In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen\u2019s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship.\u00a0 From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence.\u00a0 In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement.\u00a0 The Court\u2019s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.<\/p>\n
The highlight reel that we all study in Constitutional Law class includes:<\/p>\n
<\/p>\n
<\/p>\n
The Slaughter-House Cases<\/em>, 83 U.S. 36 (1873) \u2013 In which the Fourteenth Amendment\u2019s Privileges or Immunities Clause was eviscerated \u201cso drastically as to make it all but meaningless,\u201d (Eric Foner,\u00a0The Second Founding: How the Civil War and Reconstruction Remade the Constitution<\/u>\u00a0133-36 (2019)), in effect giving states legal authority over issues of citizen\u2019s rights.<\/p>\n The Civil Rights Cases<\/em>, 109 U.S. 3 (1883) \u2013 In which the Court held that the protections of the Thirteenth and Fourteenth Amendments do not apply to racial discrimination by private individuals, in effect allowing for the denial of due process and equal protection that gave rise to Jim Crow and the Ku Klux Klan.<\/p>\n Plessy v. Ferguson<\/em>, 163 U.S. 537 (1896) \u2013 In which racial segregation in public facilities was found to be constitutional, in effect allowing a \u201cseparate but equal\u201d doctrine to counteract and subvert the Reconstruction legal framework.<\/p>\n In a strange perversion, the Supreme Court ended up accepting that the equal protection and due process afforded by the Fourteenth Amendment applied to corporations in addition to, and perhaps more so than, natural persons.\u00a0 (See<\/em> Santa Clara v. Southern Pacific<\/em>, 118 U.S. 394 (1886) and Pembina Consolidated Silver Mining Co. v. Pennsylvania<\/em>,125 U.S. 181 (1888).)\u00a0 An Atlantic<\/em> article from last year<\/a>\u00a0notes:<\/p>\n As Adam Winkler documents in We the Corporations<\/u>, from 1868 to 1912 the Supreme Court heard 604 Fourteenth Amendment cases. Fewer than 5 percent involved the civil rights of black Americans, and civil-rights advocates lost nearly all of those. \u201cMore than half of all the Fourteenth Amendment cases decided by the Supreme Court\u2014312 in total\u2014involved corporations,\u201d Winkler writes, \u201cwhich succeeded in striking down numerous laws regulating business, including minimum wage laws, zoning laws, and child labor laws.\u201d The redistribution of civil rights from American citizens to American corporations helped create the greatest disparities in wealth in the nation\u2019s history, until the present day.<\/p><\/blockquote>\n Why did the Court take the wrong side of history?\u00a0 Why give states such latitude?\u00a0 Why not expand on the Bill of Rights after Congress provided a road map?\u00a0 And with the application of protections to businesses, why should this constitutional check so overwhelmingly protect the powerful over the vulnerable?<\/p>\n Lawrence Goldstone in Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court<\/u> (2011) discusses the turnover in the judiciary, from Lincoln to Johnson to Grant, that supplied the Supreme Court with its jurisprudence.\u00a0 In an interview<\/a>, Goldstone summarized \u201c[A]s we moved later into the 19th century, most of the appointees had a corporate law background . . . [T]here were a lot of appointments which, when we look back, seem to have more to do with a political philosophy than with excellence on the bench or brilliant legal analysis.\u201d\u00a0 Regarding the \u201ctwenty-four men [who] served on the Supreme Court between 1870 and 1900,\u201d writes Eric Foner (supra<\/em> at 129), \u201cmost hailed from privileged backgrounds and had made livings representing railroads and other corporations before joining the Court . . . few had significant contact with black Americans.\u201d<\/p>\n At the time of his nomination, Morrison Waite, who would become Chief Justice from 1874 to 1888, was \u201cdescribed by the Nation<\/em> as being among \u2018the first rank of second rank lawyers,\u2019\u201d and \u201chad never held a federal office.\u201d\u00a0 (Goldstone, 2011, at 87.)\u00a0 After Waite, the Chief Justice from 1888 to 1910 was Melville Fuller, who, when nominated, had no judicial experience and \u201cwas described by a critic as the \u2018fifth best lawyer in the city of Chicago,\u2019 not meant as a compliment to either the man or the city.\u201d\u00a0 (Id<\/em>. at 145-46.)<\/p>\n This past week marked a milestone<\/a> in the Trump administration\u2019s re-fashioning of the federal judiciary as \u201ca quarter of the nation\u2019s 179 appeals court judges,\u201d are appointees of the current administration.\u00a0 There have been criticisms<\/a> of the nominees.\u00a0 More have received a rating of \u201cnot qualified\u201d from the American Bar Association<\/a> then those of the last four presidents.\u00a0 Some have never tried a case<\/a>, been co-counsel, or were even able to answer basic questions<\/a> about litigation.\u00a0 One was questioned about involvement with the Alliance Defending Freedom, a conservative Christian organization that was designated a \u201chate group\u201d<\/a> by the Southern Poverty Law Center.\u00a0 That same judge is now the youngest ever to be approved<\/a>, noteworthy because federal judicial appointments are for life.\u00a0 Others have refused to answer questions<\/a> during their confirmation hearings,\u00a0or been described as having<\/a> a \u201clack of humility, an \u2018\u201centitlement\u201d temperament,\u2019 a closed mind and an inconsistent\u00a0 \u2018commitment to being candid.\u2019\u201d<\/p>\n In October of last year, retired Supreme Court Justice John Paul Stevens commented<\/a> on the Trump administration\u2019s then-nominee for the Supreme Court, Brett Kavanaugh.\u00a0 Justice Stevens said that prior to the congressional hearings Kavanaugh seemed qualified to serve on the high court, but Kavanuagh\u2019s behavior at the confirmation hearings had made Justice Stevens reluctantly change his mind.\u00a0 Rather than displaying dispassion, deliberation, empathy, and objectivity, Kavanaugh exhibited extreme partisanship, petulance, and unprofessional conduct.\u00a0 Justice Stevens referred to analysis<\/a> \u201cthat has demonstrated a potential bias involving enough potential litigants before the court that [Kavanaugh] would not be able to perform his full responsibilities . . . for the good of the court, it\u2019s not healthy to get a new justice that can only do a part-time job.\u201d<\/p>\n \u201cThe past is never dead.\u00a0 It\u2019s not even past<\/a>.\u201d Viewing current events in a more historic context can sometimes lessen the sting of what often seems like the absurdity of national politics<\/a>.\u00a0 The question is whether or not we will learn from the past.<\/p>\n","protected":false},"excerpt":{"rendered":" In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen\u2019s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in 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