Original Sins, Continuing Wrongs: Equality, Democracy, and Supremacy in the U.S. Under Judicial Review

Chapter 2
Original Sins, Continuing Wrongs: Equality, Democracy, and Supremacy in the U.S. Under Judicial Review

Francisco Valdes

All men are created equal …

—Declaration of Independence, 1776

[The black man possesses] no rights which the white man [is] bound to recognize.

—Dred Scott v. Sandford, 1857


This foundational contradiction has framed and informed mainstream notions and politics of in/equality in U.S. law and society from before their beginning, and up to this very moment. American history—and current events—have oscillated and lurched across the spectrum of sociolegal possibilities bookended by these two poles. Judges—and other politicians—have been, and are, no exception. Indeed, in the United States, equality’s fate seems structurally destined always to fall into the hands of the judges. In conformance with the politics of identity prevalent in the U.S. since before the Republic’s founding, judicial review on the whole, and with a few hugely notable exceptions, has consigned equality to near oblivion. The resulting constellation of doctrinal fictions and other inventions forms the substance of constitutional equality’s vexed fate under the rule of judicial review. The social and legal result has been an obstruction of justice.

More than a century ago, writing one of the earliest authoritative studies of the public legislative history leading up to the Fourteenth Amendment specifically, the then-Librarian of Congress began his detailed, comprehensive account with these prefatory words:

The Supreme Court of the United States, [in its decisions in the Slaughter House Cases (1873), Maxwell v. Dow (1900) and the Civil Rights Cases (1883)] have given to the Fourteenth Amendment a meaning quite different from that which many of those who participated in its drafting and ratification intended it to have.1

As the twentieth century continued to unfold, the dismay already evident over this early judicial interventionism on behalf of legal racial supremacy continued and grew. Nearly a half-century later, in 1951, on the eve of a second national attempt at Reconstruction, a leading academic legal historian similarly observed:

Is it anything less than a colossal historic irony that, after three times adopting a program to nationalize the natural rights of men—twice by solemn constitutional amendment (the Thirteenth and Fourteenth) and once by legislative enactment over a presidential veto (the Civil Rights Act of 1875)—(and) each time over the bitter criticism that it would destroy the federal system, the nation should then—particularly through the instrumentality of the Supreme Court—without benefit of formal repeal, adopt the objections and reject the program by refusal to carry it out?2

Equality’s colossally ironic fate in the U.S. under judicial review continues to this very day, as shaped principally by the cultural, economic and legal politics of White supremacy and its needs or wants since before this nation-state’s formal constitution.

The centrality of race, and specifically the racisms of White supremacy, in the fate of equality in the U.S. is no accident, nor mystery. Race has served as the U.S. equality paradigm because the safety and prosperity of White supremacy and its racial structuring of economically exploitative social class have been the paramount interests dictating the contours of liberty and democracy, as well as equality, since before the beginning. Racial equality politics have catalyzed tectonic changes in the political landscape of the entire country, and continue to hold sway over the country’s fortunes and destiny. Moreover, as U.S. history illustrates time and again, racialized law and policy have been primary instruments for the establishment and enforcement of the social, cultural, economic, and other identitarian supremacies favored by the original ruling classes of U.S. settler society. Law—whether explicitly “racial” or not—therefore plays a consistently featured role in the re/production U.S. injustice and inequality.3

Understanding this historical coding, and its contemporary correlations or connotations, is not only a prerequisite to following the judicial politics of inequality as practiced today and presented below; it is particularly important because many Americans still believe, mistakenly, that judicial review is a primary or principal bulwark of constitutional rights protecting both (or either) equality and democracy. To be sure, the decade between the mid-1860s and mid-1870s during Reconstruction shows that federal judicial review can be a positive instrument in the implementation of pro-equality policy.4 And of course a second pro-equality judicial interregnum also took hold a century later. Indeed, it is the iconic quality of the cases of the second Reconstruction—principally, Brown v. Board of Education—that explains much of the contemporary misperceptions that valorize federal judicial review as a bedrock guarantor of constitutional commitments to equality.

