Emergence of Equality as a Constitutional Value: The First Century

Equality as a constitutional value was unprecedented when it made its appearance in 1868 in the Equal Protection Clause of the Fourteenth Amendment. It reflected antebellum abolitionist ideals adopted hesitantly by Northern Republicans during Reconstruction, but these were incompatible with the expectations of most white Americans of the era, as well as with all previous American experiences. In this sense, equality was a revolutionary constitutional value. The framers of the Fourteenth Amendment intended the Equal Protection Clause and its embedded ideal of interracial equality to reverse the racist dicta of the Dred Scott opinion, to validate the Civil Rights Act of 1866, and to empower Congress to suppress counterrevolutionary violence aimed at the freedpeople and Unionists throughout the South. Regrettably, though, the United States Supreme Court betrayed these intentions in a series of restrictive decisions between 1873 and 1905 that had the effect of constitutionalizing the forms of apartheid and servitude that emerged in this era to subordinate African Americans