Confirming Pages THE PRACTICAL SKEPTIC CORE CONCEP.docx

Confirming Pages
THE PRACTICAL SKEPTIC
CORE CONCEPTS IN SOCIOLOGY
Sixth Edit ion
Lisa J. McIntyre
Washington State University
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THE PRACTICAL SKEPTIC: CORE CONCEPTS IN
SOCIOLOGY, SIXTH EDITION
Published by McGraw-Hill Education, 2 Penn Plaza, New York,
NY 10121. Copyright © 2 014 by
McGraw-Hill Education. All rights reserved. Printed in the
United States of America. Previous
editions © 2 011, 2008, and 2006. No part of this publication
may be reproduced or distributed in
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to, in any network or other

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learning.
Some ancillaries, including electronic and print components,
may not be available to customers
outside the United States.
This book is printed on acid-free paper.
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Library of Congress Cataloging-in-Publication Data
McIntyre, Lisa J.
The practical skeptic : core concepts in sociology / Lisa J.
McIntyre, Washington State
University. — Sixth edition.
pages cm
ISBN 978-0-07-802687-4 (alk. paper)
1. Sociology. I. Title.
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iii
CONTENTS
Preface x

Introduction 1
So, What Is Sociology? 2
The Value of Sociology to Students 3
Tips for Studying Sociology—and an
Invitation 4
Chapter 1 Responding to Chaos: A Brief History
of Sociology 5
Inquiries into the Physical World 6
Technology, Urbanization, and Social
Upheaval 10
The Origins of Modern Sociology in France:
Émile Durkheim 13
E xcerpt: É mile D urkheim, From Suicide (1897)
and The Rules of the Sociological Method (1904) 14
The Origins of Modern Sociology in Germany:
Ferdinand Tönnies, Max Weber, and Karl Marx 16
E xcerpt: F erdinand T önnies, From
Gemeinschaft and Gesellschaft (1887) 17
Karl Marx 20
The Origins of Modern Sociology in England:
Herbert Spencer 22
Sociology in the United States 23
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iv CONTENTS

B ox: One Small Step for Sociology 25
The Place of Sociology in Modern Society 26
Chapter Review 26
Stop & Review: Answers and Discussion 27
Chapter 2 The Sociological Eye 29
The Focus on the Social 29
B ox: Agency and Structure 34
Skepticism 35
B ox: Nail Down That Distinction Between
Manifest and Latent Functions! 37
Chapter Review 38
Chapter 3 Science and Fuzzy Objects: Specialization
in Sociology 40
Dividing Up the Task 42
Topic Area or Subject Matter 43
Theoretical Perspectives (Paradigms):
Functionalist, Conflict, and Symbolic
Interactionist 43
The Functionalist Paradigm 43
The Conflict Paradigm 44
The Symbolic Interactionist Paradigm 44
Which Paradigm Is Correct? 45
Levels of Analysis: Microsociology
and Macrosociology 46
Chapter Review 47
Chapter 4 Who’s Afraid of Sociology? 49

The Empirical World and Inconvenient Facts 50
Ethnocentrism 52
Avoiding Ethnocentrism Can Be Difficult 54
Cultural Relativism 56
Chapter Review 57
Chapter 5 The Vocabulary of Science 58
Concepts and Constructs 58
Variables 59
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CONTENTS v
Hypotheses 61
Kinds of Variables: Independent Versus
Dependent 63
Kinds of Relationships: Directionality 65
Operational Definitions 66
Tables and Figures 68
A Note on Common Statistics 72
Correlation Versus Causation 74
Chapter Review 75
Chapter 6 Doing Social Research 81

Two Traditions: Quantitative and Qualitative
Research 81
First Things First: The Lit Review 82
The Survey 84
Types of Survey Questions 85
B ox: Six Guidelines for Crafting Survey
Questions 87
The Art of Asking Questions 88
Observation 88
Unobtrusive (Nonreactive) Research 90
Artifacts 90
Use of Existing Statistics 91
Content Analysis 91
The Importance of Triangulation 92
Box: Ethnography 93
Sampling 96
B ox: Ethics and Social Research 97
Chapter Review 98
Chapter 7 Culture 101
Material and Nonmaterial Culture 102
Nonmaterial Culture 102
Symbols 102
Language 103
Norms 104
Types of Norms 105
Sanctions 105

B ox: The Power of Informal Sanctions 106
Values 107
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vi CONTENTS
B ox: What Do Americans Value? 107
B ox: Ideology 108
B ox: Ponder 109
B ox: Statements of Belief 109
Ideas and Beliefs 109
How It Adds Up 109
Culture as a Product of Action 110
Culture as a Conditioning Element of Further
Action 111
B ox: Problems Identified and Resolved in All
Known Cultures 112
B ox: Varieties of Cultural Wisdom 112
Social Institutions 113
Social Change: Cultural Diffusion and
Leveling 114
Subcultures and Countercultures 114
Idiocultures 116
Chapter Review 118
Chapter 8 Social Structure 121

Statuses 121
Roles 123
Tricky Situation 1: Role Strain 124
Tricky Situation 2: Status Inconsistency 124
Tricky Situation 3: Role Conflict 125
Master Status 126
Groups 127
Primary and Secondary Groups 128
Formal Organizations and Bureaucracies 130
Ideal-Type Bureaucracies 130
Chapter Review 133
Chapter 9 Society and Social Institutions 136
Societal Needs 139
The Nature of Social Institutions 142
Institutions Are Generally Unplanned; They
Develop Gradually 142
Institutions Are Inherently Conservative; They
Change, but Slowly 144
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CONTENTS vii

A Particular Society’s Institutions Are
Interdependent; Because of This, Change in
One Institution Tends to Bring About Change in
Others 147
The Statuses, Roles, Values, and Norms Associated
with an Institution in One Society Frequently
Bear Little Resemblance to Those in Another
Society 148
B ox: Polygamy and Monogamy 149
Social Change: The Trend Toward Increasing
Specialization 149
Chapter Review 150
Chapter 10 Socialization 152
Nature and Nurture: Biological and Social
Processes 152
How Socialization Works 154
The Looking-Glass Self: Charles Horton
Cooley 155
The “I” and the “Me”: George Herbert
Mead 157
Family 160
School 161
Mass Media 162
Peer Groups 163
The Workplace 164
B ox: Rites of Passage 165

Resocialization and Total Institutions 166
B ox: Ponder 167
Chapter Review 167
Chapter 11 Deviance and Social Control 169
The Relativity of Deviance (What We
Already Know) 169
Nonsociological Theories of
Deviance 171
Sociological Theories of Deviance: Émile
Durkheim and Suicide 173
The Collective Conscience and Structural
Strain 173
Egoism and Anomie 174
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viii CONTENTS
More Structural Strain: Robert Merton and
Anomie 176
Anomie and Modern Social Structure 176

Responses to Anomie 177
Legitimate Versus Illegitimate Means 179
Learning to Be Deviant: Howard Becker’s Study
of Marijuana Use 179
Learning to Smoke 180
Learning to Perceive the Effects 181
Learning to Enjoy the Effects 182
The Societal Reaction Perspective: Labeling
Theory 183
The Functions of Deviance: Maintenance of the
Status Quo and Social Change 187
B ox: Ponder 187
A Caution About Crime Data 188
Deviance Is Not Immutable 189
Gays in the Military 191
Chapter Review 192
Chapter 12 Stratification and Inequality 195
Caste Systems 196
Estate Systems 199
B ox: A Year in the Life of the Peasant 200
Class Systems 202
Theoretical Conceptions of Class 203
B ox: Ponder 204
Some Words About Slavery 207
Social Mobility and Open Versus Closed
Systems 209
Chapter Review 210

Chapter 13 Inequality and Achievement: Social
Class 213
B ox: The Matthew Effect 217
Explaining Social Stratification 218
Cultural Explanations 219
Structural Explanations 220
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CONTENTS ix
B ox: Beyond Academics 223
The Pygmalion Effect: The Power of
Expectations 227
The Fallacy of Hard Work 228
B ox: Ponder 229
Social Mobility, Social Structure, and Social
Change 230
B ox: Measuring Inequality 231
Chapter Review 232
Chapter 14 Inequality and Ascription: Race, Ethnicity,
and Gender 237
Why a Dollar Is Not Always a Dollar 238
”Racial Surtax” on Mortgages 242

Prejudice 245
Discrimination 246
Discrimination and “Isms” 249
The Social Construction of Minority
Groups 254
Gender 257
B ox: Sex or Gender? 259
What to Do with What You’ve Learned? 260
Chapter Review 262
Afterword 266
References 268
Credits 278
Glossary/Index 279
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PREFACE
I t wasn’t until I was about halfway through my first decade of
teaching that I finally had the opportunity to teach Introduction
to Sociology. Did I want to teach Intro? You bet! I was
ecstatic. I had
been teaching various upper-division classes—research
methods,
social theory, criminology, law and society—but I wanted to be
the one who introduced sociology to students. I wanted to share
with students the enthusiasm that I felt for the entire sociologi-
cal enterprise and to expose them to the power of sociological
thought.

