A. Creation of National Gov’t and Separation of Power 7

Early 14th Amendment cases and meaning of Equal Protection

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Early 14^th Amendment cases and meaning of Equal Protection

Strauder (1880) – equal protection extends to jury service p. 259
1. Holding
  1. Established the right to have your race represented in the jury pool, but not in the jury itself.
  2. Could still keep blacks from being on juries by property tests, literacy tests, etc.
2. What has symbolic significance here?
  1. Making sure that equality of protection does not extend fully to all civil or political rights for all people
    1. Equality of protection does not require that all persons shall be permitted to participate in the gov’t and administration of laws, to hold offices, or to be clothed with public trusts.
    2. Yet no one will contend that equal protection to women, to children, to the aged, to aliens, can only be secured by allowing persons of the class to which they belong to act as jurors in cases affecting their interests.
    3. Guardianship or wardship was still appropriate for women and children, but not for black men. Maleness is the reason – all the arguments about male privilege have to be extended to black men as well. It was no longer proper to see black men as other than free for economic reasons as well, although many of the contracts in place after slavery ended really were still onerous contracts.
    4. Children and women were still seen to be in positions of economic subordination. But the condition of economic subordination – slavery, was lifted for men – and so the argument for denying them political rights by being economically subordinate was no longer true.
3. Badge of inferiority
  1. By singling out blacks from serving on juries b/c of their color, is “a brand upon them”, an assertion of their inferiority, a stimulant to race prejudice which is an impediment to securing to individuals equal justice which the law aims to secure to all others.
  2. Does cost state gov’t more to do exclusions on a race-neutral basis, if someone makes sure that restrictions are enforced on a race-neutral basis. But this was not the case – they were always enforced unevenly against Blacks.
  3. But the conflicts taking place in the South are not just black/white, but also of class – keeping political control for white wealthy Southern planters and excluding poor whites or carpetbaggers.
4. Political vs. Social Rights
  1. Uses the word political, even though there were strong beliefs that the 14^th amendment didn’t reach political rights.
  2. Says that amendment allows for exclusion based on property, education, de facto is ok – effectively painting an evasive path for the Southern States – showing them how to legally discriminate.
  3. Paints them as ignorant and children – inferior in social status. The case could have been kinder towards blacks – did not need to go so far as to depict them as inferior.
  4. Serving on juries was a civil right derivate of a political right – is this more properly a civil or political right?
    1. Even among the Republicans, there were radicals and conservatives – some who pushed for the black vote and others who didn’t.
    2. Some of the debate was about federalism – whether war required a whole new look at federalism...some Northerners would have had problems with having the 14^th amendment read broadly to open up a whole new field of political rights, which the States had traditionally regulated.
  5. Equality of protection extends only to political rights – leaves social rights as they stood before. Political rights enumerated are opening courts for blacks, prevention and redress of wrongs, enforcement of contracts, same rules of evidence and procedure, no impediments to property and pursuit of happiness.
5. Difference between de facto and de jure discrimination intact
  1. De facto discrimination – on the basis of property laws, age, educational qualifications
  2. De jure discrimination – on its face discrimination, as was the case in Strauder.
Plessy (1896) p. 272 – Social Equality as Distinguished from Political
1. Background
  1. Plessy was an octoroon – he was 1/8 black.
  2. Was brought by group of blacks and lawyers who thought they could defeat the law by claiming that Plessy was denied his property right of being considered white by being forced to sit in the black compartment of the train.
2. Ruling
  1. 13^th amendment only deals with slavery or servitude and making people ride in separate cars is not a form of servitude.
  2. 14^th amendment enforces 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 enforce a commingling of the two races upon terms unsatisfactory to either.
    1. He refers to school separation, specifically segregated schools in Northern abolitionist states where political rights have been generally supported, to show that the 14^th amendment could not have meant to prohibit segregation.
    2. If the 14^th amendment were to be read that way, then it would go against custom and practices.
  3. Draws distinction between social and political rights – says that the Constitution cannot put them upon the same plane socially and that legislation is “powerless to eradicate racial instincts or abolish distinctions based upon physical differences.”
