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.
— The Fourteenth Amendment, Section I —
The year was 1865. The Union and Confederate armies were locked in mortal combat around the city of Petersburg in Virginia and in the humid forests of Georgia. The end of the Civil War was near, and the Lincoln Administration was facing the question of how to restore the Union and preserve it against another rebellion. With the passage of the three anti-slavery amendments to the Constitution came the legal framework for equality between the races, and each of the Confederate states would be required to ratify the amendments before they could rejoin the Union. President Lincoln’s message to the American people in his second inaugural address was clear: “With malice toward none, with charity toward all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”
Tragically, Abraham Lincoln’s vision of a peaceful and merciful reconstruction of the Southern states died with him on April 15, 1865. Flushed with anger and eager for revenge, the Republican-controlled Congress imposed a military occupation on the South to crush all lingering anti-Unionist sentiments. The eleven years of Reconstruction saw the rise of the Ku Klux Klan, the flight of many freed slaves to the North and their subsequent return as sharecroppers, and the stigma of carpet-bagging politicians and businessmen hoping to make a quick buck on the backs of the rebel states. When Reconstruction ended in 1876 amidst the turmoil of that year’s presidential election, large sections of the South remained unreconstructed.
As federal troops pulled out of the cities and towns of the Old Confederacy as part of the compromise that brought President Hayes to the White House, racist Democrats regained majorities in many Southern legislatures and began to institute policies in their states that would have lasting consequences for racial equality and justice for African-Americans.
“Jim Crow” and the Supreme Court
Southern Democrats wished to return to power by using racial discrimination to mobilize white voters who hated the Freedmen. They approached this goal in two ways: first, the Ku Klux Klan (founded by the former Confederate general Nathaniel Bedford Forrest) would terrorize the Republican minority and the population of freed slaves, preventing them from casting votes even after the Fifteenth Amendment was passed; and second, by enacting laws which separated the races in all public spaces. These were later called “Jim Crow” laws, named for a racist blackface caricature of African-Americans by a white actor named Thomas D. Rice in the years before the Civil War. By 1892, the phrase “Jim Crow” referred to any law which separated whites from blacks in any public area.
The federal government tried on several occasions to break the Jim Crow laws, but with limited success. The Civil Rights Act of 1875, as well as the Fourteenth Amendment, guaranteed legal equality for all Americans regardless of race, but the Southern states repeatedly cited the Tenth Amendment and state sovereignty as justification for their racist laws. (Before the Civil War, the South had used this same argument to protect slavery within their borders.) In 1890, Louisiana passed a law segregating passengers on trains by race, and both black and white activists of the Citizens’ Committee of New Orleans soon mobilized to challenge this in the courts. One of their leaders, Homer Plessy, bought a ticket on a train departing from New Orleans and sat in a whites-only carriage. He was informed that due to his racial heritage, he would have to move to a “colored-only” car; he refused and was arrested.
Plessy’s case was heard in a Louisiana court, and his lawyer cited the Thirteenth and Fourteenth Amendments as evidence that he had every right to sit in whatever rail car he wished. The court disagreed, and Plessy was convicted of breaking the state’s Separate Car Act. The Louisiana Supreme Court refused to hear the case, and so Plessy’s attorneys appealed to the Supreme Court. Four years later, the case of Plessy v. Ferguson was brought before the highest court in the United States. The defendant was John Howard Ferguson, the judge in Plessy’s original case.
The Supreme Court had a difficult history with regards to racial issues in America. The court has the power of judicial review, which permitted it to rule on the constitutionality of federal, state and local laws. Until the 1850s, the court had used this power sparingly, preferring to allow Congress to decide on important social issues facing the country. In 1857, Chief Justice Roger Taney broke with this tradition and authored the most shameful decision in the court’s history: Dred Scott v. Sandford. In this ruling, the Supreme Court upheld a circuit court decision that African-Americans were not citizens of the United States, and that slaveowners had the right to bring their “property” into a free state (in effect making slavery legal across the United States). Thus, much was at stake for the Supreme Court’s reputation as the case of Plessy v. Ferguson came before the bar.
The court heard oral arguments on April 13, 1896, and issued its ruling on May 18th. Justice Henry Brown wrote the majority decision, and six other justices joined. The Court ruled that states could segregate public facilities as long as they provided equal facilities for both races. The lone dissenter in the case was Justice John Harlan (later known as the “Great Dissenter”), and his fiery statement about the Constitution being “color-blind” and labeling the ruling as being on the same level as the hated Dred Scott would eventually lay the groundwork for Plessy’s ultimate reversal.