I tried to create an introductory course that would speak to the
typical first-year student who isn’t planning on majoring in
soci-
ology and, indeed, may not even know what sociology is. Even
among sociology majors, very few plan on becoming
sociologists.
Each semester, I ask my beginning students, “Why are you
here?
What is it about sociology that interests you?” The very
charitable
say, “I don’t know what sociology is, but I am sure that it will
be
interesting.” Mostly, students are honest: “I’m here to fulfill my
general education requirements.” A few are more specific: “I
have
to take a social science class and my advisor said that sociology
is
easier than economics or political science.”
I knew that once these students discovered sociology, they
would find merit in it. Even if they didn’t major in sociology,
they
would come away from the class with some important life
knowl-
edge. I quote Robert Bierstedt in my syllabus: “Sociology owns
a proper place not only among the sciences, but also among the
arts that liberate the human mind” (1960, 3). I paraphrase Peter
Berger to suggest that students will find one of the most impor-
tant lessons of sociology to be that “things are not what they
x
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PREFACE xi
seem” (1963, 23)—that sociological training encourages people
to look beyond the surface and to be suspicious of what “every-
body knows.” I tell them that it hardly matters what sort of
career
they are working toward: learning how to be skeptical and how
to think like a sociologist will help them understand and resolve
complex and abstract problems on the job.
So, I knew how I wanted to structure the course—we would
learn the basic concepts and then talk and read about how these
worked in the real world. But I couldn’t find a textbook whose
author had anticipated my wishes. I wanted a book that would
introduce students to sociology’s foundational concepts—the
sci-
entific method, culture, social structure, socialization, deviance,
inequality. I wanted a book that would not bury those concepts
inside tons of empirical information but would present them in
such a way that students could gain enough understanding to
apply them to what they read elsewhere and what they encoun-
tered in life. It was the sociological perspective I wanted these
students to come away with, not the details.
I was encouraged to pursue this vision by something I read
in an article by Frederick Campbell, a sociologist from the Uni-
versity of Washington. In the book he co-edited with Hubert
Blalock and Reece McGee, Campbell wrote that undergraduate
courses in sociology ought to focus on principles rather than
facts:
“The mastery of sociology has a different meaning in the con-
text of undergraduate education than in vocational training or a

graduate program. A baccalaureate degree in sociology seldom
prepares a student for a specific occupation or to pursue inde-
pendent research. Emphasis on the subject matter, then, has lit-
tle value if it means memorizing material that will soon go out
of date for a job that does not exist. Mastery should move away
from factual material and focus instead on the development of
the mind” (1985, 13).
The longer I taught introductory sociology, however, the
greater became my frustration with the available instructional
material. So, one summer, I sat down to write some introductory
and background materials for my students. My idea was that
I would introduce them to the concepts that sociologists use,
and we would then apply these to what we read in a variety of
sociological articles and to what we encountered in real life
(and
in the media). My goal was to provide my students with the
tools they needed to understand the social world through the
eyes of sociologists. As everyone who has taught introductory
courses probably knows, the foundational concepts of our dis-
cipline are not simple ones, and many students resist them. My
goal was not to simplify the concepts but to make them acces-
sible to students.
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xii PREFACE
The set of essays I wrote that summer—on the history of soci-
ology and the vocabulary of science, culture, social structure,
socialization, deviance, and inequality—seemed to serve my

students well. After students read them, we moved on with our
shared vocabulary to other works by sociologists and to discus-
sions of how these concepts applied to the real world. It
worked.
It was as Peter Berger had promised in his Invitation to
Sociology:
“It is not the excitement of coming upon the totally unfamiliar,
but rather the excitement of finding the familiar becoming
trans-
formed in its meaning. The fascination of sociology lies in the
fact
that its perspective makes us see in a new light the very world
in
which we have lived all our lives” (1963, 21). Although I omit-
ted much that is found in the typical sociology text (there are no
chapters on family, religion, or politics), the concepts I did
focus
on (institutions, roles, values, and so on) allowed us to have
rela-
tively sophisticated discussions of those topics.
Be warned: I am not one of those sociologists who write in
what Peter Berger called “a barbaric dialect.” I’ve taken C.
Wright
Mills’s caution to heart: “To get beyond sociological prose we
must get beyond the sociologist’s pose” (1959).
Notwithstanding
the fact that I once had a book rejected by a noted university
press
because it was “too much of a good read,” I’ve persisted in my
casual style and, whenever I couldn’t help it, have indulged my
odd sense of humor. Many sociological concepts are very com-
plex, and I think I have done justice to that complexity, but I
have
tried to do it in ways that are accessible to students.

NEW TO THIS EDITION
This edition uses updated statistics from the most recent
census
and other agencies. In response to suggestions from my readers,
I
continue to augment the discussions of topics that many
students
find difficult. In this edition, you will find new sections on the
relationship between correlation and causation, ethnography,
the
mutability of deviance and the relationship between gender and
income.
The goal of the book remains the same: to introduce students to
sociology in a way that makes the core concepts of our
discipline
accessible without losing the crucial complexity of these
concepts
in translation. Along the way, I hope that I have managed as
well
to convey my enthusiasm for sociology.
SUPPLEMENTS
Visit our Online Learning Center Web site at
http://www.mhhe
.com/mcintyre6e for student and instructor resources. This is a
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PREFACE xiii
combined Web site for both The Practical Skeptic: Core
Concepts in
Sociology, and its companion reader, The Practical Skeptic:
Readings
in Sociology.
For Students
Student resources include comprehensive self-quizzes for both
the text and reader.
For Instructors
The password-protected instructor portion of the Web site in-
cludes the instructor’s manual (written by the author), contain-
ing discussion questions and activities, examples of lectures,
tips
specifically targeting new instructors, a comprehensive test
bank,
and all the tools available to students. Also included is a sepa-
rate test bank for the reader with multiple choice, true/false, and
essay questions for each reading.
THE COMPANION READER
Created to serve as a companion to the text, The Practical
Skeptic:
Core Concepts in Sociology, this reader, The Practical
Skeptic: Read-
ings in Sociology, includes classic sociological writings as well
as
recent writings on fascinating topics of interest to students.
Cor-
responding to the conceptual organization of the text, each of
the
readings serves to illustrate key sociological concepts and ideas.

