What has been the single most significant change to constitutional order from “original intent” to
the present public policy status in the United States?
Bashir Safi
Prof. Timothy O'Brien, Liberty University
PLCY 703
December 17, 2021
2
Contents
Summary..........................................................................................................................................3
The most significant change to constitutional order........................................................................4
Expansion to the Constitution........................................................................................................10
Amendments and Precedents.........................................................................................................12
Conclusion.....................................................................................................................................14
Bibliography:.................................................................................................................................15
3
What has been the single most significant change to constitutional order from “original
intent” to the present public policy status in the United States?
Summary
This paper highlights the Fourteenth Amendment as the most significant change to
constitutional order from original intent to the current public policy status in the United States.
To discuss the historical context of the Fourteenth Amendment, the cases of Plessy v. Ferguson
(1896), and Brown v Board of Education (1952) were also examined. This is very important to
reference the aftermath of the World War II and how it contributed to the public policy discourse
and political arena in the country and the possible influence on Court decisions when
reinterpreting the Fourteenth Amendment for Brown v Board of Education (1952).
The paper also highlights the surroundings of the Constitution expansion and how the
Court interpret and reinterpret Amendments and precedents. Because this is very important to
understand the relationship of government expansion and the Court as a challenge, and on the
other side Congress inability to pass legislation where the Court retain the Constitution to keep
up with the peoples demand because of social changes.
Finally, the paper also discusses the social status of the country when the Court decided
the Plessy v. Ferguson case in 1896 and later when it ruled the Brown v Board of Education in
1952. Historically, the Court has rejected any proposed changes if they were not spoken from the
heart of society. Likewise, the Court always changed the original meaning, precedent or establish
a new ruling when a matter reflects social change or thrive for economical prosperity, such as
such as ending discrimination, voting rights and transgenders rights and government expansions
after New Deal and after World War II.
4
The most significant change to constitutional order
Fourteenth Amendment was the most significant change to constitutional order from
“original intent” to the public policy status in the country. It’s fair to say that it took very long for
the American society to adopt this change. Any change in public policy arena always follows
public interest and need. With thig being said, the American society has changed since the
Framers ratified the Constitution. Because the change remains constant in every aspect of public
life, the Constitution was also changed and interpreted differently over the period. Through
amendments, new interpretations, judicial restraints, and other methods were followed for
changes to meet the societal changes and public expectations. The changes to constitutional order
from original intent to present public policy have always been a need for the soul of public
policy itself, for strengthening democracy, directly involving country’s economy and other
fundamental change in the political arena.
Since World War II in 1945, the magnitude of change in public policy and laws have been
very broad and constant. There were rapid and big changes to the Constitution after the World
War II. The Framers even would not expect these changes, but it was a need for economic
prosperity, equality, and other societal changes. I believe, women and black people allowing to
vote were the most significant change ever since The Constitution was ratified and Framers
would not expect. Among others, the Fourteenth Amendment which gives the impression of
being the biggest change to the constitutional order from original intent since it the document
was written. In the history of this document, I believe, the Thirteenth Amendment which
abolished slavery, Fourteenth Amendment that provided citizenship to the African Americans,
and Fifteenth Amendment that guaranteed the right to vote were the most significant change. The
Fifteenth Amendment, though, was not a surprising to come, because it was a need for free
5
citizen to vote just like white citizen and sooner or later this need had to be felt in the public
policy arena.1
Unfortunately, despite these amendments and other alike acts by Congress, there have
been times where the Supreme Court handed down hasty decisions where it nullified progress
work of civil rights of Congress. The Supreme Court decisions between the years of 1873 and
1883 worth mentioning that overturned Congress work for equality and racial discrimination. 2
The Court upheld many cases where the black people were separated from whites in
public transportation, accommodations, recreational places, military, commerce, and educational
facilities.3 The Supreme Court decision in Plessy v. Ferguson (1896),4 which ruled that separation
of classes does not violate the Fourteenth Amendment, was the most impactful ruling of the
century during the Progressive Era the 1890s-1920s.
As I mentioned above, the legislation, the Court decisions, and a need for change in laws
always follow the interest of public and change in the society. It was easy for the Court to decide
eight to one in the case of Plessy v. Ferguson, because the public need was not felt that time.
Though after the Supreme Court decision of Plessy v. Ferguson, it changed the overall concept of
law and policy and how the Court misinterpreted the Fourteenth Amendment.
