Equal Protection the Supreme Court

Equal Protection

The Supreme Court has played a pivotal role in race relations in the United States. It began by supporting the institution of slavery, going so far as to invalidate an act of Congress that intended to limit the spread of slavery in the United States. The Court's support of racial oppression did not end with the end of slavery. On the contrary, even after the conclusion of the Civil War, when the laws clearly supported the equality of the races, the Supreme Court's decisions did not always support equal protection. However, by the time of the 1960s Civil Rights Movement, the Court had begun to take an activist role in civil rights, which may be the only reason that there have been any meaningful advances in civil rights and race relations.

In Scott v. Sandford, 60 U.S. 393 (1856), the Court was asked to adjudicate a dispute between a slave and a person claiming to be his owner. The subject matter of the dispute was whether a slave, taken into free territory, became a free man. The larger overall question was the validity of the Missouri Compromise, and whether Congress had the power to prohibit slavery in any area of the United States. The Court determined that Congress did not have that power, and bolstered its argument by looking to the historical intent and powers of the Articles of Confederation, though those had clearly and unequivocally been superceded by the Constitution, and held that Congress' right to enact new laws was restricted to property held in common by the states at the time of the Articles of Confederation, rather than any after-acquired territory or property. (60 U.S. 393, 436).

While the Court recognized Congress ability to acquire territory, it did not recognize its ability to govern that territory. Therefore, it determined that the provisions of the Missouri Compromise were void, so that Dred Scott and his family remained enslaved, despite the time that they spent in free territory or a free state. Therefore, the Court interpreted that equal protection applied to the slaveholder, so that he could not be deprived of his property (the slaves), merely by taking them into a free territory. Furthermore, there was no recognition of Dred Scott as a human being, with entitlement to any rights, much less equal protection of the law; he was regarded as nothing more than chattel. This decision was clearly a stretch, meant to defeat Congress' attempts to limit the spread of slavery in the United States, and was one of the precipitating events leading up to the Civil War.

Though the broader issue of the Civil War was the argument between state and federal rights, the practical issue at the heart of that war was slavery, and the economic tug-of-war between free states and slave states. Moral revulsion at the practice of slavery came much later for many of the people in free states; their free status was the result of economic power that did not depend on the availability of a cheap labor force. While Lincoln abolished slavery in the Confederate States during the war, when he issued the Emancipation Proclamation, the conclusion of the war saw the abolition of slavery throughout the United States and the passage of three significant amendments to the United States Constitution. The first of those amendments, the Thirteenth Amendment, outlawed race-based slavery in the United States. It stated that: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (U.S. Const. amend. XIII). The Fourteenth Amendment went further than that, by proclaiming that, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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." (U.S. Const. amend. XIV). Therefore, Congress clearly intended, at that time to grant equal protection to people regardless of race. Finally, the Fifteenth Amendment guaranteed African-Americans the right to vote, by stating that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (U.S. Const. amend. XV). In addition, the Civil Rights Act of 1875, 18 Stat. Part III, p. 335 (Act of Mar. 1, 1875), made it clear that equal protection extended to areas outside of the law and entitled "all persons within the jurisdiction of the United States...to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement." (18 Stat. Part III, p. 335, Chapter 114 1). Furthermore, the Act provided for penalties for those violating the law, including imprisonment and fines. (18 Stat. Part III, p. 335, Chapter 114 2). Taken together, the Act and the Civil War amendments make it clear that Congress intended for all Americans (at least the males) to enjoy the equal protection of the laws. However, once Reconstruction ended, the Court failed to give teeth to these powerful protections.

The first challenges to the Civil War amendments appeared relatively innocuous and did not involve the deprivation of liberty to African-Americans. Some of them were presented in a block appeal, and are collectively referred to as the Slaughter House Cases, 83 U.S. 36 (1873). These cases challenged an attempt by Louisiana to allow the City of New Orleans to establish a corporate monopoly on all butchering and slaughtering activity. A group of white butchers challenged the law, stating that it violated their Fourteenth Amendment right to equal protection. However, the Court disagreed with this interpretation. It held that the Fourteenth Amendment should be narrowly construed, to only protect those rights one had as an American citizen, and did not protect rights of state citizenship. Furthermore, the Court seemed to chide the white butchers for their attempt to use the Fourteenth Amendment to launch an equal protection claim. The Court stated that the Federal government came to recognize that:

notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they [83 U.S. 36, 71] ratified that article by a formal vote of their legislative bodies. (83 U.S. 36, 70-71).

This judicial recognition of institutionalized racism continued in the case of Strauder v. West Virginia, 100 U.S. 303 (1880). Strauder, an African-American defendant, was convicted of murder by an all-white jury. He challenged his conviction, alleging that a jury composed entirely of white people violated his Fourteenth Amendment rights. The Court agreed with Strauder, and held that such exclusionary jury selection methods violated the Fourteenth Amendment. The Court expanded on the Fourteenth Amendment's purpose, by explaining:

This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual.