ACKNOWLEDGMENTS
My largest thanks go to the hundreds of students who have
read
The Practical Skeptic and shared their views of the text with
me.
Many thanks to the following reviewers whose comments and
suggestions shaped the sixth edition: Peter Adler, University of
Denver; Mitch Berbrier, University of Alabama in Huntsville;
Joslyn Brenton, North Carolina State University; Margaret
Dele-
hanty Kelly, University of Minnesota; Stacy Evans, Berkshire
Community College; Susan Eichenberger, Seton Hill University;
Catherine Leone, University of Wisconsin-Manitowoc; Pamela
McMullin-Messier, Central Washington University; Janice L.
Milner,
Century College; Megan Peterson, William Rainey Harper
College;
Carly Sebastian, Mount Wachusett Community College.
Thank you to the following reviewers whose helpful comments
and suggestions helped us in our preparation of the fifth edition:
Elizabeth Larsen, California University of Pennsylvania; Lynda
Dickson, University of Colorado at Colorado Springs; Kiren
Ghei, Delta College; Thomas B. Gold, University of California
at
Berkeley; Patti Guiffre, Texas State University; Michael
Collins,
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xiv PREFACE
UW Fox Valley in Menasha; Linda C. Evans, Drake University;
Carolyn Kapinus, Ball State University; Carla Norris-Raynbird,
Bemidji State University, C. Stephen Glennon, Iowa Western
Community College; Doug Degher, North Arizona University;
Kim Hennessee, Ball State University.
The fourth edition manuscript was reviewed by the following
people, who responded with suggestions and pointed out neces-
sary revisions, for which I am deeply grateful: Diane C. Bates,
The
College of New Jersey; Gretchen DeHart, Community College
of
Vermont; Esther Horrocks, Villa Julie College; Michael C.
Maher,
Spoon River College; Lida V. Nedilsky, North Park University;
Deborah Thorne, Ohio University; and Craig Tollini, Western
Illi-
nois University.
I also appreciate the help of the third edition reviewers who
offered many helpful comments and suggestions: Deborah A.
Abowitz, Bucknell; Cheryl Albers, Buffalo State; Sue Cox,
Belle-
vue Community College; Derek Greenfield, Highline
Community
College; Tiffany Hayes, Green River Community College;
Barbara
Karcher, Kennesaw; Susan Ross, Lycoming College; and Ann S.
Stein, College of Charleston.
I thank the reviewers of the second edition for their thoughtful
reading: Jerry Barrish, Bellevue Community College; Debra

Cornelius,
Shippensburg University; Jamie Dangler, SUNY Cortland;
Laurel R.
Davis, Springfield College; Gloria Y. Gadsden, Fairleigh
Dickinson
University; Alan G. Hill, Delta College; Susan E. Humphers-
Ginther,
Moorhead State University; Katherine Johnson, Niagara County
Com-
munity College; Barbara Karcher, Kennesaw State University;
Debra
C. Lemke, Western Maryland College; Patricia A. Masters,
George
Mason University; Susan McWilliams, University of Southern
Maine;
Dan Pence, Southern Utah University; Marcella Thompson,
Univer-
sity of Arkansas; Georgeanna M. Tryban, Indiana State
University;
and Brenda S. Zicha, Charles Stewart Mott Community College.
I would also like to thank the reviewers of the first edition:
Peter Adler, University of Denver; Sheila M. Cordray, Oregon
State University; Mary Patrice Erdmans, University of North
Carolina–Greensboro; Valerie Jenness, University of
California–
Irvine; Frances V. Moulder, Three Rivers Community–
Technical
College; Karl T. Pfeiffer, University of Alaska; Martha L.
Shockey,
St. Ambrose University; Lisa Troyer, University of Iowa; and
Georgeanna M. Tryban, Indiana State University.
Lisa J. McIntyre
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1
INTRODUCTION
H ave you ever caught yourself thinking about things that
people do? Have you ever asked yourself, for example,
questions about everyday things like these:
Why do some students always sit in the back of the classroom
while others always sit in the front?
Why do African Americans on predominantly white college
campuses frequently say “hi” to other African Americans,
even if they don’t know them?
Why do we dress baby girls in pink and baby boys in blue?
Why do people generally not look at one another in
elevators—and always face front?
Why do young men, but not young women, spit?
Why do we go to such lengths to pretend we aren’t embar-
rassed when we have to get naked in front of a doctor?
Why do people from small towns tend to act differently from
people from big cities?
Why are most people less willing to seek professional help for

mental or emotional problems than for physical problems?
Sociologists are trained to find answers to questions about
people’s behavior. We are especially interested in
understanding
the effects that people have on one another.
Sociologists are convinced that much of people’s behavior is a
result of what other people do. A sociologist reviewing the
ques-
tions just listed would likely say that many of these behaviors
result from how people are influenced by others.
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2 INTRODUCTION
This sociological conviction might offend you. Certainly, I like
to think of myself as independent minded; you, too, may like to
think that your behaviors are the results of choices you have
made
of your own free will. But allow me to persuade you that to
under-
stand people’s behavior and the choices they make, it is
important
to take into account the influence of others in their
environment.
Even when you think you are making your own choices, often
you are picking only from the fairly limited range of options
that

others allow you. The simple fact is that, depending on your
position
in society—your age, gender, race, social class, and so on—
people
expect and allow you to act in various ways. Society places
restric-
tions on your behavior with very little regard for your
preferences.
Of course, you can choose not to live up to society’s
expectations,
but if you decide to be contrary, you will pay a price. And,
depending
on the seriousness of your infraction, that price can range from
end-
less nagging by your parents to a prison sentence and even to
death!
Consider marriage. Surely, the decisions whether to get mar-
ried, whom to marry, and when are very personal decisions.
Actu-
ally, they are not. Examine this matter carefully and you will
find
that your marital choices are rather restricted. For example, in
the
United States, you can be married to only one person at a time.
And
(at least for the time being) you can marry only a person of the
opposite sex—unless you live in one of the several states that
allow
same-sex marriage. Until the late 1960s, many states even had
laws
requiring people to marry within their own racial group—if you
broke these laws, you could be sent to prison or exiled from the
state. 1

Chances are, your family places even more restrictions on your
marriage choices. Have you noticed that there are, in effect,
family
“rules” about whom you can marry? These rules may be
unspoken
but clear: Your parents may wish you to wed someone of your
own
race and religion and from the same educational and social-class
back-
ground. Of course, there is no law that says family rules must
be fol-
lowed, but we all know that families have ways of making us
suffer.
Even your friends may restrict your marriage (and dating)
choices. Consider how they would make you suffer if you
started
to date some seriously weird geek.
You really have to wonder, why does everyone care so much
about whom we marry? Now that is a sociological question!
So, What Is Sociology?
Here is a technical definition of sociology: Sociology is the
scientific
study of interactions and relations among human beings.
1 Some states have never rescinded these laws, but because
such racial restrictions
were ruled unconstitutional by the U.S. Supreme Court in 1967,
even where they do
exist, they do not have the force of law.
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The Value of Sociology to Students 3
I hope the word scientific caught your attention. Including
that
word in the definition is a reminder that …
American Society for Legal History
Bringing the Law Back into the History of the Civil Rights
Movement
Author(s): KENNETH W. MACK
Source: Law and History Review, Vol. 27, No. 3 (Fall 2009),
pp. 657-669
Published by: American Society for Legal History
Stable URL: https://www.jstor.org/stable/40646061
Accessed: 31-12-2018 15:35 UTC
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Bringing the Law Back into the History
of the Civil Rights Movement
KENNETH W. MACK
It is a pleasure to comment on Nancy MacLean's hugely
important book
Freedom is Not Enough: The Opening of the American
Workplace1 as an
example of what I might call "bringing the law back in" to the
history of
the civil rights movement. A generation ago, the idea that law
needed to

be introduced into this history would have seemed nonsensical.
At that
time, law provided one of the central touchstones in the
historical nar-
rative of the struggle for racial equality in American life.
Scholarship in
this area built on C. Vann Woodward's pioneering work on the
rise of Jim
Crow, which itself was written shortly after Woodward's
participation in
the Brown v. Board of Education litigation.2 The dominant
narrative began
with the legal construction of Jim Crow in the late nineteenth
century and
continued with the founding of the NAACP. Other actors came
along at
various points in the story, prominent among them New Deal-
era racial
liberals, World War II-era activists, midcentury social
scientists, Southern
civil rights leaders and movements, and eventually black
power. The end
point was marked by the litigation and legislative victories of
the 1950s
and '60s, which finally wrote back into law what had been
taken away by
segregationist white Southerners and a compliant Supreme
Court in the
1 . Nancy MacLean, Freedom is Not Enough: The Opening of
the American Workplace
(Cambridge: Harvard University Press, 2006).
2. C. Vann Woodward, The Strange Career of Jim Crow, 3rd
rev. ed. (New York: Oxford
University Press, 1974).