This was a clear judicial overreach in the history of the Republic and since the
Constitution was ratified. Of course, the Court decisions and congress legislations are widely
reflective of public interest, but this does not mean that if the Constitution legally prohibits racial
1 U.S. Senate: Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendments
2 Egerton, Douglas R. The Wars of Reconstruction: The Brief, Violent History of America's Most Progressive Era -
at 23-97 (2014)
3 Bittker, Boris. Interpreting the Constitution: Is the Intent of The Framers Controlling? If Not, What Is? – at 10-21
(Harv. J. L. & Pub. Poly 9 1995-1996)
4 Plessy v. Ferguson, 163 U.S. 537. 1896.
6
discrimination, but there is lack of public turmoil allows the Court to deprive African-American
from their Constitutional right.
The Court decision in the case of Plessy v. Ferguson, epitomized the foundation that even
the highest court of the country has legalized an effort to exclude, discriminate and desegregate
an entire race within the United States. It was more than just a judicial overreach.
After the court ruling in Plessy v. Ferguson, the African American race debilitated for the
following six decades. This infamous decision limited education, housing, food and even life
insurance for the African Americans due to the premium based upon skin color.5
During the trial of Plessy’s case, it was argued that the Separate Car Act violated the
Fourteenth Amendment, but the Judge held that Louisiana could enforce this law inside state
boundaries. This decision allowed all public areas to justify segregation such as public
transportation, parks, movies theaters, trains, and restaurants.6
However, the Plessy v. Ferguson ruling was finally overturned in a landmark Supreme
Court decision of Brown v Board of Education7 in (1954). The U.S. Supreme Court held that
such laws of segregation deprived African Americans from equal access to education in public
schools and many other opportunities in public places.
5 Bouk, Dan. The Science of Difference: Developing Tools for Discrimination in the American Life Insurance
Industry, 1830–1930. Volume 12, Issue 4 – at 717 (2011)
6 Rothstein, Richard. The Color of Law: A Forgotten History of How Our Government Segregated America. At 31
(2017).
7 Brown v. Board of Education of Topeka, 347 U.S. 483
7
The court also held that its clear violation of the Equal Protection Clause of the
Fourteenth Amendment, which is “No State shall deny to any person within its jurisdiction the
equal protection of the laws”.8
When ratified, the Fourteenth Amendment was meant to establish equality for all races
and racial discrimination was unconstitutional in public education system and elsewhere in the
United States. After the landmark ruling of Brown v Board of Education (1952), African
Americans were able to live, express and practice just like other people of this country. The
Fourteenth Amendment interpretation in this case was very important for the founding principle
of life, liberty and property.
In the case of Brown v Board of Education (1952), Chief Justice Earl Warren conferred
that local schools must take much responsibility to end the segregation and urgently act on the
court decision. He urged that local authorities must move toward full compliance making black
people equally human by policy and law.9
After the Brown v Board of Education court decision, legally protected racism swapped
by structural racism because of non-enforcement or of the civil rights protections of the
Fourteenth Amendment. In other words, institutions could no longer discriminate people because
it was in the public eyes unconstitutional, but we still experience systematic discrimination of
African American and other races of color. To know systematic discrimination one can, research
the employment rate and economic opportunities in black and white races. After the Brown v
Board of Education, the unemployment rate in black community was ten percent while white
race only experienced about five percent unemployed between 1945 and 1954. Before COVID-
19 outbreak in 2019, unemployment rate in African American community lowered to seven
8 U.S. Constitution. Amend. XIV, § 1.
9 (Brown v Board of Education, 1952).
8
percent and white people stood at three percent. This comparison remained same since the U.S.
Supreme Court ruled Brown v Board of Education. 10 Statistically, the widest gap between white
and black employment rate, and the highest economic trouble for African Americans was in
1980s after the manufacturing companies laid off most of their labor. Later in 2009, the gap
ironically decreased where only double of African Americans was jobless than the number of
white jobless. 11
Despite America is the largest economy in the world, with $21 trillion GPD in 2019, but
internally the opportunity is not distributed equally between different races and African
American have been misrepresented in economic opportunities and overwhelmed by the poverty
and government aid in difficult situations. With no doubt, African American and other
underrepresented communities have benefited the most from the Fourteenth Amendment which
can be counted as one of the most significant change to the constitutional order from the original
intent, to the current public policy status in the country. Despite that, not enforcing the original
meaning also caused the mentioned races to stay behind, segregated and discriminated. Even
though the founding fathers wrote that all men are created equal, but it was the social change that
might have impacted the judges’ decision first in Plessy v. Ferguson (1896) and later in Brown v
Board of Education. It is very clear that the public mindset in 1896 was not in favor of ending
the segregation and later after the World War II everyone was educated and prepared for the
change, which should have done in the first days of the republic.
After 1944 the United States witness some big changes in all major areas of social
structure. Thus, many factors have been pushing the social system of the country toward a
10 U.S. Bureau of Labor & Statistics.
11 DeSilver, Drew. Black Unemployment Rate Is Consistently Twice That of Whites. Pew Research Center, 2013.
9
connected mass society. Segmental setups were dissolved, particularistic and categorical ethnic
systems were breaking down. Population was moving toward an urbanized society and mobile,
both geographically and socially.