    1. Says that extent of State police power extends only to that which is reasonable – only to laws which are enacted for the public good in good faith.
    2. Says underlying fallacy of P’s argument is that enforced separation stamps blacks with badge of inferiority.
  4. Current doctrine:
    1. Gives Congress much more power to legislate under 13^th amendment – to abolish all badges or incidences of slavery.
    2. Can any legislation predicated under a theory of black inferiority be unconstitutional under the 13^th amendment.
  5. Harlan dissent
    1. 13^th amendment prevents imposition of any burdens or disabilities which constitute badges of slavery.
    2. If the intent was to abolish practices which made blacks inferior (a broad reading), then there might be a good argument under the 13^th amendment.
    3. If the Court had abolished segregation and taken a leadership role, would it have helped or hurt the civil rights movement?
    4. Can separate practical significance of a law from its symbolic significance – where symbolic significance is more harmful that it had to be.
Giles (1903) separate handout; circularity of reasoning; voting discrimination best addressed by legislature – court can provide no remedy
1. Background
  1. Under section 187 of article 8 of the Alabama constitution persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race.
  2. Therefore, by the refusal, the plaintiff and the other negroes excluded were deprived not only of their votes at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903.
  3. The white men generally are registered for good under the easy test and the black men are likely to be kept out in the future as in the past. This refusal to register the blacks was part of a general scheme to disfranchise them, to which the defendants and the State itself, according to the bill, were parties.
  4. Rising tide of white supremacy and violence.
2. Ruling
  1. Administration defeating intent cannot cure initial invalidity
    1. If the instrument truly is void, then his registration would also be invalid – how would the court become party to an invalid instrument and add another voter to its lists.
    2. The fraud would not be cured through registration of all blacks – frauds or unconstitutionality in the AL constitution cannot be cured by administration that defeated intent to exclude blacks.
  2. Court of equity jurisdictional determination – political question should be left up to legis.
    1. Needs to determine ability to enforce decision – circuit court has no constitutional power to control action by direct means. Court has little practical power over people in the state.
    2. If conspiracy and intent on the part of the white population exist, then simply registering blacks is not going to cure the problem – unless court is prepared to supervise voting, then all P could get is empty form.
    3. Relief from great political wrong has to be given by legislative and political dept. of US.
      1. What about applied challenges and affirmative injunctions?
      2. Is it about the distinction between equitable and legal relief?
  3. Brewer’s dissent
    1. Wiley v. Sinkler got relief – recovered damages of election board for rejecting his vote.
3. Evaluation and aftermath
  1. Signaled that SC would not intervene in state efforts to disenfranchise blacks
    1. Holmes indicated that Congress and President should intervene by sending troops, etc.
  2. Giles filed an action in state court for damages and a writ of mandamus ordering him to be registered
    1. Court ruled that if provisions of AL constit violated 14^th and 15^th amendments, then it followed that registrars had no right to register him, and refusal to do so can’t mean damages
    2. If registrars did have auth, then decisions about who was qualified were judicial acts for which registrars were legally immune
    3. SC affirmed the ruling
  3. Congress then said that the proper forum (in debating disenfranchisement in election of South House member) was not the legislature – not ideal body to pass constitutional judgment on acts of other bodies – the citizen deprive of his vote in SC should go through the SC courts system.
    1. Congress could have used Section 2 of 14^th amendment to reduce reps of Southern states in Congress
  4. Was this Holmes signaling that if majority rule dictated something, there was nothing that should be done by the court? Electoral majorities as unanswerable military victors...
  5. Or does it reflect that that adjudication must be results-oriented? If no remedy, no ruling..
    1. Was Holmes using realism to escape court’s cowardice or to justify his own racist feelings?
    2. Pildes: Political context of disenfranchisement was more fluid – was not unstoppable. Disenfranchising constit passed with slim majorities – a negative court decision could have easily influenced the tide.
  6. Or that law is impotent before history?
  7. Some later court cases (Guinn) which struck down OK registration-date statutes (picking date before 14^th amendment) as unconstit. Distinguished claim from Giles in that P was making legal claim, not equitable.