Kenneth W. Mack is a professor of law at Harvard Law School
<[email protected]
.harvard.edu>.
Law and History Review Fall 2009, Vol. 27, No. 3
© 2009 by the Board of Trustees of the University of Illinois
2018 15:35:26 UTC
658 Law and History Review, Fall 2009
late nineteenth century. The implicit methodological take on
law was that
state and federal statutes, as well as court decisions, provided
an impor-
tant impetus, or at the very least a validation, for racial change
- first for
white Southerners as they created the Jim Crow legal regime
and later for
segregation's opponents as they reinscribed racial equality onto
the core
narrative of American life.3
In the last generation, however, this central preoccupation with
law has
come under attack. In the social history of the civil rights
movement, the
new model that emerged trained its sights on community-level
protest and
organization. Its central project was to decenter the NAACP,
the Supreme

Court, Congress, Martin Luther King, Jr., and the Congress of
Racial Equal-
ity (CORE) as the central players in the story. Instead, scholars
focused on
the ways that activists and local actors built up movements and
alliances
outside the bounds of, or in conflict with, the figures and
organizations
who once dominated the story.4 Of course, there were other
new brands
of civil rights scholarship, inflected through labor history,
international
history, and the history of white Northerners and Southerners
during the
civil rights era. In taking on the old scholarship on its own turf,
however,
local studies - particularly those of the Southern movement -
often set the
tone. If there was a methodological take on law in the new
histories, it was
often that law was epiphenomenal, not that important to local
movement
actors, and sometimes even corrosive of local community
organizing.5
3. See, for example, Harvard Sitkoff, The Struggle for Black
Equality, 1954-1980 (New
York: Farar, Straus and Giroux; Hill and Wang, 1981);
Woodward, Strange Career.
4. See, for example, Charles M. Payne, I've Got the Light of
Freedom: The Organizing
Tradition and the Mississippi Freedom Struggle (1995;
Berkeley: University of California
Press, 2007); John Dittmer, Local People: The Struggle for
Civil Rights in Mississippi (Urbana:

University of Illinois Press, 1994). For good summaries of this
scholarly shift, see Tomiko
Brown-Nagin, "The Impact of Lawyer-Client Disengagement on
the NAACP's Campaign to
Implement Brown v. Board of Education in Atlanta," in From
the Grassroots to the Supreme
Court: Brown v. Board of Education and American Democracy,
ed. Peter Lau (Durham: Duke
University Press, 2004), 227, 228; Payne, I've Got the Light of
Freedom, 413^1; Steven
Lawson, "Freedom Then, Freedom Now: The Historiography of
the Civil Rights Movement,"
American Historical Review 96 (1991): 456.
5. Payne, I've Got the Light of Freedom, 315; Doug Me Adam,
Political Process and the
Development of Black Insurgency 1930-1970, 2nd ed.
(Chicago: University of Chicago Press,
1999), 133-34, 184-85; Aldon D. Morris, The Origins of the
Civil Rights Movement: Black
Communities Organizing for Change (New York: Free Press,
1984), 35-37. By contrast, many
scholars who focus on the Northern civil rights movement,
which operated in a region without
explicit legal segregation, have explicitly grappled with law as
a site of organization and as a
means of structuring the choices made by movement actors and
their opponents. Thomas J.
Sugrue, Sweet Land of Liberty: The Forgotten Struggle for
Civil Rights in the North (New York:
Random House, 2008); Martha Biondi, To Stand and Fight: The
Struggle for Civil Rights in
New York City (Cambridge: Harvard University Press, 2003);
Robert Self, American Babylon:

2018 15:35:26 UTC
Bringing the Law Back 659
The legal history of the civil rights movement moved in the
opposite
direction, and focused on the NAACP and the Supreme Court.
Institutional
histories of the NAACP and biographies of famous civil rights
figures domi-
nated the field. In its latest incarnation, this work has diverged
completely
from the central concerns of historians, and, most notably in
the work of
Michael Klarman, has focused on the political science-inspired
question
of whether the Supreme Court, acting alone, can effect social
change.6
The genius of Nancy's book - aside from its breadth, depth and
subtle-
ty - is that it is the first major synthesis to bring law back into
the social
history of civil rights politics. Nancy comes from the tradition
of social
history, with its focus on how people remake their political
worlds in ev-
eryday life. But the centerpiece of her story is Title VII of the
Civil Rights
Act of 1964 and how ordinary people responded to the bare
grant of legal
freedom that the statute conferred and found that it was not
enough. Be-

ginning in the mid-1960s, these activists and other actors began
to remake
what Nancy calls the "common sense" of America's ordinary
expectations
of race, gender, and place in the workforce, and by extension in
the larger
realm of public life (2). In fact, Freedom is Not Enough could
take its place
alongside the mainstream 1980s and 1990s legal histories
written outside
the civil rights context - with its model of law as an arena of
struggle in
which contending groups and individuals try to put their own
stamp on
what citizenship means in American life.7
Indeed, the story as it emerges here compliments some of the
newest
work in the legal history of the civil rights movement. For
instance, Nancy
shows how both NAACP and Legal Defense Fund (LDF)
lawyers were key
Race and the Struggle for Postwar Oakland (Princeton:
Princeton University Press, 2003);
Jeanne Theoharis and Komozi Woodard, Freedom North: Black
Freedom Struggles Outside
the South 1940-1980 (New York: Palgrave Macmillan, 2003).
6. Michael J. Klarman, From Jim Crow to Civil Rights: The
Supreme Court and the Struggle
for Racial Equality (New York: Oxford University Press,
2004); Mark V. Tushnet, Making
Civil Rights Law: Thurgood Marshall and the Supreme Court,
1936-1961 (Oxford University
Press, 1994); Genna Rae McNeil, Groundwork: Charles

Hamilton Houston and the Struggle
for Civil Rights (Philadelphia: University of Pennsylvania
Press, 1983); Gilbert Ware, Wil-
liam Hastie: Grace Under Pressure (New York: Oxford
University Press, 1984). Klarman
generalized the argument first put forth in Gerald N.
Rosenberg, The Hollow Hope: Can
Courts Bring About Social Change? (Chicago: University of
Chicago Press, 1991), especially
pages 157-69, 336-42. Mark Tushnet's history of the NAACP's
desegregation campaign
was an important exception, with its grounding of the campaign
in its connection to local
communities. Mark V. Tushnet, The NAACP's Legal Strategy
Against Segregated Education,
1925-1950 (Chapel Hill: University of North Carolina Press,
1987).
7. lhe most prominent examples or that vein or legal history are
the essays collected in
the bicentennial issue of the Journal of American History,
republished as The Constitution
and American Life, ed. David Thelen (Ithaca: Cornell
University Press, 1988).
2018 15:35:26 UTC
players in perhaps the most successful of the early movements
for racial
equality in the workplace - that which focused on

desegregating Southern
mill workforces (76-90, 108-9). She challenges the common
interpretation of
the NAACP as a unitary, elite-driven organization caught up in
noneconomic
rights and the struggle to implement Brown in the South, and
which ceded
the cutting edge to other groups. Some NAACP and LDF
leaders, notably
Roy Wilkins and Thurgood Marshall, coexisted uneasily with
newer players
on the scene as the direct action phase of the movement heated
up. Both
organizations, however, contained a variety of individuals and
institutional
frameworks for advancing their agendas, and both found new
roles for their
advocates and lawyers at the leading edge of reform once Title
VII offered
them the chance to work with activists and movements on the
ground and
change the common sense that governed the American
workplace. There
simply hasn't been enough exploration of the NAACP archives
in the years
before and after Brown, as the main line of scholarship has
followed the
familiar school desegregation litigation tracks.8
Some of the new work that has done this, notably by Risa
Goluboff, Da-
vid Engstrom, Sophia Lee, and Paul Frymer, has described an
NAACP that
drove the economic agenda of civil rights in a number of fields
and institu-
tions in the post-World War II era. Goluboff has uncovered the

