FS: This video is a project of the Annenberg Foundation Trust at Sunnylands. On September 17, 1787, delegates to the Constitutional Convention signed our nation's founding document in Philadelphia. To better understand the Constitution, 48 students from 12 Pennsylvania and California high schools traveled to the Supreme Court of the United States in December, 2006. They discussed the origins, nature, and importance of the 14th Amendment with Associate Justice of the Supreme Court, Ruth Bader Ginsburg. ♪ MUSIC ♪ STUDENT: My question is, what does equal protection under the law mean? STUDENT: What does due process mean? STUDENT: Why do we have the 14th Amendment, and what would we do...what would we lose if we didn't have it? JUSTICE RUTH BADER GINSBURG: The Equal Protection Clause is one of the two clauses in the 14th Amendment that's best known, and it provides that, "no state shall deny to any person the equal protection of the laws." And the Due Process clause, which immediately precedes the Equal Protection clause reads, "Nor shall any state deprive any person of life, liberty, or property without due process of law." Now, why do we have that 14th Amendment guaranteeing due process and equal protection? Did the original Constitution contain either provision? Indeed, there was a due process clause in the 5th Amendment, reading...just like the one in the 14th Amendment, "nor shall any person...be deprived of life, liberty, or property without due process of law." That's in the 5th Amendment. But, there was no counterpart to the Equal Protection Clause in the original Constitution. And...isn't that strange, when the instrument, the document that started it all, before the Constitution, was the Declaration of Independence in 1776 that said, "We hold these truths to be self-evident, that all men are created equal." So it was this dawning premise at the birth of our nation, that all persons are created equal. And yet, there's not a word about equality in the Constitution that's sent out for ratification in 1787. Now, why do you suppose that is so? Why don't we have an equality guarantee in the Constitution until 1868? Yes? STUDENT: Wasn't it true that many state constitutions already contained provisions for equality of all citizens? JUSTICE GINSBURG: Some states may have. Certainly all states did not. Yes? STUDENT: Justice Ginsburg; didn't... wasn't there argument over the legality of slavery in the new nation that was to be created, and didn't the framers not want to address the issue, so they left the issue of equality up to states as the previous? JUSTICE GINSBURG: That is exactly right. The word that is never used in the Constitution is slavery, but it was the burning problem. And...the original Constitution has certain imperfections. One of them is, in the very first article, the slave trade was allowed to continue until the year 1808. Another, that perhaps is not as well-known, but should be, is the Fugitive Slave clause that was in Article 4 of the Constitution. It doesn't use the word slavery, but it says, in effect, that if any person held in service in one state escapes into another, say, a slave escapes from Virginia into Massachusetts, then the state of Massachusetts would be bound to deliver up that party to the person who claims to be the owner. So our original Constitution doesn't have any equality provision in it, because some humans were held in bondage by other humans. Our Constitution didn't get perfected in that regard until after the Civil War. And so why do we have the 14th Amendment? To introduce...well, two reasons. The original Bill of Rights operated against the Federal government only, not against the states. It says in the First Amendment, Congress shall pass no law. The 14th Amendment is operative against the states of the United States, and it expresses this notion that Thomas Jefferson expressed earlier in the...in the Declaration of Independence, this equality norm. So we have the 14th Amendment to...tell the states of the United States that they, in addition to the federal government, must observe due process of law, and accord all people the equal protection of the laws. What do those provisions mean? Well, I think that the easiest way to capture what the Equal... The essence of equal protection is the word or words "human dignity." It was that all humans are entitled to respect, and no person, because of who he or she is, because of his or her birth status, is any less human and entitled to rights than any other person. That's equal protection. Due process of law has two sides to it. One is "due", meaning fair process of the law, that anyone who encounters the authority of government, or is involved in a controversy with another individual, is entitled to a fair process with notice, and a court that will judge impartially. That was one side of it. That was procedure. The other part has a...substantive component. For example, suppose a state passes a law, as a state did around the time of World War I, when there was much anti-German sentiment. And the law is that the German language shall not be taught in any school, public or private. And parents whose ancestry is German would like their children to learn in school that language. The state law says that's impermissible. Well suppose you were such a parent. What would you do? We could make it any language. Suppose the state of Pennsylvania should decide it doesn't want Chinese taught in its schools. And you as a parent really wanted your child to learn Chinese. Would you be helpless? What might you do? Yes? STUDENT: You could take the issue to the federal government and ask them to address what the states had decided. JUSTICE GINSBURG: Well, the federal government, if you mean by that a member of Congress, or the President, might say, we are part of a federal union. This is a federal union in the United States, and there are states that pass laws about the education of children, and there's the federal government, and the federal government...shouldn't interfere. The President might tell you; well