After the Great Depression, one thing was very clear to all races that they have been
frustrated and together they need to mobilize. Finally, the World War II was one of the main
reasons that educated American people to collectively work against discrimination and racial
particularistic structure.
It is the society that pave way to adopt new changes. The interpretation of the
Constitution is connected to the public thinking and how they see a disputed matter. For
example, even if the slavery was clearly allowed in the Constitution, it would have been
changed, because the public mindset and current society is very different than the society of the
seventeenth century. The public policy always follows the social changes and norms of the
people.
Most people believe that, in Plessy v. Ferguson, it was the Constitution, Fourteenth
Amendment and the court’s ruling that allowed local authorities to discriminate African
American. However, it was the very document that judges referred to it and declared that the
segregation unlawful in the case of Brown v Board of Education. The question how the same text
lawfully allows segregation and a half-century later it make the same act unconstitutional? The
short answer is the social change.
Expansion to the Constitution
10
On the opposite side of the originalists, many American believe that the Constitutional
protection caused to fail the Constitution. They also believe that the original Constitution is not
enough for current society to support the people of this country today. The “Constitution as it is”
is a blind argument by many people on all side of the political spectrum. Woodrow Wilson was a
major advocate to question the Constitution’s balance of control of the government by people
and control of the people by the government. Wilson believed the Constitution did not strike a
good balance on control. 12
During the “Great Depression” people concluded that the incompetence in the federal
government is a Constitutional problem and wanted more rights and reforms for the citizens, not
for the private interests. Wilson was the most influential constitutional thinker of his time.
Wilson worked to expand the Constitution to prevent abuses by corporations and his firm believe
that the government must be proactive, not reactive. In response to the idea of limited
government proposed by the founding fathers, Wilson believed that founding members were
brilliant men but its just not possible to foresee the problems of American people coming
centuries later.
The second argument for the Constitutional revision says it should change to best meet
the demands of today’s society. These two arguments are very popular among those who believe
the changes to the Constitution is important. Wilson criticized that even this Constitution does
not meet the expectation of the people of 19th century.
The originalists concern of protecting and preserving the Constitution is important but the
document was written for the people in eighteenth century, and this is natural to change the
12 Greve, Michael. Upside-down Constitution (Cambridge, Massachusetts: Harvard University Press, 2012).
11
Constitution to meet the new lifestyle and type of governance for today life because of social
changes in the country.
Wilson predicted that America would change in the future, both its population and the
influence it will have on the world affairs. The traditional idea of federalism and the Constitution
will not meet the basic needs of the American people. He claimed that American government is
very small and cannot act effectively. 13
Wilson’s thrive for the government expansion may not be related to the most significant
change discussed in this paper “the Fourteenth Amendment”, but it connects the discussion of
change to the Constitution, whether it is for the government expansion or ending racial
discrimination, voting rights or any other clause. Any changes to the Constitution were brought
after a social change motivated the political arena.
The Constitution was written in a time where the founding fathers struggled to end the
tyranny which was bigger government and lack of rights. But now currently, the people do not
have that fear, even though the bigger government is a demand of the people if it is well balanced
with the protecting of liberty, rights, and property. Maintaining the health of society and the
people is as important as protecting liberty and rights.
There are some areas that need new interpretation or have already been changed from the
original intent, but the problem which the Constitutional thinkers’ faces is, areas where the
Constitution did not mention a word. For example, gay rights, child labor and other areas, where
the Constitution remained silent. Most of these areas are now regulated under state statutes and
the Court rulings, which shows the Constitution in fact needs change as the society wants. The
13 Woodrow Wilson, Congressional government (New York, New York: Meridian Books, 1956), 206.
12
Constitution was written with very broad meaning in mind, and it itself expresses tremendous
faith in heterogeneity.14
Amendments and Precedents
When there was growth in the country due to economic or social change, it was followed
by actions and calls for the government expansion. Government expansion has always been a
disputed matter where the Supreme Court taking the lead to allow expansion or rule it
unconstitutional.
In the landmark 1956 case of Cooper v. Aaron, the idea of Constitutional supremacy
came into broader discussion. This case showed that the Court must make final decision on the
government expansion disputes. In this case Chief Justice Earl Warren and every justice signing
the opinion on unanimous decision ruled that the Court’s interpretation of the Constitution is the
final and supreme law of the country and it applies above all other political factors.