Some of the opinions issued during the 140 years between the fateful term of 1873 and the current 2013 term, which jointly have produced numerous anti-equality doctrines and results, are more transparently ideological than others. In some, dispassionate observers may find arguable merit, as defined by the norms and concerns of mainstream U.S. legal culture, whereas in others they might find very little, or none at all. In isolation, one or another of these judicial moves may be deemed minimally problematic, its pernicious consequences limited. But, as a whole, the still-accumulating effects of these opinions have been a racially ideological calibration of “liberty” and an anti-democratic subversion of “equality.”

Overall, historical experience before Brown, as well as since, therefore should disabuse living Americans of any belief that judicial protection of equality or democracy is a consistent front line of U.S. constitutionalism. Instead, history teaches that reliance on judicial review for equal protection of the laws can invite a false and dangerous complacency; it invites a continual misdirection of reformatory energies. A critical understanding of judicial review’s equality record is a predicate for effective equality strategies going forward—strategies that appreciate the limits of law, and of adjudication in particular, and that include, but do not exaggerate, the role or potential of federal litigation and the judicial review power in ongoing struggles over constitutional equality (and democracy) in U.S. law and society over the course of a new millennium.

This chapter outlines a critical history of equal protection under judicial review, the paradigmatic exemplar in U.S. nationhood of in/equality as jurisprudence. Highly abbreviated out of necessity, the main aim is to contextualize contemporary comprehension of the conceptual, doctrinal, and social quagmires resulting from this particular legal history in the search for reconstructive ways forward. In the longer term, the aim of this critically raced legal history is to contribute key antisubordination knowledge toward a final vindication of equal protection and substantive equality in the United States within, but also beyond, race cases.

“States’ Rights” and Equality: The Racial State and the State of Liberty

Reflecting the intricacy of founding formational politics, equality as a legal concept is both absent and omnipresent in American self-conception. Never mentioned in the text of the original Constitution by resort to repeated euphemism, the interrelated politics of slavery, liberty, and representation nonetheless were on everyone’s mind at Independence Hall in Philadelphia. Indeed, the entire constitutional calculation at that time was to structure those politics for the future. For better or worse, it has and still does.

As is well known but rarely emphasized, in the U.S. the scope and reach of equality has always depended on the threshold act of defining the polity; put simply, those originally excluded were rendered marginal or even extraneous to the early formal development of equality as law. These original acts of constitutional exclusion and inequality undergirded the antebellum system of U.S. federalism with inter-locking structures of identity, property, and representation.5 But within the polity as defined at any given moment, the idea of “freedom” or “liberty” entailed the notion of structurally equal liberties and freedoms; in the language of the common law, these were the “privileges and immunities” vested in polity members and “protected” equally for entitled members by “due process” (and other vested “rights”) of the sovereign’s law. Before and since 1776, this was the background legal normativity, rooted in still-formative common law traditions, that framed original conceptions and early developments in U.S. nation-building,6 and which the ending of the Civil War, and its postbellum codification of equal protection, was “intended” to reconfigure in limited yet fundamental ways. Thus, in practice “liberty” and “equality” were/are flipsides of the same normative coin; in this political framework, but only within the polity, equality of rights was/is the condition for (equal) liberty.

Nonetheless, in defining the polity to include only them, and people most like them, the original (White, male, propertied) settlers of the United States implanted a cancerous racism into the constitutional heritage, legal culture, and socio-economic architecture of the new nation-state. The contradiction of slavery in the name of liberty, designed to justify racial enslavement in the land of the free, originated in the naked politics of constitutional compromises—America’s original sins. Afterwards, it was justified by stacking increasingly flimsy and self-serving rationalizations one upon another, oftentimes in the form of judicial opinions that purported to settle with principled reasoning the polarizing politics of in/equality empowered by those sins—America’s continuing wrongs. Exhibiting the singular force of America’s racial politics, judges on the whole have been collusive or worse in the still-stunted story of equality as a democratic and constitutional value in everyday U.S. life.

