“The war grew out of the systematic violation of individual rights by State authority. The war ended with the vindication of individual rights by national power….It made the liberty and rights of every citizen in every State a matter of national concern.”45 —Senator Carl Schurz, 1870
The black men who fought for the Union fought not only for freedom, but for civil and political equality too. Douglass urged black men to fight for the Union: “let [the black man] get an eagle on his button, and a musket on his shoulder, and bullets in his pocket, and there is no power on earth or under the earth which can deny that he has earned the right of citizenship in the United States.”46 While some white Americans were still debating whether the war should or would end slavery, black Americans, sure that it should and would, were already thinking about the next goal.
Progress toward civil and political equality proceeded quickly after the Civil War. Just after the war, the Thirteenth Amendment became law, freeing all the slaves in the country. Shortly after that, the Fourteenth Amendment became law, requiring the states to treat all of their citizens as equals. Its first sentence declared that all Americans—regardless of color—are citizens. This overruled the Dred Scott decision, which had held that black Americans were not citizens. Its second sentence forbade states from denying citizens the rights that come with citizenship and from denying any persons their inalienable rights without due process of law. Finally, the amendment guaranteed all people the equal protection of the laws. In the words of Representative John Bingham, principal author of the Fourteenth Amendment, this clause stood for the “foundation[al] principle” that “all citizens of the United States” enjoyed “absolute equality” both “politically and civilly before their own laws.”47
If there had been any confusion in the past about whether the Constitution allowed governments to treat people differently based on race, it was gone. After the Fourteenth Amendment, the answer is a loud and clear “No.” In the words of Justice John Marshall Harlan, the Constitution “is color-blind, and neither knows nor tolerates classes among citizens.”48
Two years after the Fourteenth Amendment guaranteed equality, the Fifteenth Amendment forbade the state and federal governments from restricting the right to vote based on race or color. This was the first (and still only) time the Constitution acknowledged that “people,” “persons,” and “citizens” have “race” and “color.” It did not do so to endorse such divisions, however, but to reaffirm that they are not a legitimate basis for treating people differently.
It was profoundly important that all of these amendments were written in universal terms. The Thirteenth Amendment did not forbid only black slavery. The Fourteenth Amendment did not guarantee only black Americans equal rights. And the Fifteenth Amendment did not protect only black Americans’ right to vote. They all applied to everyone. For this reason, the Supreme Court said that the amendments protected anyone and everyone, even if “the party interested may not be of African descent.”49
“This guarantee has rounded out and perfected our government, and will be a priceless heritage to posterity long after the race in whose behalf it was adopted has ceased to need its especial protection.”50 —Judge John Watson Barr
It took only five years for the nation to ratify all three of these amendments. In that tiny span of time, the country went from being half-slave and half-free to “the world’s first biracial democracy.”51 But perhaps the most profound effect of these amendments was to shift the people’s focus away from “states’ rights,” “state sovereignty,” or the interests of racial groups and toward equal individual rights. After these amendments, every individual, simply because of his or her humanity, did indeed have “unalienable Rights.”52 Now state governments had no legitimate power to stop people from claiming those rights, and every individual could demand equal protection of those rights. This was, in the words of Republican Senator Carl Schurz, “a revolutionary process of tremendous significance.”53
For a time, this process saw success. Even in the former Confederate states, many organizations devoted themselves to creating a truly multiracial republic. Southern conservatives fought for integration alongside southern populists and northern Republicans.54 Black citizens exercised the right to vote, won election to state and federal offices, and won court cases to vindicate their rights. And Congress passed two civil rights acts to guarantee that the law knew “no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds.”55
However, as too often happens in the course of human history, many people gave in to the ever-present temptation to divide and hate. It started when good people stopped fighting against racial discrimination.56 Their retreat cleared the way for demagogues to create and exploit racial divisions for political power. They enacted discriminatory laws. They segregated common spaces and public transportation. They organized mobs, used violence, and passed unconstitutional laws to stop black citizens from voting. Nor was it just the southern states that started backsliding. Southern racists were helped a great deal by northern intellectuals who argued, as slavery’s defenders had decades earlier, that black people were inferior to white people.57 Black Americans were not the only targets of discriminatory laws. Similar laws targeted Chinese immigrants and their descendants.58 The promise of absolute equality began to fade.
All of this was bad enough, but it was made even worse when the Supreme Court refused to defend the Fourteenth and Fifteenth Amendments. The plain text of those amendments gave the Supreme Court all the tools it needed to stop this cultural retreat from turning into a legal one, but it refused to do so. Over several years, the Court held that the “privileges or immunities of citizens” were essentially meaningless,59 that states could pass laws to prevent black citizens from voting,60 and that “equal protection of the laws” did not stop states from discriminating and segregating.61 In short, the Supreme Court permitted and then joined the retreat away from the “revolutionary process” that tried to protect individual rights for all people equally, regardless of color.
Plessy v. Ferguson
“[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable.” —Justice Henry Billings Brown, author of the majority opinion
The Supreme Court abandoned equal rights completely in Plessy v. Ferguson.62 Justice Henry Billings Brown, writing for the Court, held that a state could segregate train cars. Despite the Fourteenth Amendment’s guarantee of equality, Brown said that states had the power to segregate if segregation promoted the people’s “comfort” and preserved “public peace and good order.”63 Racists in both the North and South insisted that black people would be better off keeping to themselves and that white people would be happier if they did not have to face the “constant disorder,” as one newspaper put it, of interacting with “disagreeable” black people.64 Brown said that there was nothing unequal about separation as long as the black train cars were just as nice as the white ones. This “separate but equal” rule, he insisted, did not imply that black people were inferior to white people.65 That view was a “fallacy,” he said, just the overly sensitive “construction” that black people placed upon segregation.