Now armed with the Supreme Court’s blessing, Southern states increased their legal oppression of black Americans, passing new laws each year which further restricted their rights and freedoms. Anti-miscegenation laws were passed in many states, forbidding whites and nonwhites from marrying one another. Even some federal government agencies adopted segregationist policies. The Federal Housing Administration forced African-Americans into specific neighborhoods in American cities to minimize their impact in congressional elections.
President Woodrow Wilson, a hero to modern progressives, permitted the Civil Service to segregate its workers and signed a law in 1917 to segregate the US Armed Forces. The 350,000 African-Americans who served in the military during the Great War were commanded by white officers, and black soldiers were prohibited by law from commanding white troops under any circumstances. This policy continued during the Second World War, in which only five African-Americans served as officers in an army numbering over sixteen million men. No black soldiers were awarded the Medal of Honor despite several acts of unimaginable heroism until 1997, 52 years after the war had ended.
The Civil Rights Era
As the world saw the horrors of the Nazi Holocaust in tapes played at Nuremberg and heard stories from returning American soldiers who had liberated the camps, many Americans began to question their country’s racist policies toward their own minority citizens. In 1948, amidst a storm of criticism, President Harry Truman signed Executive Order 9981 and desegregated the Armed Forces. The president, a Southerner, believed that merit should determine command, not skin color.
The movement for civil rights would grow in strength during the late 1940s, and as America entered the relatively peaceful and prosperous 1950s, it became clear that it was time for change. In 1954, a class action lawsuit in Topeka, Kansas, evolved into a suit between an African-American welder named Oliver Brown, whose daughter Linda had been denied admittance to an elementary school because she was black, and the Board of Education in Topeka. The lawsuit was filed in federal court, as were others in the states of South Carolina, Virginia, Delaware, and the District of Columbia. In each case, district and circuit courts refused to permit integration, and the Supreme Court chose to hear all five cases under the umbrella of Brown v. Board of Education.
Racial tensions were running high in the country as the Supreme Court met to hear the case. Brown’s defense was led by the chief counsel for the National Association for the Advancement of Colored People, Thurgood Marshall, who was later appointed to the Supreme Court by President Lyndon Johnson. When the court first heard the case in the spring of 1953, they were unable to come to a decision. The case was re-heard in the fall of that year, but Justice Felix Frankfurter was able to delay a decision yet again in an effort to convince Chief Justice Fred Vinson to rule in favor of Brown. When the chief justice died in September 1953, President Eisenhower used his recess appointment powers to install Earl Warren as the new Chief Justice. (Frankfurter commented that Vinson’s death was conclusive proof of the existence of God.)
Warren, a supporter of desegregation, was able to wrangle the other justices to his side, and on May 17, 1954, the Supreme Court unanimously ruled in favor of Oliver Brown in what many observers—and members of the court—have called the greatest moment in the court’s history. Brown v. Board of Education required all states to immediately desegregate their public schools. It was a massive victory for the cause of civil rights and legal equality between the races. However, the court did not provide a mechanism for desegregation, and in a second decision a year later, it ordered schools to comply with Brown “with all deliberate speed.” Brown’s impact was immediate—the civil rights movement was galvanized to push for greater equality. When Rosa Parks defied a segregationist law by sitting on a bus seat reserved for whites and was arrested and abused by racist police officers in Birmingham, Alabama, the demand for implementing Brown’s provisions grew even louder. In November 1960, in the midst of a national election, President Eisenhower took measures into his own hands and sent US marshals into the South to forcibly desegregate public schools. Five marshals escorted Ruby Bridges, who was then only six years old, into her new elementary school as angry mobs of both white and black Americans hurled abuse at the little girl. At last, the Court’s ruling was being enforced.
The Supreme Court’s Legacy
The Civil Rights Era culminated with Dr. Martin Luther King’s speech in August 1963 in Washington proclaiming his dream of a color-blind society (echoing Justice Harlan’s dissent in Plessy) and the passage of the 1964 Civil Rights Act. The dream of legal equality for African-Americans had become a reality at last. Of course, work remains to be done in the area of social equality and putting an end to racism on both sides of this controversial issue.
The American people affirmed the Supreme Court’s ruling in Brown as the Civil Rights movement marched onward, and the court continued to issue decisions to break down barriers to legal equality. As the 1960s dawned and waves of progressive change swept across the United States in areas beyond race relations, the court looked back to Brown and began to see itself as an agent of social change. In 1964, the Supreme Court struck down a Connecticut law banning the use of contraceptives in Griswold v. Connecticut, affirming a right to marital privacy as belonging to all Americans. This trend continued and is still seen in major court rulings today. In each case, the court looked back to Brown v. Board of Education in impact litigation decisions and has used its power of judicial review to bring about social change. While some may question the court’s use of its power for progressive ends, it is inarguable that the cause of equality and civil rights for all Americans transformed both the Supreme Court and the country as a whole.