On the whole, and with some crucial reconstructive exceptions, U.S. judges have made an art of using common law techniques and tools to truncate and negate equality mandates enacted and re-enacted by local or national democratic majorities both before and after the Civil War amendments. Both before and after, “federalism” has provided the broad rubric for the dogged pursuit and defense of a mighty thing we aptly might call a one-way “Right to Discriminate” in favor of elites within the original exclusionary polity as an elemental aspect of American liberty. In the antebellum years, this mighty right was couched in the rhetoric of “states’ rights”—a regime where “liberty” included the right to capture, exploit, injure, and enslave others, so long as they were Black. After the war, it remained couched in “states’ rights”—this time, in the form of state or local “Black Codes” that tracked the substance and structure of the old “Slave Codes” prohibited by the Civil War amendments but blessed by the judges in the half century after the War through magical doctrinal maneuvers. Today, it still remains couched in the rhetoric of “states’ rights”—now oftentimes cast juridically in the form of strategic colorblindness and a “new” federalism that remains faithful to the normatively antidemocratic, supremacist universe of the old South.

Under the terms of antebellum federalism and states’ rights established effectively by judicial opinion in Barron v. Baltimore (1833),7 local identity groups, frequently minorities, who had self-constituted the exclusionary local polity, now could act officially and constitutionally, even democratically, within the context of the Union, as the town or state, to do whatever they liked to normalize what was, in effect, a one-way “Right to Discriminate” vested originally, and ideologically, in some identities for sociolegal deployments against others.8

Though nowhere named or vested explicitly in the Constitution, this public and private Right to Discriminate at the very heart of the neocolonial racial order in the United States was brought into existence by the carefully calibrated interplay of at least four legal and constitutional actions.

The first was the structural and systemic set of compromises in Philadelphia resulting in a federal framework that, in conjunction with the specific compromises on slavery itself, tied policy to the protection of slavery at the national level. The second was the Slave Codes enacted by individual states, exploiting fully the privileges of federal union to leverage local politics into national policy, which made prey of Blacks, rendering them vulnerable to all kinds of injury with impunity; no legal recourse for abuse or injury existed precisely because of the specific disabilities imposed by the Slave Codes on victims of White supremacist exploitation, abuse, and harassment. The third was the combined and coordinated complex of public/private violence that characterized local governance across slave jurisdictions, and specifically the enforcement of racial slavery, in the antebellum period, which legalized racial domestic terrorism as state and local law enforcement policy. And finally, the fourth factor has been the judicial opinions which have shielded and fueled all of the above. As recounted below, unpacking and dismantling this formidable sociolegal edifice has proven elusive despite two momentous, sustained efforts to reconstruct original arrangements and emplace a plausible semblance of universal equality of individual liberty.

These reformatory cycles frequently are described as the “first” and “second” efforts to reconstruct the original constitutional framework for American federalism, which had been significantly skewed in 1787–89 in favor of political and constitutional protection of racial slavery as the price of ratification and nationhood. Ever since those original, sinful compromises, the general politics of federalism and nationhood can be tracked by the particular politics of protecting racial slavery and White supremacy. Whether explicitly or in code, successors-in-interest to original interests have recycled the same patterns, techniques, and rhetorics left unresolved in Philadelphia to sustain original colonial inequalities despite the passage of time and the asserted march of social and legal progress.9

Within this historical narrative, “equal protection” in the Fourteenth Amendment was literally and conceptually designed to disestablish White supremacy by constitutional mandate, and to shift the official “protection” of the law from the one-way Right to Discriminate toward the equally venerable common law ideal of universal equal treatment within the polity, through two key provisions of that Amendment. First, by expanding the polity, thus expanding the number of those vested with common law and other privileges and immunities. Second, by making the right to law’s equal protection of those privileges and immunities express, thereby making the latter right—equal protection—explicit as a substantive individual right for the first time in the constitutional text. Underscoring both of these provisions is the choice to extend the right of equalized protection to all “persons” rather than just citizens. As widely well understood at the time, this shift unambiguously threatened the political and economic hegemony of whiteness in the U.S. because legal protection for one-way racist discrimination—as an indispensable element of White elites’ “liberty”—was the very bedrock of White privilege, power, and property. Yet this was the overarching, basic, and original intent of the three constitutional amendments, and the multiple federal comprehensive civil rights statutes enacted to enforce them, in the decade between 1865 and 1875.

Of course, from the founding of the United States to the present, this original Right to Discriminate as social practice or legal rule clearly never was limited to race, even though in the United States it was contoured chiefly around White-over-Black racial agendas. Conspicuously, at the moment of founding, women, Indians, and selected religious traditions also were denied, by state law, the equal protection of its laws. Moreover, at that time, and in line with transplanted common law ideas, classes even formally within the polity also could be created to accord them lesser rights, so long as those within “separate” classes enjoyed “equal” rights. The “different” regimes of identity-related oppressions constructed for these overlapping groups shared many important characteristics, yet they were not the same. Unlike hereditary racialized enslavement, the oppression of women, Indians, and religious minorities came to the United States with ready-made rationalizations and much-entrenched normalization refined by centuries of European endeavor and acculturation.