organiza-
tion's labor discrimination litigation of the 1940s which helped
redefine just
what "civil rights" meant in American legal discourse.
Engstrom has found
that the NAACP was a leading player in defining the structure
and agenda
of the state-level FEPCs that proliferated once the drive for a
permanent
federal FEPC stalled in the late 1940s, and that this agenda
yielded legisla-
tive proposals that were sometimes innovative even by post-
1964 standards.
Lee has examined the NAACP's Cold War-era administrative
litigation
before the National Labor Relations Board that ultimately
resulted in a rul-
ing that incorporated a nondiscrimination mandate into unions'
duty of fair
representation. Frymer has briefly surveyed the NAACP's labor
advocacy
during the two decades after World War II and has found an
organization
that mobilized a variety of aggressive strategies in and out of
court that,
by the 1960s, began to produce litigation that was far more
radical than
anything the legislature or executive branch was prepared to
entertain.9
While Goluboff argues that the labor cases that she chronicles
disappeared
8. For an essential corrective to the standard scholarly
orientation, see Patricia Sullivan,
Lift Every Voice: The NAACP and the Making of the Civil
Rights Movement (New York:

The New Press, 2009).
9. Risa Goluboff, The Lost Promise of Civil Rights (Cambodge:
Harvard University Press,
2007); David Freeman Engstrom, "The Taft Proposal of 1946
and the (Non-) Making of
American Fair Employment Law," Green Bag 2d 9 (2006): 181;
David Freeman Engstrom,
"The Lost Origins of American Fair Employment Law: State
Fair Employment Practices
2018 15:35:26 UTC
around 1950, taken together the work of these scholars suggest,
as I have
argued elsewhere, that there are "reasons to doubt" the standard
narrative
of a "pervasive, coherent, and stable legal liberalism" emerging
by 1950
that replaced the social democratic civil rights politics of the
previous de-
cades with a focus on Brown, formal noneconomic rights, and
elite visions
of civil rights politics.10 Nancy takes this story straight
through the 1970s,
and points to an underemphasized aspect of this process: civil
rights advo-
cates changed everyday understandings of ordinary Americans
about who
belongs in what jobs, producing a ripple effect that continues

to transform
the nation's workforces and its public life.
Nancy's book also nicely compliments current work in legal
history in
showing how labor market regulation was key to the attack that
civil rights
activists launched against racial exclusion in the mill and
construction
industries in the aftermath of Title VII. Government contracts
are a crucial
factor in her story and provided the lever that allowed activists
to hold a
potential club over the heads of both private employers and
unions - and
just as importantly, to offer an ideological justification for that
position
that fit comfortably within the tenets of post-New Deal liberal
politics (82,
95-96). Indeed, she takes forward the story that has been
mapped out in
the work of scholars such Willie Forbath, Risa Goluboff, and
myself, who
have argued that New Deal-era labor market regulation and
government
contracts provided the opening wedge that allowed civil rights
progressives
to begin to describe and attack race discrimination in private
life.11
Bureaus and the Politics of Regulatory Design, 1943-1964"
(PhD. diss., Yale University,
2006), 24-264; Sophia Z. Lee, "Hotspots in a Cold War: The
NAACP's Postwar Workplace
Constitutionalism, 1948-1964," Law and History Review 26

(2008): 327; Paul Frymer, Black
and Blue: African Americans, the Labor Movement, and the
Decline of the Democratic Party
(Princeton: Princeton University Press, 2008).
10. Kenneth W. Mack, "Rethinking Civil Rights Lawyering and
Politics in the Era before
Brown, Yale Law Journal 1 15 (2005): 256, 353. Of course, one
can debate the economic and
political consequences of the NAACP's workplace advocacy, as
do both Judith Stein and
Paul Frymer in asserting that the civil rights bar's creative
advocacy was channeled by the
structure of the political and legal system into channels that
blunted its radical potential. Stein
argues that Title VII litigation was conducted within a narrow
framework that contributed to
the decline of the industrial workforce. Frymer is far more
admiring of the radicalism of the
civil rights lawyers' efforts, but argues that those efforts,
guided by existing state structures,
drove a wedge between the civil rights movement and
organized labor. Judith Stein, Running
Steel, Running America: Race, Economic Policy, and the
Decline of Liberalism (Chapel Hill:
University of North Carolina Press, 1998), 69-91; Frymer,
Black and Blue, 44-97.
1 1 . William Forbath, "Caste, Class, and Equal Citizenship,"
Michigan Law Review 98
(1999): 1; Goluboff, Lost Promise of Civil Rights, 81-1 10;
Mack, "Rethinking Civil Rights
Lawyering and Politics," 331^-2; Kenneth W. Mack, "Law and
Mass Politics in the Making
of the Civil Rights Lawyer, 1931-1941," Journal of American
History 93 (2006): 37, 62.

2018 15:35:26 UTC
Perhaps the most important of these progressives was Charles
Houston
who, shortly before his untimely death in 1950, offered a vision
of New
Deal-era regulation of economic life as a basis for attacking
race discrimi-
nation by private actors in a wide swath of industry. Houston
emerged as
perhaps the dominant player in shaping the approach of liberal
organiza-
tions to the emerging state-level FEPC regime.12 His
unfinished work gives
us much to consider as we contemplate the federal government
taking a
financial stake in large sectors of the twenty-first-century
economy, and
as we consider the new racial politics that may attach to the
nation's first
African American president.
Finally, Nancy's book is important for its amazingly broad
scope. Tak-
ing in African Americans, Mexican Americans, women's rights
reformers,
Jewish activists, and political conservatives in one book shows
one way
to move beyond what historians such as Scott Kurashige have

called the
"binary logic" of race relations history, and to cover more
ground than
would ordinarily seem possible to do in one monograph.13
I'd like to use the remainder of my space to return to
methodological
questions raised by the fact that Nancy is a social historian,
and to offer
some thoughts on how a legal historian might react to the book.
To make
my own methodological commitments clear, I come from the
Legal Real-
ist tradition, and thus tend to focus my efforts on the gaps,
conflicts, and
ambiguities in formal law, and on the legal contours of social
life outside
formal institutions of law. I'd like to suggest that a realist
perspective may
have something to contribute to Nancy's pathbreaking work.14
The framing device encompassed in Freedom is Not Enough is
actually
a formalist, rather than a realist one. The book is framed by
Lyndon John-
son's famous 1965 speech at Howard University, where the
President told
Americans bluntly that the recent civil rights legislation had
forced them
to face up to the proposition that "freedom is not enough" to
guaranty true
racial equality. Johnson told his mostly black listeners, as well
as the na-
tion, that Title VII and its accompanying legislation merely
granted formal
equality - freedom from facially exclusionary practices - to

members of
previously subordinated racial groups (5, 73-74). Nancy's book
picks up on
this interpretation to argue that the issue of substantive
equality - the actual
12. Mack, "Rethinking Civil Rights Lawyering and Politics,"
344-45; David Freeman
Engstrom, "The Lost Origins of American Fair Employment
Law: Regulatory Choice and
the Making of Modern Civil Rights, 1943-1964" (unpublished
paper, 2009), 63 & n. 277.
13. Scott Kurashige, The Shifting Grounds of Race: Black and
Japanese Americans in
the Making of Multiethnic Los Angeles (Princeton: Princeton
University Press, 2008), 6.
14. The exact definitions of Legal Realism and formalism
remain hotly contested to this
day. My description of realism is strongly influenced by the
big-tent definition offered in
William W. Fisher III, Morton J. Horwitz, and Thomas Reed,
eds., American Legal Realism
(New York: Oxford University Press, 1993), xi-xv.
2018 15:35:26 UTC
guaranty of inclusion in workplaces around the nation - would
come to the

