition to these difficulties the actual process by which
the votes were to be counted under the Florida Supreme Court’s
decision raises further concerns. That order did not specify who
would recount the ballots. The county canvassing boards were
forced to pull together ad hoc teams comprised of judges from
various Circuits who had no previous training in handling and
interpreting ballots. Furthermore, while others were permitted
to observe, they were prohibited from objecting during the
recount.
The recount process, in its features here described, is
inconsistent with the minimum procedures necessary to protect
the fundamental right of each voter in the special instance of a
statewide recount under the authority of a single state judicial
officer. Our consideration is limited to the present
circumstances, for the problem of equal protection in election
processes generally presents many complexities.

The question before the Court is not whether local entities, in
the exercise of their expertise, may develop different systems
for implementing elections. Instead, we are presented with a
situation where a state court with the power to assure
uniformity has ordered a statewide recount with minimal
procedural safeguards. When a court orders a statewide remedy,
there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are
satisfied.
Given the Court's assessment that the recount process
underway was probably being conducted in an unconstitutional
manner, the Court stayed the order directing the recount so it
could hear this case and render an expedited decision. The
contest provision, as it was mandated by the State Supreme
Court, is not well calculated to sustain the confidence that all
citizens must have in the outcome of elections. The State has
not shown that its procedures include the necessary safeguards.
The problem, for instance, of the estimated 110,000 overvotes
has not been addressed, although Chief Justice Wells called
attention to the concern in his dissenting opinion. See ____ So.
2d, at ____, n. 26 (slip op., at 45, n. 26).
Upon due consideration of the difficulties identified to this
point, it is obvious that the recount cannot be conducted in
compliance with the requirements of equal protection and due
process without substantial additional work. It would require
not only the adoption (after opportunity for argument) of
adequate statewide standards for determining what is a legal
vote, and practicable procedures to implement them, but also
orderly judicial review of any disputed matters that might arise.
In addition, the Secretary of State has advised that the recount
of only a portion of the ballots requires that the vote tabulation
equipment be used to screen out undervotes, a function for
which the machines were not designed. If a recount of overvotes
were also required, perhaps even a second screening would be
necessary. Use of the equipment for this purpose, and any new
software developed for it, would have to be evaluated for

accuracy by the Secretary of State, as required by Fla. Stat.
§101.015 (2000).
Excerpts from the Majority Opinion in Obergefell v. Hodges
(2015) by Justice Kennedy
The right to marry is fundamental as a matter of history and
tradition, but rights come not from ancient sources alone. They
rise, too, from a better informed understanding of how
constitutional imperatives define a liberty that remains urgent in
our own era. Many who deem same-sex marriage to be wrong
reach that conclusion based on decent and honorable religious
or philosophical premises, and neither they nor their beliefs are
disparaged here. But when that sincere, personal opposition
becomes enacted law and public policy, the necessary
consequence is to put the imprimatur of the State itself on an
exclusion that soon demeans or stigmatizes those whose own
liberty is then denied. Under the Constitution, same-sex couples
seek in marriage the same legal treatment as opposite-sex
couples, and it would disparage their choices and diminish their
personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty
promised by the Fourteenth Amendment is derived, too, from
that Amendment's guarantee of the equal protection of the laws.
The Due Process Clause and the Equal Protection Clause are
connected in a profound way, though they set forth independent
principles. Rights implicit in liberty and rights secured by equal

protection may rest on different precepts and are not always co-
extensive, yet in some instances each may be instructive as to
the meaning and reach of the other. In any particular case one
Clause may be thought to capture the essence of the right in a
more accurate and comprehensive way, even as the two Clauses
may converge in the identification and definition of the right.
See M. L. B., 519 U. S., at 120 121; id., at 128 129 (Kennedy,
J., concurring in judgment); Beardenv. Georgia, 461 U. S. 660,
665 (1983) . This interrelation of the two principles furthers our
understanding of what freedom is and must become.
Indeed, in interpreting the Equal Protection Clause, the Court
has recognized that new insights and societal understandings
can reveal unjustified inequality within our most fundamental
institutions that once passed unnoticed and unchallenged. To
take but one period, this occurred with respect to marriage in
the 1970's and 1980's. Notwithstanding the gradual erosion of
the doctrine of coverture, see supra, at 6, invidious sex-based
classifications in marriage remained common through the mid-
20th century. See App. to Brief for Appellant in Reedv. Reed,
O. T. 1971, No. 70 4, pp. 69 88 (an extensive reference to laws
extant as of 1971 treating women as unequal to men in
marriage). These classifications denied the equal dignity of men
and women. One State's law, for example, provided in 1971 that
"the husband is the head of the family and the wife is subject to
him; her legal civil existence is merged in the husband, except
so far as the law recognizes her separately, either for her own
protection, or for her benefit." Ga. Code Ann. 53 501 (1935).
Responding to a new awareness, the Court invoked equal
protection principles to invalidate laws imposing sex-based
inequality on marriage . . . Precedents show the Equal
Protection Clause can help to identify and correct inequalities in
the institution of marriage, vindicating precepts of liberty and
equality under the Constitution.

