In the first decades of the nineteenth century the Court, then in its infancy, was mainly concerned with fostering the growth of commerce over agrarian interests, as well as upholding the subordination of Native Americans and the enslavement of African Americans. In Cherokee Nation v. Georgia (1831), Chief Justice John Marshall held for the Court that the Cherokee, who were being forced off the lands guaranteed to them by a treaty with the US because speculators in Georgia had discovered gold on those lands, had no standing to complain because they were mere wards of the state: “They look to our Government for protection; rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their Great Father.” In the infamous case of Dred Scott v. Sandford (1857), the Court held that a person of “Negro” ancestry could never be a citizen of the United States. Specifically, it found that at the time the Constitution was adopted, the word “citizen” did not include Black people, because they were universally regarded as inferior and at best a kind of property, and however much this view might have changed in subsequent decades, the Court was still bound by the meaning of “citizen” at that time. Dred Scott is actually an early example of originalism at work. What followed was the Civil War.
Dred Scott was effectively overruled by the first sentence of the Fourteenth Amendment, enacted in 1868, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Yet as far as the Supreme Court was concerned, remarkably little changed after the Civil War, even though the second sentence of the Fourteenth Amendment declares:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In the ironically named “Civil Rights Cases” (1883), the Court held that the postwar Civil Rights Act of 1875 providing for equal access of all persons to accommodations, public conveyances, and the like were unconstitutional because Congress had no power, even under the Fourteenth Amendment, to legislate the conduct of private commercial parties like innkeepers or stagecoach companies.