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A. Creation of National Gov’t and Separation of Power 7

Early 14th Amendment cases and meaning of Equal Protection

Early 14th Amendment cases and meaning of Equal Protection

Strauder (1880) – equal protection extends to jury service p. 259

Holding

Established the right to have your race represented in the jury pool, but not in the jury itself.

Could still keep blacks from being on juries by property tests, literacy tests, etc.

What has symbolic significance here?

Making sure that equality of protection does not extend fully to all civil or political rights for all people

Equality of protection does not require that all persons shall be permitted to participate in the gov’t and administration of laws, to hold offices, or to be clothed with public trusts.

Yet no one will contend that equal protection to women, to children, to the aged, to aliens, can only be secured by allowing persons of the class to which they belong to act as jurors in cases affecting their interests.

Children and women were still seen to be in positions of economic subordination. But the condition of economic subordination – slavery, was lifted for men – and so the argument for denying them political rights by being economically subordinate was no longer true.

Badge of inferiority

By singling out blacks from serving on juries b/c of their color, is “a brand upon them”, an assertion of their inferiority, a stimulant to race prejudice which is an impediment to securing to individuals equal justice which the law aims to secure to all others.

Does cost state gov’t more to do exclusions on a race-neutral basis, if someone makes sure that restrictions are enforced on a race-neutral basis. But this was not the case – they were always enforced unevenly against Blacks.

But the conflicts taking place in the South are not just black/white, but also of class – keeping political control for white wealthy Southern planters and excluding poor whites or carpetbaggers.

Political vs. Social Rights

Uses the word political, even though there were strong beliefs that the 14th amendment didn’t reach political rights.

Says that amendment allows for exclusion based on property, education, de facto is ok – effectively painting an evasive path for the Southern States – showing them how to legally discriminate.

Paints them as ignorant and children – inferior in social status. The case could have been kinder towards blacks – did not need to go so far as to depict them as inferior.

Serving on juries was a civil right derivate of a political right – is this more properly a civil or political right?

Even among the Republicans, there were radicals and conservatives – some who pushed for the black vote and others who didn’t.

Some of the debate was about federalism – whether war required a whole new look at federalism...some Northerners would have had problems with having the 14th amendment read broadly to open up a whole new field of political rights, which the States had traditionally regulated.

Difference between de facto and de jure discrimination intact

De facto discrimination – on the basis of property laws, age, educational qualifications

De jure discrimination – on its face discrimination, as was the case in Strauder.

Plessy (1896) p. 272 – Social Equality as Distinguished from Political

Background

Plessy was an octoroon – he was 1/8 black.

Was brought by group of blacks and lawyers who thought they could defeat the law by claiming that Plessy was denied his property right of being considered white by being forced to sit in the black compartment of the train.

Ruling

13th amendment only deals with slavery or servitude and making people ride in separate cars is not a form of servitude.

He refers to school separation, specifically segregated schools in Northern abolitionist states where political rights have been generally supported, to show that the 14th amendment could not have meant to prohibit segregation.

If the 14th amendment were to be read that way, then it would go against custom and practices.

Draws distinction between social and political rights – says that the Constitution cannot put them upon the same plane socially and that legislation is “powerless to eradicate racial instincts or abolish distinctions based upon physical differences.”

Says that extent of State police power extends only to that which is reasonable – only to laws which are enacted for the public good in good faith.

Says underlying fallacy of P’s argument is that enforced separation stamps blacks with badge of inferiority.

Current doctrine:

Gives Congress much more power to legislate under 13th amendment – to abolish all badges or incidences of slavery.

Can any legislation predicated under a theory of black inferiority be unconstitutional under the 13th amendment.

Harlan dissent

13th amendment prevents imposition of any burdens or disabilities which constitute badges of slavery.

If the intent was to abolish practices which made blacks inferior (a broad reading), then there might be a good argument under the 13th amendment.

If the Court had abolished segregation and taken a leadership role, would it have helped or hurt the civil rights movement?

Can separate practical significance of a law from its symbolic significance – where symbolic significance is more harmful that it had to be.