Excerpts from the Majority Opinion in the Dred Scott Case
(1857) by Chief Justice Taney
The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member
of the political community formed and brought into existence by
the Constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities,
guarantied by that instrument to the citizen? One of which
rights is the privilege of suing in a court of the United States in
the cases specified in the Constitution....
We think [people of African ancestry] are not, and that they are
not included, and were not intended to be included, under the

word "citizens" in the Constitution, and can therefore claim
none of the rights and privileges which that instrument provides
for and secures to citizens of the United States…
For if they were so received, and entitled to the privileges and
immunities of citizens, it would exempt them from the operation
of the special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognized as citizens in
any one State of the Union, the right to enter every other State
whenever they pleased, singly or in companies, without pass or
passport, and without obstruction, to sojourn there as long as
they pleased, to go where they pleased at every hour of the day
or night without molestation, unless they committed some
violation of law for which a white man would be punished; and
it would give them the full liberty of speech in public and in
private upon all subjects upon which its own citizens might
speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would
be done in the face of the subject race of the same color, both
free and slaves, and inevitably producing discontent and
insubordination among them, and endangering the peace and
safety of the State.
The act of Congress, upon which the plaintiff relies, declares
that slavery and involuntary servitude, except as a punishment
for crime, shall be forever prohibited in all that part of the
territory ceded by France, under the name of Louisiana, which
lies northand not included within the limits of Missouri. And
the difficulty which meets us at the threshold of this part of the
inquiry is, whether Congress was authorized to pass this law
under any of the powers granted to it by the Constitution; for if
the authority is not given by that instrument, it is the duty of
this court to declare it void and inoperative, and incapable of
conferring freedom upon any one who is held as a slave under
the laws of any one of the States.
The power to expand the territory of the United States by the

admission of new states is plainly given. But the power of
Congress over the person or property of a citizen [is] regulated
and plainly defined by the Constitution itself. And when the
Territory becomes a part of the United States, the Federal
Government enters upon it with its powers over the citizen
strictly defined, and limited by the Constitution.It has no power
of any kind beyond it; and it cannot, when it enters a Territory
of the United States, put off its character, and assume
discretionary or despotic powers which the Constitution has
denied to it.
. . . [T]he rights of private property have been guarded with . . .
care. Thus the rights of property are united with the rights of
person, and placed on the same ground by the fifth amendment
to the Constitution, which provides that no person shall be
deprived of life, liberty, and property, without due process of
law. And an act of Congress which deprives a citizen of the
United States of his liberty or property, merely because he came
himself or brought his property into a particular Territory of the
United States, and who had committed no offence against the
laws, could hardly be dignified with the name of due process of
law.
Excerpts from the Majority Opinion in Elk v. Wilkins (1884) by
Justice Gray
The petition . . . clearly implies that he was born a member of
one of the Indian tribes within the limits of the United States
which still exists and is recognized as a tribe by the government
of the United States. Though the plaintiff alleges that he 'had

fully and completely surrendered himself to the jurisdiction of
the United States,' he does not allege that the United States
accepted his surrender, or that he has ever been naturalized, or
taxed, or in any way recognized or treated as a citizen by the
state or by the United States. Nor is it contended by his counsel
that there is any statute or treaty that makes him a citizen.
The Indian tribes, being within the territorial limits of the
United States, were not, strictly speaking, foreign states; but
they were alien nations, distinct political communities, with
whom the United States might and habitually did deal, as they
thought fit, either through treaties made by the president and
senate, or through acts of congress in the ordinary forms of
legislation.
Chief Justice TANEY, in the passage cited for the plaintiff from
his opinion in Scott v. Sandford, 19 How. 393, 404, did not
affirm or imply that either the Indian tribes, or individual
members of those tribes, had the right, beyond other foreigners,
to become citizens of their own will, without being naturalized
by the United States. His words were: 'They' (the Indian tribes)
'may without doubt, like the subjects of any foreign
government, be naturalized by the authority of congress, and
become citizens of a state, and of the United States; and if an
individual should leave his nation or tribe, and take up his
abode among the white population, he would be entitled to all
the rights and privileges which would belong to an emigrant
from any other foreign people.' But an emigrant from any
foreign state cannot become a citizen of the United States
without a formal renunciation of his old allegiance, and an
acceptance by the United States of that renuncia tion through
such form of naturalization as may be required law.
The main object of the opening sentence of the fourteenth
amendment was to settle the question, upon which there had
been a difference of opinion throughout the country and in this

court, as to the citizenship of free negroes, (Scott v. Sandford,
19 How. 393;) and to put it beyond doubt that all persons, white
or black, and whether formerly slaves or not, born or
naturalized in the United States, and owing no allegiance to any
alien power, should be citizens of the United States and of the
state in which they reside.
Persons not thus subject to the jurisdiction of the United States
at the time of birth cannot become so afterwards, except by
being naturalized, either individually, as by proceedings under
the naturalization acts; or collectively, as by the force of a
treaty by which foreign territory is acquired. Indians born
within the territorial limits of the United States, members of,
and owing immediate allegiance to, one of the Indiana tri bes,
(an alien though dependent power,) although in a geographical
sense born in the United States, are no more 'born in the United
States and subject to the jurisdiction thereof,' within the
meaning of the first section of the fourteenth amendment, than
the children of subjects of any foreign government born within
the domain of that government, or the children born within the
United States, of ambassadors or other public ministers of
foreign nations. This view is confirmed by the second section
of the fourteenth amendment, which provides that
'representatives shall be apportioned among the several states
according to their respective numbers, counting the whole
number of persons in each state, excluding Indians not taxed.'
Slavery having been abolished, and the persons formerly held as
slaves made citizens, this clauses fixing the apportionment of
representatives has abrogated so much of the corresponding
clause of the original constitution as counted only three-fifths
of such persons. But Indians not taxed are still excluded from
the count, for the reason that they are not citizens. Their
absolute exclusion from the basis of representation, in which all
other persons are now included, is wholly inconsistent with
their being considered citizens.

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