THE EXERCISE OF JUDICIAL REVIEW: CIVIL RIGHTS

1. THE EXERCISE OF JUDICIAL REVIEW: CIVIL RIGHTS Topic #18

2. The Missouri Compromise (1820)

3. Dred Scott v. Sandford (1857) • Scott had been a slave who had resided (with his master) for extended period in territory in which slavery had been prohibited by the Missouri Compromise legislation enacted by Congress in 1820. • It had been generally understood that Congress had the power to do this under Art. IV, Sec. 3(2):The Congress shall have power to make all needful rules and regulations respecting the territory . . . belonging to the United States. • Believing that he had thereby gained his freedom, Scott sued Sandford (his nominal owner) in federal court for his freedom. • He sued under the diversity clause of the Constitution. • The judicial power [of the U.S.] shall extend to all cases between citizens of different states. • Scott now resided in Missouri and Sandford in New York.

4. Dred Scott v. Sandford (cont.) • Chief Justice Roger Taney wrote the opinion of a divided SC. • The question is simply this: Can a negro become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? • We think [African-Americans] are not … included, and were not intended to be included, under the word "citizens" in the constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

5. Dred Scott v. Sandford (cont.) • Taney could have stopped there and dismissed Scott’s claim, but he did not. • It is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident. • Historical footnote: Shortly after the decision, Scott was freed by his owners, who had anti-slavery views. • Taney’s general theme: we may be more enlightened now, but the SC must interpret and apply the Constitution as it was written 70 years ago and in light of “original intent.” • On Taney’s interpretation, it is understandable that the abolitionist William Lloyd Garrison denounced the Constitution as “a document forged in Hell.” • In fact, most historians believe that • Southerner slave owner defended slavery with much more enthusiasm and confidence in 1857 than 1787; and • Taney’s rulings were inconsistent with common earlier understandings of the meaning of the Constitution.

6. Race and Slavery in The Original Constitution • The original Constitution made no reference to race (or religion or gender). • Three specific provisions of the original Constitution dealt with slavery (but avoided use of the term). • [The Apportionment Clause] Representatives . . . shall be apportioned among the several States according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three fifths of all other Persons. • [Commerce Compromise] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808. • No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

7. The “Second Founding” and “Civil Rights” • Outcome of Civil War plus Amendments 13 -15. • For first time, the Constitution provided potentially broad protection for people against abuse by their own state governments, • especially for African-Americans in the South (where about 95% of African-Americans then lived). • Civil Rights: using the U.S. Constitution and federal law to secure rights of racial minorities (especially African-Americans) against abuse by state governments (especially in the South). • One justification for an “activist” Supreme Court is to provide such protection. • However, SC did not exercise judicial review for this purpose until the mid-20th century. • For African-Americans, the effects of this “Second Founding” were largely delayed by about 100 years.

8. The Origins of “Jim Crow” • In the immediate post-CW Reconstruction period, African-Americans and white (“carpetbagger”) Republican allies (protected by a sympathetic Republican administrations and Congress and by federal civil rights laws) dominated politics in many Southern states. • Following the disputed Presidential election of 1876, “redeemer” white Democratic governments took control in all Southern states. • Initially, this did not greatly affect the status of African-Americans. • But beginning about 1890, Southern states began to draw up new Constitutions which, together with other laws and extra-legal practices, established a regime of “white supremacy” (often called “Jim Crow”), which had two principal elements: • de jure [in law] racial segregation (which the post-CW amendments did not explicitly prohibit); and • de facto [in fact] racial disenfranchisement (which was explicitly prohibited by the 15th Amendment).

9. The Separate But Equal Doctrine • Racial segregation laws were challenged in court on the grounds that they violated the Equal Protection clause of the 14th Amendment: • No state shall … deny to any person within its jurisdiction the equal protection of the laws. • Plessy v. Ferguson (1896) produced the Separate But EqualDoctrine. • The case pertained to state-mandated segregation in passenger trains (not schools). • The SC ruled that state-mandated segregation laws did not violate the Equal Protection clause, provided the separate facilities were substantially equal. • This ruling solidified racial segregation in the South. • Moreover, the “equal” stipulation was not taken very seriously.

10. “Separate But Equal” (cont.) • The opinion of the court: • The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other . . . We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. • Dissenting opinion by Justice Harlan: • In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. . . . Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.

11. Racial Disenfranchisement • Because of the 15th Amendment, racial disenfranchisement could be accomplished only by indirect means, subterfuge, and intimidation: • literacy tests (with subjective enforcement and a sometimes a “grandfather clause” to enfranchise illiterate whites); • poll taxes; • voter registration procedures, etc. • A new opportunity for disenfranchisement presented itself with the development of direct primary elections: it was claimed that • parties are private associations, and therefore • primary elections are party affairs, not covered by the 15th Amendment. • Given the one-party politics of the “Solid South,” winning the Democratic (“white”) primary was tantamount to winning election. • Smith v. Allwright (1944) declared “white primaries” to be in violation of the 15th Amendment. • Voting Rights Act (1965).

12. Taking “Separate But Equal” Seriously • The NAACP Legal Defense began challenging “Jim Crow” segregation laws in the 1930s, focusing on education (initially at the graduate/professional school level) • Typical case: Sweatt v. Painter (1950) • The state of Texas had created a “separate but equal” law school, which manifestly was not equal in either “tangible” or “intangible” respects to the (white-only) Law School at the University of Texas. • Problem: By 1950, the NAACP evidently could win virtually any school segregation case on the grounds that the separate schools for African-Americans were not equal (as was almost always manifestly the case) • But there were thousands of segregated schools and school districts and each had to be challenged individually. • The NAACP looked for cases that would force the SC to reconsider and overrule the Separate But Equal Doctrine itself, at least as it applied to education.

13. Brown v. Board of Education (1954) • This case came from Topeka (Kansas) and was combined with somewhat similar cases from Delaware [where the plaintiffs had won and the school board was appealing], Virginia, South Carolina, and D.C. • In each case, the original plaintiffs conceded that the schools were substantially equal in tangible respects. • The case was argued and reargued at great length. • Chief Justice Warren (who joined the Court after initial oral arguments) tried successfully to get a unanimous decision, overruling the Separate But Equal doctrine applied to education, • on the grounds that racial segregation in education is inherently unequal, regardless of tangible factors.

15. Brown v. Board • Schedule for Oral Argument

16. Brown v. Board of Education (1954) • Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. • We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

17. Brown v. Board of Education (cont.) • Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question - the constitutionality of segregation in public education. • Brown v. Board (1955) • Full implementation of these constitutional principles may require solution of varied local school problems. . . . Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those [Federal district] courts. • The judgments below, except that, in the Delaware case, are accordingly reversed, and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

18. Little Rock Central High School, 1957

19. The End of Racial Segregation • “Massive resistance” to school desegregation was finally overcome by • Civil Rights Act (1964) • Federal Aid to Education Act (1965) • At about the same time, the SC overruled “separate but equal” in all arenas (not just education). • In the 1950s, some non-Southern states began to pass “public accommodations” laws (prohibiting private hotels, restaurants, etc., from discriminating on the basis of race). • The Civil Rights Act outlawed most forms of private racial segregation/discrimination (e.g., in public accommodations and employment). • Congress did this by invoking its power to regulate interstate commerce.