I can't do it, because only Congress can pass laws. And the Congress might say, we respect states' rights. So if you can't go to the President, and you can't go to the Congress in our system, where would you go? Yes? STUDENT: The courts? JUSTICE GINSBURG: Exactly. And that's what the parents did in that old case. They came to the courts and they said, we are being denied a choice, a choice that government ought to let us make. We should be free to make it, and we're willing to pay for the instruction. And so, they looked at the Constitution and couldn't find anything that said precisely that, that they had the right to make a reasonable choice about the education of their child. So, they decided that perhaps the due process clause had a meaning in addition to fair procedure, that there were certain fundamental rights the government had to respect, choices that people should be free to make for themselves. And that's what they used in the due process clause. And the Court held, in the early part of the 20th century, that the state couldn't deny parents that choice. There was a similar case involving one state that banned attendance of children at parochial schools. And that was similarly challenged as a violation of the parent's right to choose, make a reasonable choice, about the education of the child. STUDENT: My question was, to whom does the 14th Amendment now apply? JUSTICE GINSBURG: Whose basic rights did the 14th Amendment originally seek to protect? The basic rights that the 14th Amendment originally sought to protect were the rights of the newly freed slaves. The overriding purpose of the 14th Amendment was to say...people have inalienable rights, regardless of their race, color, creed, religion. But race was the driving force of three Amendments: the 13th, the 14th, and the 15th. And so the Supreme Court early on said the 14th Amendment was so obviously intended to grant equality to the former slaves that we don't think it really applies in any other situation. But, over the course of now a century and a half, almost, the Equal Protection Clause had...has expanded. It has grown from the core purpose, to protect the newly-freed...slaves, to encompassing more and more people. I like to think of it this way: Who can tell me the opening, the very opening words of the Constitution of the United States? STUDENT: "We the people...in order to form a more perfect union." JUSTICE GINSBURG: Exactly. Those two clauses, "we the people of the United States, in order to...in order to form a more perfect union." Who were "we the people"? I think there was an answer to that earlier. We the people were...white men, but even that was too large a category. It, we the people were white, property-owning males. So the original we the people was a rather elite group. The genius of the US Constitution is that over the years, we have formed a more perfect union by encompassing more and more people, people who were once left out. Slaves, Native Americans, and...what other group? Yes? STUDENT: Women? JUSTICE GINSBURG: Yes. When did women, by the way, get to be part of this political community that was established by the Constitution? Let's take someone who hasn't responded yet. Yes. STUDENT: 1920? JUSTICE GINSBURG: Yes. At last, in 1920, women achieved the vote. So, whose rights did the 14th Amendment originally seek to protect? It sought to protect the rights of African Americans to be treated as persons of equal status and dignity. Who does it protect now? It protects, as its words suggest, all persons. It doesn't say citizens, it says all persons. And, how about geography? The 14th Amendment is directed to state governments, but it has been read more expansively. For example, my residence, which is in the District of Columbia, is not a state, and yet I have the same equal protection and due process rights as someone from Pennsylvania or from California. It...these clauses apply to all of the United States, including its territories, including the District of Columbia. So now, the "we...the people of the United States" is a much more embracive concept than it was in the beginning. STUDENT: Since the 14th Amendment uses the word "male" in it, how did it come to be interpreted to grant equal protection to women? JUSTICE GINSBURG: And we might add to that, not only does the second section of the 14th Amendment use the word "male," and it uses that word three times, and so women were nervous that they weren't included. But the key provision that I read to you doesn't use the word "male, it uses the word "person." So let's straighten out what the Equal Protection Clause means, with respect to gender differences. There were cases in which men were claiming they were denied rights that women enjoyed, and I'll give you a specific example. You don't have to bring a case to uphold a right, it's when someone claims that he or she is being denied a right that there would be a complaint in court. When the 14th Amendment became part of the law, there were many, many laws that treated men and women differently. For example, not only couldn't women vote, but they couldn't serve on juries. And one...when a woman married, she became subordinate to her husband. She could no longer make contracts in her own name, she couldn't sue in court in her own name, and she couldn't hold property in her own right. The expression was, "husband and wife are one, and the husband was the one." That's the way it was in 1868 in many states, and I think if you had asked the people who proposed and ratified the 14th Amendment whether they meant to change any of that, they would probably have said, of course not. The difference between men and women is not anything we can do anything about, it is, as one judge notoriously said in the 1860s, "Woman's destiny is to be wife and mother. That is the law of the Creator." That was the law of the Creator. A man-made constitution couldn't stand up against it. So...in the beginning there was the understanding that, yes, all persons are entitled to equal protection of the laws, but the