President Andrew Johnson’s Reconstruction plan appeared at first to be severe for former Confederates, but pardons quickly restored political rights. The Union slave states, far more than the former Confederate states, enacted proscriptive measures such as loyalty oaths, registry laws, and disfranchisement. But these measures proved difficult to maintain. The intransigence of the former Confederate states and the president’s leniency caused the swift return of former Confederates to power. In reaction, Congress promulgated the Fourteenth Amendment with its lengthy provisions to penalize former traitors. Congressional Republicans and Northerners moved closer to accepting black suffrage.

African Americans and their white allies insisted that enfranchisement was necessary to reward black men for their loyalty and military service. The vote would allow the freedmen to protect themselves and the Union from white Southerners. Despite arguments that the formerly enslaved were unqualified to vote, that only states could determine who voted, and that race war would ensue, black suffrage gained increasing support. Northerners, shocked at the swift return of former Confederates to power in Presidential Reconstruction and the anti-black riots in Memphis and New Orleans, blamed President Andrew Johnson’s Reconstruction policy and supported Congressional Republicans in the 1866 mid-term elections, setting the stage for Congressional Reconstruction.

The woman suffrage movement sought to capture Congressional Reconstruction for its own agenda. Having unsuccessfully opposed the Fourteenth and Fifteenth Amendments for creating what Elizabeth Cady Stanton called an “aristocracy of sex,” the woman suffragists now declared that women as well as black men were enfranchised under the Reconstruction amendments. This New Departure did not survive Supreme Court scrutiny. In fact, women who voted were tried under the Enforcement Acts passed to protect black men’s suffrage rights. As the federal government proved unable to protect black male suffrage, woman suffragists argued that Congressional Reconstruction had failed because it had been incomplete. Because Congressional Reconstruction had not enfranchised women, it had betrayed the natural rights tradition on which suffrage rights were based. The failure to include women had doomed universal manhood suffrage.

The woman’s movement used northern women’s loyalty and war service to claim the suffrage. However, their former allies in the abolition movement proclaimed the post-Civil War period “The Negro’s Hour” and feared that woman suffrage would prove an impediment to black male suffrage. In a major setback for women, the Fourteenth Amendment included the word “male.” The equal rights movement splintered in the post-war period, as became apparent in an 1867 campaign in Kansas over black and woman suffrage. White suffragists became increasingly racist and elitist in their rhetoric, alienating many black women. Democrats promoted woman suffrage to show the absurdity of black male suffrage. The woman’s movement proved unable to exploit the Civil War, as black men were doing, to advance their cause.

Having wrested control over Reconstruction policy from President Andrew Johnson, Congressional Republicans wrote their own Reconstruction Act. In addition to considerable confusion over who was eligible to vote, white Southerners often refused to participate in the elections and constitutional convention process. Border South states were seeing the erosion of their proscriptive measures. Former Confederate states varied in the severity of the political disabilities they imposed on former Confederates. Like blacks and women, former Confederates claimed they needed the vote to protect themselves and the Union from a centralizing and oppressive federal government. At the same time, Congress was relieving many former Confederates of their Fourteenth Amendment-imposed inability to hold office. Despite much white southern rhetoric about the horrors of bayonet rule under the Reconstruction and Enforcement Acts, white Southerners used violence and fraud to regain control of the former Confederate states.

Discusses the place of presidential clemency in the presidencies of Ulysses S. Grant and Rutherford B. Hayes, particularly insofar as clemency was used by both presidents in winding down post-Civil War Reconstruction.

This chapter surveys current doctrine concerning the scope of Congress’s regulatory, taxing, and spending powers. The Court’s historic pattern of decisions both presents a study in constitutional change and illumines factors that sometimes make change difficult. Prior to the Great Depression and the New Deal, the Court struggled uncertainly to cabin Congress’s powers under Article I. But the Court, seemingly in response to political pressures, substantially abandoned that effort in 1937, when it began to interpret the Commerce Clause as giving Congress vast powers to regulate the national economy and the Taxing and Spending Clause as allowing it to create largesse-dispensing programs that the Founding generation could not have imagined. At least since the 1980s, a strain of conservative scholarship has maintained that the modern, swollen national government finds no justification in the original Constitution and that the Court should enforce the original design. This chapter traces the Court’s limited success in implementing a course correction and identifies the considerations that have given pause to conservative justices. It also describes the Court’s more aggressive efforts to limit congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments, all of which include express authorizations of Congress to “enforce” their substantive guarantees.

