The Fourteenth Amendment and the Transformation of Civil Rights

Abstract

This article traces two genealogies of civil rights, one of a concept, the other a term. At the time of the drafting and ratification of the Fourteenth Amendment, the term civil rights became associated with a concept of rights that had featured in antebellum struggles over the place of free people of color in American society. Republican lawmakers turned to this newly essential term of racial governance to make the case that freedom required government protect certain fundamental rights—such as the right to make contracts, hold property, and testify in court—but that beyond these rights racial discrimination might be permissible. After Reconstruction, civil rights took on different connotations, and by the mid-twentieth century the term became synonymous with racial antidiscrimination policy generally. Yet the Reconstruction concept of civil rights retained a vestigial presence in Fourteenth Amendment doctrine. Twentieth-century jurists revived this partially forgotten concept for the same reasons it had resonated during Reconstruction: because it justified expanded legal protections against racial discrimination while simultaneously justifying limits on those protections. Tracing the history of the two genealogies of civil rights offers a new perspective on the legacy of Reconstruction on modern American law.