Giles (1903) separate handout; circularity of reasoning; voting discrimination best addressed by legislature – court can provide no remedy

Background

Under section 187 of article 8 of the Alabama constitution persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race.

Therefore, by the refusal, the plaintiff and the other negroes excluded were deprived not only of their votes at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903.

Rising tide of white supremacy and violence.

Ruling

Administration defeating intent cannot cure initial invalidity

If the instrument truly is void, then his registration would also be invalid – how would the court become party to an invalid instrument and add another voter to its lists.

The fraud would not be cured through registration of all blacks – frauds or unconstitutionality in the AL constitution cannot be cured by administration that defeated intent to exclude blacks.

Court of equity jurisdictional determination – political question should be left up to legis.

Needs to determine ability to enforce decision – circuit court has no constitutional power to control action by direct means. Court has little practical power over people in the state.

If conspiracy and intent on the part of the white population exist, then simply registering blacks is not going to cure the problem – unless court is prepared to supervise voting, then all P could get is empty form.

Relief from great political wrong has to be given by legislative and political dept. of US.

Brewer’s dissent

Wiley v. Sinkler got relief – recovered damages of election board for rejecting his vote.

Evaluation and aftermath

Signaled that SC would not intervene in state efforts to disenfranchise blacks

Holmes indicated that Congress and President should intervene by sending troops, etc.

Giles filed an action in state court for damages and a writ of mandamus ordering him to be registered

Court ruled that if provisions of AL constit violated 14th and 15th amendments, then it followed that registrars had no right to register him, and refusal to do so can’t mean damages

If registrars did have auth, then decisions about who was qualified were judicial acts for which registrars were legally immune

SC affirmed the ruling

Congress then said that the proper forum (in debating disenfranchisement in election of South House member) was not the legislature – not ideal body to pass constitutional judgment on acts of other bodies – the citizen deprive of his vote in SC should go through the SC courts system.

Congress could have used Section 2 of 14th amendment to reduce reps of Southern states in Congress

Was this Holmes signaling that if majority rule dictated something, there was nothing that should be done by the court? Electoral majorities as unanswerable military victors...

Or does it reflect that that adjudication must be results-oriented? If no remedy, no ruling..

Was Holmes using realism to escape court’s cowardice or to justify his own racist feelings?

Pildes: Political context of disenfranchisement was more fluid – was not unstoppable. Disenfranchising constit passed with slim majorities – a negative court decision could have easily influenced the tide.

Or that law is impotent before history?

Some later court cases (Guinn) which struck down OK registration-date statutes (picking date before 14th amendment) as unconstit. Distinguished claim from Giles in that P was making legal claim, not equitable.

Early 14^th Amendment cases and meaning of Equal Protection

Uses the word political, even though there were strong beliefs that the 14^th amendment didn’t reach political rights.

Some of the debate was about federalism – whether war required a whole new look at federalism...some Northerners would have had problems with having the 14^th amendment read broadly to open up a whole new field of political rights, which the States had traditionally regulated.

13^th amendment only deals with slavery or servitude and making people ride in separate cars is not a form of servitude.

He refers to school separation, specifically segregated schools in Northern abolitionist states where political rights have been generally supported, to show that the 14^th amendment could not have meant to prohibit segregation.

If the 14^th amendment were to be read that way, then it would go against custom and practices.

Gives Congress much more power to legislate under 13^th amendment – to abolish all badges or incidences of slavery.

Can any legislation predicated under a theory of black inferiority be unconstitutional under the 13^th amendment.

13^th amendment prevents imposition of any burdens or disabilities which constitute badges of slavery.

If the intent was to abolish practices which made blacks inferior (a broad reading), then there might be a good argument under the 13^th amendment.

Court ruled that if provisions of AL constit violated 14^th and 15^th amendments, then it followed that registrars had no right to register him, and refusal to do so can’t mean damages

Congress could have used Section 2 of 14^th amendment to reduce reps of Southern states in Congress

Some later court cases (Guinn) which struck down OK registration-date statutes (picking date before 14^th amendment) as unconstit. Distinguished claim from Giles in that P was making legal claim, not equitable.