In the context of a new nation-state committed to the claim that “all men are created equal,” the racialized hereditary enslavement specifically of Blacks qua Blacks, with no pre-existing blueprint in Anglo-Saxon legal tradition, required a justifying normative construct that rested on the conjunction of an old institution—slavery—and a relatively new construction: race.10 The construction of antebellum federalism thus produced a legal, social, and political conflation of the two, succinctly expressed by judges in the form of law in an 1835 opinion from South Carolina: “it is hardly necessary to say that a slave cannot be a white man.”11 This thus became the formula for the institutionalization of hereditary racial subordination across much of the United States since its constitution.

Not only was essentialized race-based enslavement peculiarly at the very heart of national conception, but other profoundly racialized and racializing acts of lawmaking during the founding and formative years of the country helped to set the stage for the subsequent preservation of the status quo in strategic yet structural ways. Notably, these acts included the limitation on naturalized citizenship to “white” persons, enacted by the very first Congress and signed into law by George Washington as the Naturalization and Immigration Act of 1790. Later, this foundational restriction was reiterated in various statutory forms by successive generations of legislators until 1952, ensuring that, during the bulk of relevant history, American nation-building would be mostly White by brute force of law.

The ongoing reiterations of race-based slavery ranging from Black Codes, Jim Crow, and segregation to, today, the Orwellian logic of “reverse discrimination” provide key, paradigmatic, long-term examples of law’s constitutional entanglement with race and, in particular, White supremacy in uniquely profound ways. The Chinese exclusion laws, Japanese internment, and dispossession laws, and similar acts of legal subordination designed to create and enforce racial hierarchy, further deepen and expand the history of racial ideology codified as law in incrementally coalescing these United States as a consciously and intentionally White nation-state. The dispossession and destruction of indigenous individuals and nations in explicitly racial terms is yet another example of this long and unique history. And the manipulation and exploitation of Latina/o communities or diasporas for cheap labor and other extractive, subjugating aims also is equally a part of the sorry but continuing history of White-identified Eurocentric racisms as central to the establishment and administration of the U.S. as a functional nation-state. Even the contemporary expression of this historical, traditional, neocolonial power structure to exert perpetual control over this nation-state—the culture wars discussed briefly below—are identity/color-centric, and waged still chiefly through the tools and techniques of law and policy, still mostly in the pursuit of original supremacies, and still coded typically with generalized invocations of liberty, democracy, and federalism.

Thus, whether focused on Black people, yellow people, red people, brown people, or other nonwhite people, the emergent neocolonial power structure of this country, generally transplanted to the U.S. from Europe, and mostly from England specifically, has been from its inception obsessively conscious of its own ethno-racial identity, and has used its original control over law relentlessly to ensure its racial supremacy politically, culturally, and economically. Beginning with hereditary racial enslavement and the very first act of exclusion by Congress on immigration and naturalization, this pervasive racialism has policed the polity, demographics, and borders of the nation-state in resolutely racialized and re-racializing ways to build, law by law, and brick by brick, the edifice of white supremacy as integral to the sense of society stitching together the new nation-state. Consequently, predictably unsurprisingly, whiteness today retains its power to dominate both society and state.

Through these repeated acts of de jure racialization to cohere a sense of both nation and state, the White elites and establishment of this country have fostered the quintessential racial state, which “employ[s] physical force, violence, coercion, manipulation, deceit, cajoling, incentives, law(s), taxes, penalties, surveillance, military force, repressive apparatuses, ideological mechanisms, and media—in short, all the means at a state’s disposal—ultimately to the ends of racial rule … which is to say, to the ends of reproducing the racial order, and so representing for the most part the interest of the racial ruling class.”12 A more fitting description of the founding, origins, and development of the United States under the rule of law—and, more specifically, of the articulation of “equal protection” under the rule of judicial review—is difficult to imagine.