This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

Contrary to oft-repeated views, litigation over the KCIR did not result in a ban on compulsory arbitration: in the 1920s, it was understood that the KCIR cases showed compulsion was permissible in most of the era’s major industries. However, US Supreme Court rulings on the KCIR were important: the extremity of the KCIR’s design, and the self-discipline of its labor opponents, created cases that posed important legal questions in uniquely clear, simple form. Drawing from archival material as well as opinions, this chapter shows that KCIR-related litigation was seized upon as a chance to clarify the scope and character of state economic regulation authorized by the public interest, and whether the Fourteenth Amendment categorically protected peaceful, orderly strikes. Justice Taft’s 1923 ‘Wolff Packing Company’ opinion, typologizing regulation in the public interest, was a clarifying landmark underpinning the Court’s sharp anti-regulatory turn. Justice Brandeis’ 1926 Dorchy decision, flatly denying an absolute right to strike under the Fourteenth Amendment, was a stinging and enduring reversal for labor.

Chapter 3 encourages students to struggle with how some people have been geographically separated from Whites or divided within communities based on skin color, language, or cultural markers. This chapter explores how housing and education opportunities continue to be distinct today for different racialized populations, and the legal actions that have resulted from people living in segregated communities in the United States. Building on some of the most recent research on the relationships between law and segregation, the cases and excerpts in this chapter explore the role of law in forcing people to live in isolated neighborhoods, resulting in the depression of income for some and limiting the accumulation of wealth over generations based on race. Readers are asked to consider the ways in which local, state, and federal governments are responsible for ongoing inequities in the United States based on race, and the implications of such accountability.

This chapter details the formation of the MAS movement from the local teachers, students, artists, and activists to the national-level support (e.g., professional/scholarly organizations, hip hop/funk group Ozomatli, and cartoonist Lalo Alcaraz). Of particular importance was the formation of the “Tucson 11” – a group of MAS educators who filed a federal lawsuit challenging the constitutionality of the state law on First and Fourteenth Amendment grounds. Additionally, in this chapter, we explore both the importance of the documentary Precious Knowledge in supporting this movement and how the director’s alleged rape of one of the former MAS students was the beginning of lasting community wounds that ran throughout the movement.

On August 22, 2017, Judge Tashima issued a blistering ruling finding that state representatives created the law and banned MAS based upon racial animus and partisan political gain in violation of the First and Fourteenth Amendment rights of Mexican American students in TUSD. There was a massive local and national uproar, celebrating the end of this racist law. Though different Tucson factions claimed shared victory due to the ruling, persistent community divisions remained. This chapter details the post-ruling celebrations, the continued community divisions, a summary of where the key actors in this drama ended up, the current state of MAS in TUSD, and the national Ethnic Studies renaissance that the Tucson struggle spawned. Of equal importance, this chapter details how the lessons of the MAS controversy can help inform the work of those challenging Critical Race Theory bans throughout the country.

This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

Chapter 3 focuses on Anna E. Dickinson, a little-read but in her time central abolitionist and antiracist activist, lecturer, and novelist. A riveting speaker who was a major voice for Radical Republicans, Dickinson toured the country addressing mixed-gender audiences on abolition, women’s suffrage, the right for unions to organize, and antiracism. Dickinson’s first novel, What Answer? (1868), follows an interracial couple, William Surrey and Francesca Ercildoune, from their first meeting in 1861 to their deaths in 1863 at the hands of a New York Draft Riot mob. It ends with a climactic scene in which Francesca’s brother, Robert Ercildoune, accompanied by a white friend. attempts to vote in a local 1865 election and is barred by racist poll-goers. The novel takes on issues raised by the debates around the passage of the Fourteenth Amendment that were raging while Dickinson was writing What Answer? Both the Amendment and the novel take as their central theme Black citizenship, without which the losses of the Civil War, represented by the many amputee characters in the book, would have been in vain.

Reynolds v. McNichols is a 1973 opinion from the Tenth Circuit Court of Appeals. Although the plaintiff was never convicted of prostitution or diagosed with an infection, she was held, examined, and involuntarily treated for sexually transmitted infections under the city of Denver’s “hold and treat” ordinance. The Tenth Circuit rejected her due process and equal protection challenges to the ordinance. In her feminist rewrite, Professor Wendy Parmet questions the health officials’ assumptions that female sex workers are “the primary source of venereal disease” and that the city can only protect the public’s health by forcibly treating them. She holds that the application of the ordinance to the plaintiff was discriminatory and that, under the circumstances, the defendants’ forced treatment of the plaintiff violated her right to privacy and their failure to obtain a warrant before forcing her to submit to a medical examination or remain in detention constituted an unreasonable search. In her commentary, Professor Aziza Ahmed situates the case in terms of historical responses to sex work under the banner of public health.

The Roberts Court has erected nearly insurmountable burdens of proof under Title VII and the Fourteenth Amendment.

In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.