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
  Scotts 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.
• Taneys 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 Taneys 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
• Taneys 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 Equal Doctrine.
• 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.

14
(No Transcript)
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.