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The Supreme Court's Failure To Protect Blacks' Rights

After the Civil War, 4 million former slaves were looking for social equality and economic opportunity. It wasn't clear initially whether they would enjoy full-fledged citizenship or would be subjugated by the white population.

In the 1860s, it was the Republican Party in Washington — the home of former abolitionists — that sought to grant legal rights and social equality to African-Americans in the South. The Republicans — then dubbed radical Republicans — managed to enact a series of constitutional amendments and reconstruction acts granting legal equality to former slaves — and giving them access to federal courts if their rights were violated.

The 13th Amendment, which was ratified in 1865, abolished slavery. Three years later, the 14th Amendment provided blacks with citizenship and equal protection under the law. And in 1870, the 15th Amendment gave black American males the right to vote.

Five years later, Congress passed the Civil Rights Act of 1875, a groundbreaking federal law proposed by Republican Sen. Charles Sumner of Massachusetts, which guaranteed that everyone in the United States was "entitled to the full and equal enjoyment" of public accommodations and facilities regardless of race or skin color.

"What the radical Republicans wanted, led by Charles Sumner in the Senate and Thaddeus Stevens in the House, was probably the largest experiment in social engineering ever taken," says constitutional scholar Lawrence Goldstone. "They wanted the federal government to take these four million newly freed slaves and integrate them fully into society virtually immediately."

But that didn't happen — and wouldn't for decades — in part because of decisions handed down by the Supreme Court, which declared the Civil Rights Act of 1875 unconstitutional in 1883. The court also said Congress lacked the constitutional authority under the 14th Amendment to grant equal protections under the law to blacks, stating that only states and local governments could do that. It also passed a ruling stating that the Enforcement Act of 1871, which forbade meetings of Ku Klux Klan members, was unconstitutional.

In his book Inherently Unequal, Goldstone examines how the Supreme Court's rulings in these cases suppressed the civil rights movement in the latter half of the 19th century and affected the treatment of blacks in Southern states for decades, ultimately resulting in their mass migration to cities in the North.

The court's rulings opened up "a period of de jure racial discrimination that would last almost a century and was virtually as odious as slavery itself," writes Goldstone. "[It] also threw open the door to a more codified approach to removing African-Americans first from the voting rolls and then from mainstream civil life."

After the Supreme Court ruled against the Civil Rights Act of 1875, every single Southern state redrafted its constitution. In South Carolina and Alabama, ballots were introduced to make it virtually impossible for people with poor reading skills to correctly cast their votes. In Mississippi, voting tests required applicants to interpret a section of the state constitution — whites were given a simple clause to read, while blacks were given some of the most difficult passages in the constitution, some of which had been written for that very purpose.

"In Louisiana, in 1897, there were 130,000 African-Americans registered to vote," Goldstone says. "A new constitution was passed in 1898. It was not sent to the people for ratification but just passed by the legislature. Two years after that — by 1900 — that 130,000 African-American voting bloc had been reduced to 5,000 [voters]."

In 1890, the legislature in Louisiana also passed a law forbidding the mixing of races on public railways. The law said rail cars could be separate — but they had to be "equal." The Supreme Court case Plessy v. Ferguson then upheld that decision in 1896, legitimizing even more discriminatory actions against African-Americans. It was not until 1954, when the court overturned Plessy v. Ferguson in the Brown v. Board of Education decision, that "de jure racial segregation was ruled a violation of the Equal Protection Clause of the 14th Amendment."

But the damage of the court's decision had already been done, Goldstone says.

"All you have to do is look at the rise of Jim Crow and the ability of Southern state governments to segregate, to discriminate, to imprison without trial, to beat to death, to lynch — without anyone ever being brought to justice," he says. "It was only possible because the court had very slowly chipped away at [the Civil Rights Act of 1875 and the 14th Amendment]."

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