This is very important for the Supreme Court justices to be informed of all societal
changes, economical state of the country and prosperity of the people. The people through their
elected representatives bring changes to the government or any other social policies and with this
mandate, the people expect the Court to be informed of the peoples needs and expectation, when
challenging legislation and at points government expansion.
The courts are expected to be prescriptive as well as proscriptive” and this is very
important for the Court to be informed of public policy and the foreseeable changes. 15
14 Harvard Law Review “The Virtues of Heterogeneity, in Court Decisions and in the Constitution” Harvard Law
Review, no.131 at 874 (2018)
15 Ralph Rossum and Alan Tarr, American Constitutional Law. At 61 (Boulder CO: Westview Press, 2017).
13
On the judicial supremacy, this is very concerning that the Court do not support public
thrive for social change and how people want their government. The Supreme Court decisions go
unchecked when ruling against government’s public policy changes.
The calls for Court involvement are always from both side of political spectrum. One side
worry about the government expansion and therefor wants the Court the check on them. While
the other side wants the Court to be inform of the public policy and social changes and shape the
public policy according to the spirit of society.
Congress is often unable to make one voice for legislation, and the differences in political
beliefs make them to compromise important legislations which may not satisfy the initial motive
or public demand and it even retain its original meaning. Woodrow Wilson discussed this matter
in his book “Constitutional Government in the United States” saying “the Constitution of the
United States is not a mere lawyers’ document: it is a vehicle of life, and its spirit is always the
spirit of the age.”16
Wilson believed that this is impossible to keep the original Constitution forever. He said
it’s very important to move forward as a nation and the Constitution must also move forward and
embrace changes to keep up with society’s demand. Wilson believed the Court plays effective
rule to negotiate and balance the social changes and original meaning of the Constitution.
Conclusion
After examining the cases of Plessy v. Ferguson (1896) and Plessy v. Ferguson (1952) in
contrast to the Fourteenth Amendment the question remains why the Court would draw different
16 Ronald Pestritto, Woodrow Wilson, the Essential Political Writings (Lanham, MD: Lexington Books,
2005).
14
interpretation from the same text which deprived African American race from education, public
life and economical opportunities for generations in the country. The Court, in the case of Plessy
v. Ferguson, laid the foundation for discrimination and legally protected this act. However, the
very Court finally overturned the ruling of Plessy’s case in a landmark Supreme Court decision
of Brown v Board of Education in (1954). The Court held that such laws of segregation deprived
African Americans from equal access to education in public schools and many other
opportunities in public places but earlier in 1896 they rejected the very same argument from the
lawyers in Plessy v. Ferguson. As Woodrow Wilson in his book pointed out that the Constitution
must keep up with the spirit of this country and demands of the people. This means the Court
when interpreting the Constitution, should be informed of the social atmosphere, and must rule
accordingly. Government expansion and the Constitution expansion must be treated separately.
The government expansion, if not mandated by the social change maybe hard to get a pass from
the Supreme Court such as New Deal expansions. On the other side if a social change warrants a
Constitutional change, it is upon the Court to act to meet the public expectation, such as Brown v
Board of Education in (1954) and other cases after the World War II which came as result of
social changes. As a result of social change, the Constitutional change serves long term public
interest than politically motivated legislation which is often for short term gains.17
Bibliography:
Bittker, Boris. Interpreting the Constitution: Is the Intent of The Framers Controlling? If Not,
What Is? (Harv. J. L. & Pub. Poly 9 1995-1996).
Black, Hugo Lafayette, 1886-1971. A Constitutional Faith. New York: Knopf. 1968
17 McGinnis, John. “Protecting the Originalist Constitution” Harvard Journal of Law and Public Policy, no.42 – At
80 (2018).
15
Bouk, Dan. The Science of Difference: Developing Tools for Discrimination in the American Life
Insurance Industry, 1830–1930. Volume 12, Issue 4 (Cambridge University Press, 2011)
Egerton, Douglas R. The Wars of Reconstruction: The Brief, Violent History of America's Most
Progressive Era. (Bloomsbury Press, 2014)
Greve, Michael. Upside-down Constitution (Cambridge, Massachusetts: Harvard University
Press, 2012),
Harvard Law Review “The Virtues of Heterogeneity, in Court Decisions and in the Constitution”
Harvard Law Review, no.131 (2018): 874.
McGinnis, John. “Protecting the Originalist Constitution” Harvard Journal of Law and Public
Policy, no.42 (2018).
Pestritto, Ronald, Woodrow Wilson, the Essential Political Writings (Lanham, MD: Lexington
Books, 2005).
Ralph Rossum and Alan Tarr, American Constitutional Law (Boulder CO: Westview Press,
2017), 61.
Rothstein, Richard. The Color of Law: A Forgotten History of How Our Government Segregated
America (Liveright Publishing Corporation, 2017)
