How One Little Footnote Changed History

Jul 28, 2015

On July 28, 1868, Secretary of State William H. Seward issued a proclamation certifying the ratification of the 14th Amendment to the U.S, Constitution. This amendment extended citizenship to anyone born in the United States; guaranteed equal protection, due process, and privileges and immunities; and tasked the federal government to enforce these rights for all citizens.

Justice Harlan Stone
Credit National Photo Company, Library of Congress Prints and Photographs

At the time, Americans understood that this amendment addressed citizenship rights for newly freed slaves. But in 1886, a court reporter interpreted the U.S. Supreme Court’s use of the amendment in its Santa Clara County v. Southern Pacific Railroad Company decision to extend 14th Amendment individual rights, in particular the equal protection clause, to corporations. While an earlier court decision alluded to the idea that corporations could have similar rights as people, the 1886 interpretation allowed the court to apply the 14th Amendment more broadly to economic cases, instead of African American civil rights cases, for the next 52 years.

The Court’s use of the 14th Amendment for economic purposes lasted until 1938. In Footnote Four of the United States v. Carolene Company opinion, Justice Harlan Stone declared that while the court could apply minimal scrutiny to economic regulation cases, dealing with “discrete and insular minorities” required heightened standards of review. This one footnote greatly influenced equal protection jurisprudence and judicial review by opening the door for an expanded interpretation of what “discrete and insular minorities” meant throughout the 20th century. Thus, Footnote Four reconnected the 14th Amendment to its civil rights origins, and helped lead to groundbreaking civil rights cases, from 1954’s Brown v. Board of Education decision to the recent decision on same-sex marriage.