The Supreme Court’s infamous 1896 ruling in Plessy v. Ferguson – issued several decades after white actor Thomas Dartmouth Rice performed in blackface makeup as “Jim Crow,” and seven years prior to W.E.B. Du Bois’s publication of The Souls of Black Folk – upheld the constitutionality of a Louisiana statute requiring that all railway companies “shall provide equal but separate accommodations for the white, and colored races.” The Plessy court held that “the enforced separation of the races” does not deny Black citizens of the equal protection of the laws, within the meaning of the fourteenth amendment.
The lone dissenter in Plessy was Justice John Marshall Harlan, who thirty years earlier had opposed emancipation and had refused to manumit his own enslaved persons until the thirteenth amendment (1865) required this. His consciousness raised in the intervening decades, Harlan objected in Plessy: “The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.”
Plessy exemplified the dialectical tensions historically accompanying the equality value in American law. Law simultaneously claims to endorse equality and shores up ruling interests in maintenance of inequalities. The Plessy majority accomplished both by laying the blame for any such inequality at the feet of those victimized by the racialist codes, by virtue of their own perceptions and attitudes: “If the enforced separation of the two races stamps the colored race with a badge of inferiority, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
The Constitution’s fourteenth amendment prescribes that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This amendment is the source of equal protection jurisprudence in the United States. A strict, literalist interpretation of the amendment restricts equal protection rights to infringements by the states (“no state”), hence not by the national power structure. In Plessy, however, that amendment was not deemed capable of safeguarding Black people even from official state discrimination. Rather, the wealthy elite used law to reinforce a racial wedge to divide people and advance their own economic interests and racist proclivities.
By the close of the Reconstruction Era, the federal government relinquished its commitment to advance the political and civil rights of freed people by withdrawing federal troops from the erstwhile confederacy. As Richard Rothstein put it in his 2017 work The Color of Law: A Forgotten History of How Our Government Segregated America: “Denied the right to vote, segregated in public transportation, schools, and private accommodations, and victimized by lynching and other forms of brutality, African Americans in the South were reduced again to a lower-caste status.”
The fragility of American law’s equality claim was further laid bare when the federal government blatantly engaged in racial classifications during World War II, separating out anyone having Japanese ancestry for harsh treatment. In the case of Hirabayashi v. United States (1943), the Supreme Court approved of a special curfew for Japanese Americans, declaring that “[t]he Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process.” The court’s odious decision in Korematsu v. United States (1944) followed, upholding the constitutionality of those citizens’ removal and internment.
Constitutional equal protection jurisprudence was said to have “matured” upon the Supreme Court’s ruling in Bolling v. Sharpe (1954), holding that the fourteenth amendment’s equal protection provision binds the federal government as well as the individual states. Bolling was a companion case to Brown v. Board of Education (1954), which struck down Plessy’s separate-but-equal doctrine in the context of state educational systems. Yet because it remains the case that the fifth amendment omits any express guarantee of “the equal protection of the laws,” the federal commitment itself to equal protection is ultimately vulnerable to being dismantled by a strictly literalist Supreme Court.
So what now? There are no guarantees that the Supreme Court will not revisit Bolling. In decision after decision, extremist ideology has been evicting long-held precedents, disregarding rights deemed immanent within the constitutional framework, and disavowing the promise of reasonable accommodation between constitutional interpretation and the actual lived lives of most citizens and residents. It is conceivable that even law’s very claim to afford equal rights, which has for some time functioned as an aspirational constraint on adjudication and legislation, may be jettisoned.
Having ominously taken the appeal filed by the North Carolina House of Representatives in the case of Moore v. Harper, the court may be poised to strictly interpret the Constitution’s “Elections Clause,” which on its face delegates to “state legislatures” the authority to regulate the ways in which senators and representatives are elected. A literal interpretation would, contrary to Supreme Court precedents, permit right-wing state legislatures to enact congressional redistricting legislation in conflict with provisions of the state constitution as interpreted by the state’s judiciary. A similar constitutional clause, called the “Electors Clause,” provides that the state legislatures are in charge of appointing presidential electors. The court, strictly construing the constitutional text as Alito does in Dobbs v. Jackson Women’s Health Organization, without any respectful regard to existing constitutional norms, would then effectively authorize Donald Trump’s sort of “fake electors” scheme for states controlled by Republican legislatures.
In times of accelerated climate crisis exacerbating scarcity of resources alongside increased concentrations of wealth and privilege, one can forecast the ruling sector’s go-to strategy of pitting groups of people against one another, via a jurisprudence that places disfavored religious, ethnic and racial groups, and marginalized sexual identities and orientations, outside the realm of federal constitutional protection. Reinvigorating and extending the logic of cases such as Hirabayashi and Korematsu could foreseeably flow from the sort of literal and strict construction of constitutional language that Moore v. Harper portends, excising equal protection from the fifth amendment as a federally protected interest. Clarence Thomas’s concurrence in Dobbs, advocating revisiting a variety of cases affording reproductive and sexual orientation rights, was reminiscent of his concurrence in United States v. Lopez (1995) suggesting that the court declare civil rights legislation beyond the reach of the federal commerce power. Even this retrograde ambition is not presently inconceivable.
Perhaps a scenario placing equal protection and civil rights legislation at risk is alarmist, overstating the bleak directions in which constitutional law may be headed. Much can be overcome through the vote in the next few election cycles. But it is well to note Martin Luther King, Jr.’s caveat (Where Do We Go From Here, p. 162) that everything needed “will not like magic materialize from the use of the ballot.”
King counseled that the vote, nevertheless, is a lever of power that, if creatively used, can help to achieve far-reaching changes. For this reason, the vote itself has, unfortunately, also been under attack, not least forcefully beginning nearly a decade ago, in Shelby County v. Holder (2013), wherein the Supreme Court struck down key provisions of the 1965 Voting Rights Act requiring states with a history of racist electoral suppression to “preclear,” through the United States Attorney General, revisions to their voting rights rules. And more recently, with the Trump-appointed justices in place, the court has been resorting to its “shadow docket” – by which it issues unsigned orders without argument from the parties or rationale by the court — to reinstate election law changes that dilute or suppress Black and other minority voting rights.
Professor Du Bois, writing at a time when it had been “plainly and frankly declared in nearly every case that the object of the disfranchising laws is the elimination of the Black man from politics,” rejected as the path forward taking “less and less interest in government,” or giving up the right to take such an interest without protest. Rather, for Du Bois, “only by a union of intelligence and sympathy across the color-line in this critical period of the Republic shall justice and right triumph.”permission.