fore only when activists entered the fray in the years following
the statute's
enactment. At one level, the book might be simply stating a
truism known to
lawyers and nonlawyers alike - that statutes are not self-
executing without
some further action.15 But I think that, given the weight which
this framing
device bears in the text, she means more than this. The book
seems to rely
on the distinction between one kind of equality that the statute
confers, and
another type of equality that only comes to the fore once
ordinary people
and activists - who tend to drive the story in much of social
history - come
into play.
In black politics, the analogue to the distinction that Johnson
mobilized
was Bayard Rustin's famous essay, "From Protest to Politics,"
which ap-
peared not long before Johnson delivered his speech. Rustin
divided the
civil rights movement into its classical phase (1954-64), when
African
Americans pushed for the removal of formal barriers to
equality, and its
political phase, when they began to push for substantive
equality in eco-
nomic life, education, and other areas.16 Both Johnson and
Rustin relied
on the distinction between formal equality (removing explicit
barriers to
participation) and substantive equality (actual African
American participa-

tion in the nation's institutions). In their telling, the issue of
substantive
equality emerges only when social movements try to put formal
rights into
practice. I'd like to suggest that the distinction isn't so neat.
In fact, the book's interpretation of the period before Title VII
was enacted
is somewhat conventional (unlike what it does with the statute's
aftermath).
In this telling, the rejection of a permanent federal FEPC in the
late 1940s
signaled the end of the road for nondiscrimination rights in the
workplace
until 1964. There was advocacy around these issues, to be sure
- for in-
stance, in state FEPCs, in the labor movement, and within the
Truman ad-
ministration. There was no real debate, however, about the
legal contours of
the right to nondiscriminatory employment until social
movement activists
renewed the fight during the 1960s (30, 38^4).
However, recent work in legal history calls this periodization
into ques-
tion. For instance, Sophia Lee has shown that the lawyers and
activists
within the NAACP's national office were steadily working their
way to-
15. Indeed, NAACP labor activist Herbert Hill made this exact
point in the aftermath
of the statute's enactment: "Title VII not self-enforcing."
Nancy MacLean, "Achieving the

Promise of the Civil Rights Act: Herbert Hill and the NAACP's
Fight for Jobs and Justice,"
Labor: Studies in Working-Class History of the Americas 3
(2006): 13, 14.
16. "From Protest to Politics: The Future of the Civil Rights
Movement," in Time on Two
Crosses: The Collected Writings of Bayard Rustin, ed. Devon
W. Carbado and Donald Weise
(San Francisco: Cleis Press, 2003), 1 16. Rustin's recent
biographer notes that Johnson's Howard
speech "framed civil rights in terms that Rustin himself might
have crafted." John D'Emilio,
Lost Prophet: The Life and Times of Bayard Rustin (New York:
Free Press, 2003), 417.
2018 15:35:26 UTC
wards the issue of substantive equality as early as the 1950s, in
little-known
labor union litigation before the National Labor Relations
Board. They
took on, as well, another problem that is typically seen as not
reemerging
until the 1960s - the question of whether legal mandates
reached putatively
private conduct by discriminatory unions. Anthony Chen has
done com-
plimentary work in his recent article on opposition to state-
level FEPCs,

where opponents charged that nondiscrimination mandates
would result in
"quotas" that would guarantee minority inclusion in the
workforce. In 1946,
Republican Senator Robert Taft went so far as to propose a new
federal
FEPC that would have been empowered to grant relief that,
under some
circumstances, might fairly be read to include group-based
representation in
the workplace. From the moment the FEPCs were proposed,
they brought
to the table the question of what form of "equality" they were
supposed to
foster. Indeed, the debate goes even further back to the New
Deal era, when
the black boycott movements for jobs in African American
neighborhoods
and the movement for racial equality within the government
contracting
workforce demanded, and received, mandates for the inclusion
of specific
numbers of African Americans in the workplace.17
I'd like to suggest that Rustin, and Johnson, exhibited a degree
of histori-
cal blindness when they argued that the previous movement had
focused
solely on formal equality, while substantive equality was the
work of the
future. As a veteran of the left branch of civil rights politics,
Rustin must
have known this to be untrue. There is a good chance that
Johnson and
his aides did also. Indeed, Richard Goodwin, the White House
aide who

helped draft Johnson's speech, was a lawyer and a former law
clerk to
Justice Felix Frankfurter, who himself had been a proto-realist
figure in his
youth. By 1965, however, Rustin was shedding his own
vagabond past and
moving to a more respectable place within the movement, while
Johnson
and his advisors were trying to convince the American public
that the
struggle for racial equality was not over. Each had powerful
incentives to
17. Lee, "Hotspots in a Cold War," 328, 366-68; Anthony
Chen, "The Hitlerian Rule of
Quotas': Racial Conservatism and the Politics of Fair
Employment Legislation in New York
State, 1941-1945," Journal of American History 92 (2006):
1238; David Engstrom, "The
Taft Proposal of 1946"; Michèle F. Pacifico, '"Don't Buy
Where You Can't Work' : The New
Negro Alliance of Washington," Washington History 6 (1994):
67, 79-80; Robert Weaver,
"An Experiment in Negro Labor," Opportunity 14 (October
1936): 295; Marc W. Kruman,
"Quotas for Blacks: The Public Works Administration and the
Black Construction Worker,"
Labor History 16 (1975): 37, 44; Paul Moreno, From Direct
Action to Affirmative Action:
Fair Employment Law and Policy in America, 1933-1972
(Baton Rouge: LSU Press, 1997),
30-65. Taft's proposal was inartfully drafted, but group
representation is one fair reading of
its language. A number of observers within the NAACP and the
labor movement read it as
contemplating group-based relief and were uneasy with it for

that reason. Engstrom, "Lost
Origins of American Fair Employment Law," 151-53.
2018 15:35:26 UTC
suppress some of the contingency and malleability in the
history of civil
rights politics up to 1964, and at least some of that suppression
has made
it into our own histories of the movement.18
In addition, I'd like to note that in Nancy's narrative, the debate
over
substantive equality emerges "away" from law, as social
movement activ-
ists try to transform the formal rights encompassed within the
statute into
practical inclusion in the workforce. For a book about the
social conse-
quences that attach to a particular legal enactment, there is
only a limited
discussion of the enactment itself and the complex history and
debates that
preceded it. In Freedom is Not Enough, the engine that moves
the story
along is encompassed in the words and deeds of the job
seekers, workers
and activists who struggle with the statutory mandate of formal
equality.
But it's not at all clear that the statute itself grants only formal

rights - or
at least, that the issue of substantive equality emerges only
outside of the
formal bounds of law. Just to take one example, the legal
scholar Owen
Fiss spent the early part of his career showing that the equality
principle
encompassed in any nondiscrimination mandate actually
consists of two
principles, not one: (1) removal of formal barriers to
participation, and (2)
actual inclusion in American institutions.19 Indeed, as early as
1971, Fiss
argued that the employment law regime that emerged in the
aftermath of
Title VII was amenable to both interpretations.20 So it may
very well be …
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 renunciation 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 tribes,
(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.
Since the ratification of the fourteenth amendment, congress has
passed several acts for naturalizing Indians of certain tribes,
which would have been superfluous if they were, or might
become without any action of the government, citizens of the