legislature could make reasonable distinctions, and the distinction between men and women was certainly reasonable. Why did...I concern...myself with cases that involve men as well as cases that concern women? To me, the Equal Protection Clause is about people. It's about each of us having the opportunity to develop our talents as far as they can take us, with no artificial barriers put in our way just because we are male or female. And I'll tell you the kind of male rights cases in which I was involved: A man who was the principal caretaker of his home, he was running a computer operation out of his home; his wife was a math teacher in high school. She was pregnant, very healthy. She was taken from school to the hospital when it became time for the birth of the baby. The doctor came out and told the expectant father, you have a healthy baby boy, but your wife died of an embolism. That man, his name was Stephen Wiesenfeld, vowed that he would be the genuine caretaker of his child, that he would work only part-time until his child was in school full-time. So he applied for the Social Security benefits that are available to a widow who has a child, a young child, in her care. And the Social Security offices said, that's not for you. These are mothers' benefits. Congress made these benefits available to widows, not widowers. Well, that case was brought all the way to the US Supreme Court, where it yielded a unanimous judgment, but different reasons. Now, I've just told you the basic facts of a case called Weinberger v. Wiesenfeld. Is Stephen Wiesenfeld in fact the victim of this unequal law? And most of the judges said, really, the discrimination began with his wife, because she paid Social Security taxes at the same rate as a man did, but...her Social Security taxes did not net for her family the same benefits that a man, paying the same tax, got for his family. So it really starts with the woman as wage earner. The woman is being preferred as parent, but she's being discriminated against as wage earner. And the same thing for the man. He has full Social Security coverage for his wife, but if he is in the position of caring personally for a child, then he is disadvantaged. So some of the justices said, it's really discrimination against the woman as wage earner. Others said, it's really discrimination against the male as parent. And one Justice said, there is someone else in the picture. And that someone else was the baby. And it seemed to that Justice, who was my Chief, Chief Justice Rehnquist, he was then not the Chief Justice, but he was a member of the Court. He said, it is utterly irrational to say that a child has the opportunity for the care of his only surviving parent if that surviving parent is female, but not if the parent is male. And that was the whole idea that we were attempting to project in the 1970s, that these gender lines in the law were unfair to everyone. They were unfair to women, to men, and to children. So the notion wasn't male rights or female rights, but equal rights for all humans. And that's why the expression women's rights is a bit problematic. It's human rights. It's the rights of all persons to the equal protection of the laws. STUDENT: My question is; how has the Court's approach to gender discrimination changed over time? JUSTICE GINSBURG: Let me give you a concrete example. This is a case that...was decided by the US Supreme Court in the year 1961, when that gentleman, Earl Warren, was the Chief Justice. And he was known as a quote, "liberal" Chief Justice. The case involved a woman named Gwendolyn Hoyt. She was what we would today call a battered woman. She had a philandering husband who humiliated her to the breaking point. And they were having a fight; she was beside herself with rage. She spied her son's baseball bat in the corner of the room. She took it, and with all her might, hit him. And he fell over, and perhaps it was a freak accident, but he died instantly. So she was put on trial for murder. And in the county where she lived, only men were called for jury duty. The law was very kind to women. It said, if any woman wants to be on the jury roll, she can go up to the clerk's office and sign up. But if a woman doesn't ask, she won't be on the jury roll. Now, if people had that choice, they probably would not want to serve on the jury. They would rather go fishing or something else. So there were no women on the jury roll in Hillsboro County, Florida. And Gwendolyn Hoyt was convicted of second-degree murder. When her case came to this Court, she said, I was denied the equal protection of the laws. I had a jury, but it wasn't a jury of my peers, because there were no women on it. The Court said, we don't understand the complaint that you're making. Women have the best of all possible worlds. They can serve on the jury if they want to, they can say "no thanks" if they want to. And here's Gwendolyn Hoyt, saying but what about me? Maybe if there were women on the jury, they might have better understood my state of mind, my rage when I did that bad deed, and maybe, not that I'm saying I'm innocent, maybe they would have convicted me of manslaughter, which is a lesser crime than murder. That was in 1961. In the 1970s, the Supreme Court did an about-face when Chief Justice Warren was no longer Chief Justice, and Chief Justice Burger, who was known as a kind of conservative Justice, became the Chief Justice of this Court, of the United States in fact. And during the 1970s, dozens of laws...were held unconstitutional for denying women or men the equal protection of the laws. So the jury cases that I mentioned; those were all gone. All those laws had to be changed as a result of decisions of this Court. All of the distinctions in relating to work that gave benefits to men's families but not to women's families, all of those were gone. Why do you suppose there was that enormous change? STUDENT: Perhaps the changing gender roles in society with more women coming to the work force? JUSTICE GINSBURG: That is exactly right. A court, as you know, is a