Ultimately, Plessy made the Fourteenth Amendment meaningless. After that decision, state governments were free to make race the defining feature of every person’s life. If a state legislature thought that racial distinctions were positive goods, as slavery’s defenders had argued,66 then the Court would consider them constitutional. In this way, Plessy rejected not only the Reconstruction Amendments, but the philosophy behind them. The amendments were built on the idea that the right approach to race issues was to protect all Americans’ rights equally. Plessy rejected that idea and held that the right way to approach race issues was to try to maximize the “comfort” and “peace” of abstract groups even at individuals’ expense.
The lone dissenter, Justice John Marshal Harlan, fought for equal rights. In what has since become the most famous dissent in Supreme Court history, he exposed the majority’s opinion as a lie and a violation of the Constitution. “Every one knows,” he said, that separate-but-equal is a “guise” that appears to give “equal accommodation for whites and blacks” but actually forces the latter “to keep to themselves.”67 The law put people of one race over those of another. This was unconstitutional, Harlan said, because:
There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.68
What does it mean that the law is colorblind? Echoing Frederick Douglass’s observation that “[m]an is man, the world over,”69 Harlan put it this way:
“[t]he law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”70 In other words, colorblindness means that law does not treat people differently because of their skin color. It does not mean that the law is blind to race discrimination. Quite the opposite: It is a recognition that everyone has prejudice and that it should never be allowed to infect the law.
Harlan thought that discriminatory laws were not only wrong, but dangerous. He warned that they would “arouse race hate” and “create and perpetuate a feeling of distrust between these races.”71 History would prove him right as Jim Crow laws spawned racial hatred and violence. Yet history would prove Harlan right in another way too. Eventually, through the efforts of civil-rights reformers, Harlan’s colorblind Constitution would triumph over Brown’s race-based one.
Adolph Plessy
Homer Adolph Plessy (1863 - 1925) was the man who gave his name to one of the most infamous decisions and the most famous dissent in Supreme Court history.
Plessy was from New Orleans, and during the early part of his life, schools were integrated, interracial marriage was lawful, and black men could vote and held elected offices.72 When Louisiana started enacting segregationist laws, he and several other people formed a citizens committee to challenge them. Plessy was one-eighth black and looked entirely white. One of his lawyers, Albion Winegar Tourgée, thought this made him a good plaintiff because any segregation law would be arbitrary if applied to him.73
Was Plessy black or was he white? Who got to choose? Should it have mattered? According to the Supreme Court, the state got to choose, and the state’s opinion was all that mattered. The state said that Plessy was black. That meant that Plessy had no say in the question. He could not choose to live as a black man or choose to live as a white one. Neither could he choose to live as just a man. He had no say in the matter. The government forced him to make the skin color of one of his great-grandparents the defining feature of his life, and the Supreme Court said this was constitutional.
After losing at the Supreme Court, Plessy pleaded guilty to violating the segregated train law and paid a hefty fine. The citizens committee disbanded. He died in 1925 in a Louisiana that was much less equal than the one he grew up in. His cause survived him, however, and achieved a major victory 29 years later in Brown v. Board of Education.74
ENDNOTES:
45. Cong. Globe, 41st Cong., 2d Sess. 3608 (1870) (statement of Sen. Carl Schurz).
46. Frederick Douglass, Address for the Promotion of Colored Enlistments, July 6, 1863.
47. Cong. Globe, 39th Cong., 1st Sess., 431 (1866) (Statement of Rep. John Bingham).
48. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
49. Slaughter-House Cases, 16 Wall. 36, 72 (1873).
50. Claybrook v. City of Owensboro, 16 F. 297, 301 (D. Ky. 1883).
51. Eric Foner, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION (2019).
52. The Declaration of Independence.
53. Cong. Globe, 41st Cong., 2d Sess. 3607 (1870) (statement of Sen. Carl Schurz).
54. C. Vann Woodward, THE STRANGE CAREER OF JIM CROW 45–68 (commemorative ed., 2002).
55. 3 Cong. Rec. 945 (1875) (statement of Rep. John Lynch).
56. Woodward, supra note 54 at 69–74, 81.
57. Id. at 81, 94–95.
58. See, e.g., Gong Lum v. Rice, 275 U.S. 78 (1927) (upholding the decision to deny a girl with Chinese ancestry entry to a “white” school); Exec. Order No. 9066, 3 CFR 1092 (1943) (ordering the internment of Americans of Japanese ancestry after the attack on Pearl Harbor).
59. United States v. Cruikshank 92 U.S. 542, 550 (1876); Slaughter-House Cases, 83 U.S. (16 Wall.) (1873).
60. Williams v. Mississippi, 170 U.S. 213 (1898).
61. Plessy, 163 U.S. at 537.
62. Id.
63. Id. at 550.
64. Editorial, EVENING JOURNAL, May 20, 1896, reprinted in PLESSY V. FERGUSON: A BRIEF HISTORY WITH DOCUMENTS 131 (Brook Thomas ed., 1997).
65. Plessy, 163 U.S. at 551.
66. See John C. Calhoun, Slavery a Positive Good, Feb. 6, 1837.
67. Plessy, 163 U.S. at 557 (Harlan, J., dissenting).
68. Id. at 559.
69. Frederick Douglass, Our Composite Nationality, Dec. 7, 1869.
70. Plessy, 163 U.S. at 559 (Harlan, J., dissenting).
71. Id. at 560.
72. Keith Weldon Medley, WE AS FREEMEN: PLESSY V. FERGUSON 25 (2003).
73. PLESSY V. FERGUSON: A BRIEF HISTORY WITH DOCUMENTS, supra note 65, at 4.
74. 347 U.S. 483 (1954).