United States.
'But an Indian cannot make himself a citizen of the United
States without the consent and co-operation of the government.
The fact that he has abandoned his nomadic life or tribal
relations, and adopted the habits and manners of civilized
people, may be a good reason why he should be made a citizen
of the United States, but does not of itself make him one. To be
a citizen of the United States is a political privilege which no
one, not born to, can assume without its consent in some form.
The plaintiff, not being a citizen of the United States under the
fourteenth amendment of the constitution, has been deprived of
no right secured by the fifteenth amendment, and cannot
maintain this action. Judgment affirmed.
Excerpts from the Dissenting Opinion in Elk v. Wilkins (1884)
by Justice Harlan
At the adoption of the constitution there were, in many of the

states, Indians, not members of any tribe, who constituted a part
of the people for whose benefit the state governments were
established. This is apparent from that clause of article 1, § 3,
which requires, in the apportionment of representatives and
direct taxes among the several states 'according to their
respective numbers,' the exclusion of 'Indians not taxed.' This
implies that there were, at that time, in the United States,
Indians who were taxed; that is, were subject to taxation by the
laws of the state of which they were residents. Indians not taxed
were those who held tribal relations, and therefore were not
subject to the authority of any state, and were subject only to
the authority of the United States, under the power conferred
upon congress in reference to Indian tribes in this country. The
same provision is retained in the fourteenth amendment.
By the act of April 9, 1866, entitled 'An act to protect all
persons in the United States in their civil rights, and furnish
means for their vindication,' (14 St. 27,) it is provided that 'all
persons born in the United States, and not subject to any foreign
power, excluding Indians not taxed, are hereby declared to be
citizens of the United States.' This, so far as we are aware, is
the first general enactment making persons of the Indian race
citizens of the United States. Numerous statutes and treaties
previously provided for all the individual members of particular
Indian tribes becoming, in certain contingencies, citizens of the
United States. But the act of 1866 reached Indians not in tribal
relations. Beyond question, by that act, national citizenship was
conferred directly upon all persons in this country, of whatever
race, (excluding only 'Indians not taxed,') who were born within
the territorial limits of the United States, and were not subject
to any foreign power.
The entire debate (Over the Civil Rights Act of 1866) shows,
with singular clearness, indeed, with absolute certainty, that no
senator who participated in it, whether in favor of or in
opposition to the measure, doubted that the bill as passed

admitted, and was intended to admit, to national citizenship
Indians who abandoned their tribal relations and became
residents of one of the states or territories, within the full
jurisdiction of the United States. It was so interpreted by
President Johnson, who, in his veto message, said: 'By the first
section of the bill all persons born in the United States, and not
subject to any foreign power, excluding Indians not taxed, are
declared to be citizens of the United States. This provision
comprehends the Chinese of the Pacific states, Indians subject
to taxation, the people called gypsies, as well as the entire race
designated as blacks, persons of color, negroes, mulattoes, and
persons of African blood. Every individual of those races, born
in the United States, is, by the bill, made a citizen of the United
States.'
If it be also said that, since the adoption of the fourteenth
amendment, congress has enacted statutes providing for the
citizenship of Indians, our answer is that those statutes had
reference to tribes, the members of which could not, while they
continued in tribal relations, acquire the citizenship granted by
the fourteenth amendment. Those statutes did not deal with
individual Indians who had severed their tribal connections and
were residents within the states of the Union, under the
complete jurisdiction of the United States. There is nothing in
the history of the adoption of the fourteenth amendment which,
in our opinion, justifies the conclusion that only those Indians
are included in its grant of citizenship who were, at the time of
their birth, subject to the complete jurisdiction of the United
States. As already stated, according to the doctrines of the
court, in this case,—if we do not wholly misapprehend the
effect of its decision,—the plaintiff, if born while his parents
were members of an Indian tribe, would not be embraced by the
amendment even had he been, at the time it was adopted, a
permanent resident of one of the states, subject to taxation, and,
in fact, paying property and personal taxes, to the full extent
required of the white race in the same state.

It seems to us that the fourteenth amendment, in so far as it was
intended to confer national citizenship upon persons of the
Indian race, is robbed of its vital force by a construction which
excludes from such citizenship those who, although born in
tribal relations, are within the complete jurisdiction of the
United States. There were, in some of our states and territories
at the time the amendment was submitted by congress, many
Indians who had finally left their tribes and come within the
complete jurisdiction of the United States. They were as fully
prepared for citizenship as were or are vast numbers of the
white and colored races in the same localities. Is it conceivable
that the statesmen who framed, the congress which submitted,
and the people who adopted that amendment intended to confer
citizenship, national and state, upon the entire population in this
country of African descent, (the larger part of which was shortly
before held in slavery,) and, by the same constitutional
provision, to exclude from such citizenship Indians who had
never been in slavery, and who, by becoming bona fide
residents of states and territories within the complete
jurisdiction of the United States, had evinced a purpose to
abandon their former mode of life, and become a part of the
people of the United States? If this question be answered in the
negative, as we think it must be, then we are justified in
withholding our assent to the doctrine which excludes the
plaintiff from the body of citizens of the United States upon the
ground that his parents were, when he was born, members of an
Indian tribe; for, if he can be excluded upon any such ground, it
must necessarily follow that the fourteenth amendment did not
grant citizenship even to Indians who, although born in tribal
relations, were, at its adoption, severed from their tribes,
subject to the complete jurisdiction as well of the United States
as of the state or territory in which they resided.

Excerpts from the Majority Opinion in U.S. v. Wong Kim Ark
(1898) by Justice Gray
The Fourteenth Amendment of the Constitution, in the
declaration that
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,
contemplates two sources of citizenship, and two only: birth and
naturalization. Citizenship by naturalization can only be
acquired by naturalization under the authority and in the forms
of law. But citizenship by birth is established by the mere fact
of birth under the circumstances defined in the Constitution.
Every person born in the United States, and subject to the
jurisdiction thereof, becomes at once a citizen of the United
States, and needs no naturalization. A person born out of the
jurisdiction of the United States can only become a citizen by
being naturalized, either by treaty, as in the case[p703] of the
annexation of foreign territory, or by authority of Congress,
exercised either by declaring certain classes of persons to be
citizens, as in the enactments conferring citizenship upon
foreign-born children of citizens, or by enabling foreigners
individually to become citizens by proceedings in the judicial
tribunals, as in the ordinary provisions of the naturalization
acts.
The power of naturalization, vested in Congress by the
Constitution, is a power to confer citizenship, not a power to
take it away. "A naturalized citizen," said Chief Justice
Marshall,
becomes a member of the society, possessing all the rights of a
native citizen, and standing, in the view of the Constitution, on
the footing of a native. The Constitution does not authorize
Congress to enlarge or abridge those rights. The simple power
of the National Legislature is to prescribe a uniform rule of

naturalization, and the exercise of this power exhausts it so far
as respects the individual. The Constitution then takes him up,
and, among other rights, extends to him the capacity of suing in
the courts of the United States, precisely under the same
circumstances under which a native might sue.
Osborn v. United States Bank, 9 Wheat. 738, 827. Congress
having no power to abridge the rights conferred by the
Constitution upon those who have become naturalized citizens
by virtue of acts of Congress, a fortiori no act or omission of
Congress, as to providing for the naturalization of parents or
children of a particular race, can affect citizenship acquired as a
birthright, by virtue of the Constitution itself, without any aid
of legislation. The Fourteenth Amendment, while it leaves the
power where it was before, in Congress, to regulate
naturalization, has conferred no authority upon Congress to
restrict the effect of birth, declared by the Constitution to
constitute a sufficient and complete right to citizenship.
No one doubts that the Amendment, as soon as it was
promulgated, applied to persons of African descent born in the
United States, wherever the birthplace of their parents might
have been, and yet, for two years afterwards, there was no
statute authorizing persons of that race to be naturalized. If the
omission or the refusal of Congress to permit certain[p704]
classes of persons to be made citizens by naturalization could
be allowed the effect of correspondingly restricting the classes
of persons who should become citizens.by birth, it would be in
the power of Congress, at any time, by striking negroes out of
the naturalization laws, and limiting those laws, as they were
formerly limited, to white persons only, to defeat the main
purpose of the Constitutional Amendment.
The fact, therefore, that acts of Congress or treaties have not
permitted Chinese persons born out of this country to become
citizens by naturalization, cannot exclude Chinese persons born
in this country from the operation of the broad and clear words
of the Constitution, "All persons born in the United States, and
subject to the jurisdiction thereof, are citizens of the United