reactive institution. And while the judges don't decide cases based on whatever the news of the day is, they are affected... Well, there was a...Constitution law scholar who put it beautifully. He said, the Court should never be affected by the weather of the day, but of course they are affected by the climate of the era, and it was that climate in the larger society that was changing. More and more women were coming into the work force, more and more families were two-earner families, and women were beginning to see, their partners in life were beginning to...see how basically unfair the laws that restricted either men or women, just because they were male or female, how unfair those laws were. So it was the change in society that the Court was reacting to. The Court was finally catching up to a changing world, and that's what happened in...in the 70s, and had not happened at an earlier time. STUDENT: Is the 14th Amendment interpreted differently in the present Court than in past Courts, and if so, what accounts for these differences? JUSTICE GINSBURG: Not a court...the changing composition of the Court, and not any grand philosophy the judges had, but because we the people have changed in their attitudes, and have come to the Court and said, the Equal Protection Clause has a grand idea. The equal stature and dignity of all humans, and our government, including the Congress and the Court, have been interpreting it incorrectly, that the change in this Court occurred because there was a change in the larger society. That's a message I'd like you to appreciate. The courts are reactive institutions. They don't make their own agenda like the President does or Congress. They react to controversies that people bring to them. There was one federal judge who expressed it very well. He said that federal judges are a bit like firefighters. They don't make the conflagrations, but they do the best they can to put them out. STUDENT: How has the Court's approach to racial discrimination changed across time? JUSTICE GINSBURG: I'll ask you about a case that probably you have heard of, to illustrate how it has changed. Let's start with a case from before the 14th Amendment, from before the Civil War. Well, what the Dred Scott decision said was, no person born of a slave can ever be a citizen of the United States, and remains the property of its master, even if it is taken into a free territory. That decision so incensed we the people that it helped to precipitate the Civil War. Well then, the Civil War is over, and we have the 13th, 14th, and 15th Amendments, that make the former slaves part of we the people, voters, but then there's a decision in 1896 called Plessy against Ferguson. Can someone tell me what that case is about? Yes? STUDENT: The Court ruled that as long as the schools and other facilities were separate but equal in standard that discrimination could be allowed. JUSTICE GINSBURG: Plessy against Ferguson upheld the so-called separate but equal doctrine. And it...the case itself was not about schools. It was about accommodations. We had, if truth be told, in America at the time, a system not so far distant from the system in South Africa: The separation, the law-enforced separation of the races. The word in South Africa is "apartheid." Laws saying the races should not mix. They are entitled to equality, so separate but equal, separate but equal schools, separate but equal places on buses, on trains, in movie theaters, even in courtrooms. That was the understanding in...1896. And then let's fast-forward to 1954. And the Supreme Court decides the case of Brown v. Board of Education, and says that separate but equal was a misguided doctrine, and equal means together. We the people, forming a union with no separation of people by race, national origin, et cetera. We the people are one. We are many, "e pluribus unum." We are many, but we are one. JUSTICE GINSBURG: There's one question that none of you asked me about equal protection, and I thought some might. And that is, do any of you know what the Equal Rights Amendment was intended to do? Do any of you know what the Equal Rights Amendment is? Yes? STUDENT: I thought that the Equal Rights Amendment was proposed to give total and complete equal rights to males and females, but it was never passed. JUSTICE GINSBURG: It...it fell three states short of ratification. It says, basically, that rights shall not be denied or abridged on account of sex. And the people who were supporting it, men and women, thought the 19th Amendment, that ended...that gave women the right to vote, was too limited, because all it did was give them the right to vote, and women over the years wanted more. They wanted equal opportunity in the job market and all fields of human endeavor. The people who were proponents of the Equal Rights Amendment, by the 1970s were inspired by newer constitutions in other places, constitutions that were written since World War II, and that understood that men and women were persons of equal stature and dignity. They are entitled to the same respect from government. That was the thrust of the Equal Rights Amendment. It was first introduced in 1923, and it has been reintroduced almost every year since. I would still like to see it as part of our constitution, because when I pick up this fundamental instrument of government, I carry this with me wherever I go in the world, I can't show to my grandchild something, a simple statement that says, men and women are persons of equal dignity, entitled to the same respect by the government. I can tell my grandchildren that our constitution guarantees freedom of speech, press, all these other wonderful guarantees, but doesn't contain that basic statement. So even if ordinary laws have taken away all the former inhibitions on what women could do, even if the laws have changed in that regard, the Equal Rights Amendment to me remains an important symbol. It's a statement that should be in our constitution. It should be in there to help us continue to form a more perfect union. APPLAUSE ♪ MUSIC ♪