Wednesday, May 18, 2022

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C. The Federal Government Maintained De Jure Racial Segregation And Discrimination After Reconstruction And Through the Mid-Twentieth Century.

The hope that Reconstruction would finally unshackle African Americans and place them on an equal social, political, and economic footing soon faded. After barely a decade of Reconstruction, the federal government withdrew from its role *12 of protecting the newly-freed blacks. The Hayes-Tilden Compromise of 1877 resulted in the withdrawal of Union troops from the South and removed “the last military obstacle to the reestablishment of white supremacy there.” Southern whites - determined to reassert their dominance over blacks - launched massive campaigns of intimidation and terror throughout the South.

Early efforts to secure white hegemony focused on depriving *13 blacks of their right to vote. With the acquiescence of the national government, blacks were defrauded and intimidated at the polls. Berry, supra n.2, at 81-83. State legislatures adopted voting requirements, such as poll taxes and literacy tests, which had the purpose and effect of further disenfranchising blacks. The advent of the all-white Democratic primary in southern states dominated by the Democratic party guaranteed white supremacy by completely denying blacks political participation. As black disenfranchisement spread throughout the South, blacks' modest political gains were quickly eroded. Blacks were completely deprived of any voice in federal, state, or local government. The effects of the denial of black suffrage were far-reaching. Blacks lacked the power to vote out governments that imposed rigid segregation and that denied them government resources.

Decisions by this Court foreshadowed the government's massive retreat from the guarantees of the Fourteenth Amendment and further betrayed black aspirations of equality. See, e.g., James v. Bowman, 190 U.S. 127 (1903); *14 United States v. Harris, 106 U.S. 629 (1883); United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S. 542 (1875); Blyew v. United States, 80 U.S. 581 (1872). Most notorious among these decisions were The Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). In The Civil Rights Cases, the Court declared unconstitutional the Civil Rights Act of 1875 which had outlawed racial segregation in public accommodations. The opinion, authored by Justice Bradley, concluded that the “private wrong” of racial discrimination in public accommodations was beyond the reach of the Fourteenth Amendment. The illogic of Bradley's opinion could not be more apparent; after two centuries of the systemic oppression and subjugation of blacks in which state and federal resources were used to perpetuate the institution of slavery, this Court determined that a remedy for such deeply rooted injustice was beyond its power. Bradley's opinion fully illustrates the extent to which this Court blinded itself to the exceedingly sorry plight of the newly-freed blacks:

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected.

109 U.S. at 25. In Plessy v. Ferguson this Court placed its imprimatur on the “separate but equal” doctrine and enshrined a government-sanctioned racial caste structure for another two generations. 163 U.S. 537 (1896). Disregarding the history and purpose of the Fourteenth Amendment and this country's entrenched racial hierarchy, this Court concluded:

[A] statute which implies merely a legal distinction between the white and colored races - a distinction which is founded *15 in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color - has no tendency to destroy the legal equality of the two races.

163 U.S. at 543. Plessy marked the formal demise of the government's short-lived efforts to right deeply rooted wrongs against blacks. It would not be until Brown v. Board of Education, decided nearly sixty years and two generations later, that this Court would take a decisive step to rectify this country's long legacy of racial persecution.

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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