States."
VII. Upon the facts agreed in this case, the American
citizenship which Wong Kim Ark acquired by birth within the
United States has not been lost or taken away by anything
happening since his birth. No doubt he might himself, after
coming of age, renounce this citizenship and become a citizen
of the country of his parents, or of any other country; for, by
our law, as solemnly declared by Congress, "the right of
expatriation is a natural and inherent right of all people," and
any declaration, instruction, opinion, order or direction of any
officer of the United States which denies, restricts, impairs or
questions the right of expatriation, is declared inconsistent with
the fundamental principles of the Republic.
. . .
Whether any act of himself or of his parents during his minority
could have the same effect is at least doubtful. But it would be
out of place to pursue that inquiry, inasmuch as it is expressly
agreed that his residence has always been in the United States,
and not elsewhere; that each of his temporary visits to China,
the one for some months when he was about seventeen years
old, and the other for something like a year about the time of
his coming of age, was made with the intention of returning,
and was followed by his actual return, to the United States, and
that said Wong Kim Ark has not, either by himself or his
parents acting[p705] for him, ever renounced his allegiance to
the United States, and that he has never done or committed any
act or thing to exclude him therefrom.
The evident intention, and the necessary effect, of the
submission of this case to the decision of the court upon the
facts agreed by the parties were to present for determination the
single question stated at the beginning of this opinion, namely,
whether a child born in the United States, of parent of Chinese
descent, who, at the time of his birth, are subjects of the
Emperor of China, but have a permanent domicil and residence
in the United States, and are there carrying on business, and are
not employed in any diplomatic or official capacity under the

Emperor of China, becomes at the time of his birth a citizen of
the United States. For the reasons above stated, this court is of
opinion that the question must be answered in the affirmative.
Excerpts from the Majority Opinion in Downes v. Bidwell by
Justice Brown (1901)

Excerpts from the Dissenting Opinion in Downes v. Bidwell by
Justice Harlan (1901)
In the opinion to which I have referred it is suggested that
conditions may arise when the annexation of distant possessions
may be desirable. 'If,' says that opinion, 'those possessions are
inhabited by alien races, differing from us in religion, customs,
laws, methods of taxation, and modes of thought, the
administration of government and justice, according to Anglo-
Saxon principles, may for a time be impossible; and the
question at once arises whether large concessions ought not to
be made for a time, that ultimately our own theories may be
carried out, and the blessings of a free government under the
Constitution extended to them. We decline to hold that there is
anything in the Constitution to forbid such action.' In my
judgment, the Constitution does not sustain any such theory of
our governmental system. Whether a particular race will or will
not assimilate with our people, and whether they can or cannot
with safety to our institutions be brought within the operation of
the Constitution, is a matter to be thought of when it is
proposed to acquire their territory by treaty. A mistake in the
acquisition of territory, although such acquisition seemed at the
time to be necessary, cannot be made the ground for violating
the Constitution or refusing to give full effect to its provisions.
The Constitution is not to be obeyed or disobeyed as the
circumstances of a particular crisis in our history may suggest
the one or the other course to be pursued. The People have
decreed that it shall be the supreme law of the land at all times.
When the acquisition of territory becomes complete, by cession,
the Constitution necessarily becomes the supreme law of such
new territory, and no power exists in any department of the
government to make 'concessions' that are inconsistent with its
provisions. The authority to make such concessions implies the
existence in Congress of power to declare that constitutional
provisions may be ignored under special or [182 U.S. 244, 385]

embarrassing circumstances. No such dispensing power exists in
any branch of our government. The Constitution is supreme over
every foot of territory, wherever situated, under the jurisdiction
of the United States, and its full operation cannot be stayed by
any branch of the government in order to meet what some may
suppose to be extraordinary emergencies. If the Constitution is
in force in any territory, it is in force there for every purpose
embraced by the objects for which the government was
ordained. Its authority cannot be displaced by concessions, even
if it be true, as asserted in argument in some of these cases, that
if the tariff act took effect in the Philippines of its own force,
the inhabitants of Mandanao, who live on imported rice, would
starve, because the import duty is many fold more than the
ordinary cost of the grain to them. The meaning of the
Constitution cannot depend upon accidental circumstances
arising out of the products of other countries or of this country.
We cannot violate the Constitution in order to serve particular
interests in our own or in foreign lands. Even this court, with its
tremendous power, must heed the mandate of the Constitution.
No one in official station, to whatever department of the
government he belongs, can disobey its commands without
violating the obligation of the oath he has taken. By
whomsoever and wherever power is exercised in the name and
under the authority of the United States, or of any branch of its
government, the validity or invalidity of that which is done
must be determined by the Constitution.
It would seem, according to the theories of some, that even if
Porto Rico is in and of the United States for many important
purposes, it is yet not a part of this country with the privilege of
protesting against a rule of taxation which Congress is expressly
forbidden by the Constitution from adopting as to any part of
the 'United States.' And this result comes from the failure of
Congress to use the word 'incorporate' in the Foraker act,
although by the same act all power exercised by the civil
government in Porto Rico is by authority of the United States,

and although this court has been given jurisdiction by writ of
error or appeal to re-examine the final judgments of the district
court of the United States established by Congress for that
territory. Suppose Congress had passed this act: 'Be it enacted
by the Senate and House of Representatives in Congress
assembled, That Porto Rico be and is hereby incorporated into
the United States as a territory,' would such a statute have
enlarged the scope or effect of the Foraker act? Would such a
statute have accomplished more than the Foraker act has done?
Indeed, would not such legislation have been regarded as most
extraordinary as well as unnecessary?
I am constrained to say that this idea of 'incorporation' has some
occult meaning which my mind does not apprehend. It is
enveloped in some mystery which I am unable to unravel.
In my opinion Porto Rico became, at least after the ratification
of the treaty with Spain, a part of and subject to the jurisdiction
of the United States in respect of all its territory and people,
and that Congress could not thereafter impose any duty, impost,
or excise with respect to that island and its inhabitants, which
departed from the rule of uniformity established by the
Constitution.
Excerpts from the Decision in Regan v. King by Judge

Adolphus St. Sure (1943)
ST. SURE, District Judge.
Plaintiff, a citizen of the United States and of the State of
California, a registered voter of San Francisco, sues the
Registrar of Voters of the City and County of San Francisco,
alleging that more than "2600 Japanese of the full blood born in
the United States and the State of California, of alien parents
born in the Empire of Japan," are erroneously registered to vote
in San Francisco. He further alleges that his rights and
privileges as an elector, secured to him by law, are impaired by
permitting ineligible persons [Japanese] to exercise the rights
and privileges of electors of the State of California. He prays
that the Registrar be directed to strike the names of all Japanese
from the register of voters on the ground that they are enemy
aliens, citizens of Japan, and therefore ineligible to citizenship
and the right to vote.
Defendant Registrar answers that Japanese born here are
citizens of the United States and as such are entitled to be
registered as voters, and asks to be dismissed with his costs.
This case is exceptional because the sole question it presents to
this court is one which has been definitely decided by the
United States Supreme Court: Is a person of the Japanese race,
born within the United States, a citizen? The question has been
answered in the affirmative in United States v. Wong Kim Ark, ,
18 S. Ct. 456, 42 L. Ed. 890; Morrison v. California, , 54 S. Ct.
281, 78 L. Ed. 664; and Perkins v. Elg, , 59 S. Ct. 884, 83 L.
Ed. 1320.
Counsel for plaintiff frankly stated that he was asking this court
to overrule the leading case of United States v. Wong Kim Ark,
supra, because he believed the decision was erroneous. Since
the decision was rendered it has been twice cited with approval
by the Supreme Court in Morrison v. California, supra, and in
Perkins v. Elg, supra. In the Morrison case Justice Cardozo,
speaking for the Court, said [, 54 S. Ct. 283, 78 L.Ed. 664]: "A

person of the Japanese race is a citizen of the United States …
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 enactment, 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
person of life, liberty, or property, without due process of law;
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

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