The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. Decisions by the Supreme Court that are accorded “landmark” status are chiefly remem­ bered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison1 was to the Marshall Court and Jefferson’s presidency, as Youngstown Sheet & Tube Co. v. Sawyer2 was to the Vinson Court and Truman’s presidency, and as Miranda v. Arizona3 was to the Warren Court and the tumultuous 1960s. But probably only serious students ofthe Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day ofthe month. Yet there are a few exceptions to this gen­ eralization. Activists on both sides ofthe abor­ tion controversy gather outside the Supreme Court Building each January 22nd, the anniver­ sary ofthe 1973 decision in Roe v. Wade.4 Stu­ dents of the presidency associate the transfer of executive power from Richard M. Nixon to Gerald R. Ford with July 24, 1974, when the Watergate tapes case5 was decided. And probably no date link is stronger than May 17, 1954, the day that Brown v. Board of Education (I)6 came down.7 That decision a half-century ago not only erased constitutional approval for state-enforced racial segregation in public schools (and, by implication, in all other official settings) but invigorated—jumpstarted , some would say—the modern civilrights movement. Among othermajordecisions, neitherRoe v. Wade nor Brown v. Board would ever have happened, however, without the Fourteenth Amendment. Ratified in 1868, this constitu­ tional legacy ofthe Civil War opened the door to substantial change in the relationship be­ tween the national and state governments. In combination with the Thirteenth Amendment of 1865, which abolished slavery, and the Fif­ teenth Amendment of 1870, which formally removed race as a criterion forvoting, the Four­ teenthAmendmenthasbeen calledthe “second American Constitution.”8 In particular, Brown was the end of a journey (and the start of another) that began with that amendment. In different ways, five recent books intersect the story ofthe Fourteenth Amendment at various points along the way. THE JUDICIAL BOOKSHELF 347 The major question surrounding the new Fourteenth Amendment in 1868 was the legal status of four million African Americans who had been slaves before December 1865 and the legal status of nearly half a million people of color, many residing in the middle Atlantic states, who had never been slaves or who had gained their freedom prior to the war. This photo depicts an Alexandria, Virginia slave pen in the 1860s. In contrast to the single objectives of the Thirteenth and Fifteenth Amendments, the Fourteenth was actually six amendments rolled into one. The first sentence of Section 1 ad­ dressed citizenship: “All persons born or nat­ uralized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Those twenty-eight words constitu­ tionally consigned to the trash heap of history Chief Justice Roger B. Taney’s conclusion in Scott v. Sandford9 that the framers ofthe Con­ stitution never intended African Americans to be included within the meaning of the word “citizens” and so they could “claim none of the rights and privileges which that instrument provide[d] for and secure[d] to citizens of the United States.”10 The second sentence of Section 1 pro­ claimed new, broad, but undefined restrictions on state power: No State shall make or enforce any law which shall abridge the privi­ leges or immunities of citizens ofthe United States; nor shall any State de­ prive any person of life, liberty, or property, without due process of law; nor deny to any person within its ju­ risdiction the equal protection of the laws. The first clause borrowed language from Article IV ofthe Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The second clause drew verbatim from the due 348...