100 U.S. 303, 306).

Furthermore, while the Court's decision was based on Strauder's right to an impartial jury, the Court believed that all-white juries were discriminatory against the potential jury pool. It held that:

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. (100 U.S. 303, 308).

Not surprisingly, the overwhelming condemnation of racism and Jim Crow practices did not last past the Reconstruction era. In fact, "In 1883, the United States Supreme Court ruled that the Civil Rights act of 1875... was unconstitutional and not authorized by the 13th or 14th Amendments of the Constitution." (Wormser). The Court did not question Congress' authority to amend the Constitution, but determined that the Thirteenth Amendment related solely to slavery, and held that the denial of equal accommodations was not a badge of slavery, but, at the most, an infringement of the Fourteenth Amendment. (Wormser). Even at the time, the decision was met with hostility by most blacks and many whites, because it basically legalized segregation. (Wormser). In his dissent, Justice Harlan stated his belief that such discrimination was a badge of servitude, and that Congress had the power to legislate against it because of that taint. (Wormser). Unfortunately, the Supreme Court succeeded in sending a strong message to Congress" it was "1964 before Congress would again pass a civil-rights law, this time constitutionally acceptable, that would forbid discrimination in public accommodations, employment, and unions." (Wormser).

However, the Supreme Court still adhered to the letter of the Fourteenth Amendment, if not the spirit. In Wo v. Hopkins, 118 U.S. 356 (1886), the Supreme Court determined that even facially neutral laws could violate the Fourteenth Amendment's Equal Protection Clause, if they were applied in a discriminatory manner. Petitioners Yick Wo and Wo Le alleged that San Francisco was discriminating against them by refusing to allow them to operate laundries, but permitting white people to operate laundries under the same ordinance. Therefore, they alleged racist application of the law. The Court agreed with the petitioners; the discrimination was admitted, and no reason for it was shown, leaving the court to conclude that it existed because of "hostility to the race and nationality to which the petitioners belong." (118 U.S. 356, 374). Therefore, it held that such an application of the law violated the Fourteenth Amendment. Unfortunately, this decision was never used to strike down any of the discriminatory statutes in the Jim Crow south.

On the contrary, the Supreme Court did not hesitate to hold state laws that discriminated against African-Americans constitutional. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld race-based discrimination in accommodations. To do so, it absolutely closed its eyes to the reality that the accommodations designated for people of color were inferior to those accommodations designated for white people. Plessy, a man of mixed ancestry, "paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated." (163 U.S. 537, 538). When he refused to vacate his seat, he was forcibly ejected and placed in jail. The charge was that he violated Louisiana Acts 8910, No. 111, p.152, which required railway companies to provide equal but separate accommodations for its white and colored passengers, and provided for criminal sanctions for those who failed to comply with the law. The Court's reasoning was the separation did not imply superiority or inferiority to any race, and that such an interpretation by African-Americans was self-imposed. Furthermore, the Court held that a "statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color-has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude." (163 U.S. 537, 543). Furthermore, the Court parsed the difference between political and social freedoms, and correctly claimed that the "distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court." (163 U.S. 537, 546). However, it was in Plessy v. Ferguson that the Court first openly stated a doctrine supporting the idea of separate but equal facilities, which paved the way for years of legal segregation, notably in the Jim Crow South, but also throughout the entire United States. It is important to recognize that the Court's decision was not unanimous; Justice Harlan, the lone dissenter, took great issue with the Court's interpretation. Harlan's dissent would be mirrored in later Supreme Court decisions guaranteeing equal protection for the races. Harlan stated that:

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. but, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that '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.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.' (163 U.S. 537, 555).

The major significant change in constitutional equal protection jurisprudence did not occur as the result of an equal protection dispute, but as the side-effect of a totally unrelated case. In United States v. Carolene Products Company, 304 U.S. 144 (1938), a case about dairies, the Court announced the level of scrutiny for certain allegations of constitutional violations. In Footnote Four of the case, the court stated that:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious... Or national... Or racial minorities...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. (304 U.S. 144, 155).

Therefore, this case introduced the levels of judicial scrutiny and suggested that strict scrutiny might apply to legislation discriminating against minorities.

Strict scrutiny was first applied in the case of Korematsu v. United States, 323 U.S. 214 (1944), which challenged the constitutionality of Executive Order 9066, ordering the interment of Japanese-Americans living in the Western United States. The case was significant for two reasons; first, it demonstrated that the Court was no longer willing to rubber stamp legislative attempts to discriminate against people based on race. It was also significant because it ended up being one of the only cases where a racially-prejudiced law survived strict scrutiny. This is because the Court determined that racial prejudice had not motivated the law. On the contrary, the Court took issue with the characterization of Executive Order 9066 as an attempt at prejudice, by stating:

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. (323 U.S. 214, 223).