In this land assertedly of law and not men, forming itself under a pre-existing common law framework, it fell upon judges to explain and justify original sins of White supremacy, to fill the specific, gigantic gap allowing for racialized enslavement, exclusion, or subordination in the constitutional and legal foundations of a professedly freedom-loving country. Initially, therefore, their challenge was to explain, ameliorate, and navigate the gnawing effects of that original surrender. Later, their constitutional duty was to give full force and effect to the pro-equality reforms of two Reconstructions. Ultimately, their role must be to help the country move beyond the original confines of 1780s identity politics to help a multi-racial society with an increasingly nonwhite population engage with the unsustainability of its founding, existential contradictions. Instead, their chosen mission has been, and remains, the crafting and reinforcement of selective and formalistic boundaries around equality, only some of which can be explored here, that bolster and preserve original identitarian arrangements despite a Constitution dedicated to rights, privileges, and immunities for all. The result has been judicial negation of democratic reconstructive efforts to abolish the racial state and its constitutional underpinnings in the United States. The result, for the moment, is a neo-racial state.

Structural Equality and Minority Rule: Polity, Identity, Liberty and Exclusion

The customs and rules of the common law system created the cultural and political context not only for the development of law in the United States generally, but also specifically for the articulation of equality and related ideas by the settler elites who spearheaded the American Revolution and took control of the new nation-state upon independence from England. During this time, various conceptions of natural law and rights prevailed, even if they eluded fixed specificity or definition. Terms like “liberty” as well as “equality” were used frequently in the service of various political arguments, including in the Declaration of Independence, as well as in many of the subsequent political debates and judicial opinions interpreting constitutional meanings. This fluid universe of natural law and rights was the common normative well from which all sides in the U.S. political structure drew to reshape those concepts as applied in specific contexts under U.S. law.13 This legacy produced the conceptual strands and tensions from which the framers of the Constitution proceeded, both in the late-1700s and in the mid-1800s.14

Notably, in the U.S. Declaration of Independence, “liberty and “equality” are textually, normatively, and functionally intertwined: “all men are created equal … with certain inalienable rights … life, liberty and the pursuit of happiness.” The subsequent racialized severing of equality from liberty is, in effect, the history of constitutional in/equality. Thomas Paine captured this growing contradiction of slavery in the name of liberty in his first published article, asking original Americans, “with what consistency, or decency, they complain so loudly of attempts to enslave them, while they hold so many hundred thousands in slavery; and annually enslave many more, without any pretense of authority or claim upon them.”15 Awareness of this fundamental and untenable contradiction was so widespread that founding members of the new nation-state generally considered this peculiar institution to be their “communal sin.”16 And indeed, both original sins and continuing wrongs associated with social inequality in the U.S. have been communal in nature—inflicted through both public and private combinations of institutionalized racial power. Judges have been central to, but not alone in, this historic and continuing obstruction of justice.

Given the identity politics of those times, this fundamentally conflicted dynamic required studied deflections. The uniquely existential contradiction of racial slavery in the state of liberty was the very compromise allowing political union for Whites. Thus, instead of a head-on articulation of a substantive individual equality right that might preclude that compromise, the structural elements of original equality under the United States Constitution are expressed through the combination of various textual provisions said to create a “system” of “checks and balances” that include the very “separation of powers” within the government as a whole. This initial version of “equality” aimed to structure and channel the politics of representative democracy in “the compound republic,” but the anomalous effect was to place collectives—“factions”—at the center of society in the new land of emphatically individualized rights and liberties. This constitutional infrastructure, as a whole, thus formed a kind of structural equality, which was limited in various ways to the identity-based inner circle of the new society—the enfranchised polity—because it relied on a basic sense of political equality in the institutional workings of the new system to induce and maintain proper social order.

Limited by force of law to those individuals and factions included in the polity of a given state, these structural elements of original commitments to this kind of equality are exemplified by the one textual reference in the original constitutional text, providing that all constituent states are entitled to equal representation in the national senate. In other words, the structural elements of original in/equality effectively aimed to create a “level” playing field within a privileged polity for factual jockeying over powers’ spoils; structural equality in the original Constitution sought to ensure roughly equalized access to political power within the original polity alone, and exclusively, while relegating by law other members of society to disposable and/or exploitable populations. More starkly, the structural (as well as substantive) components of this original, exclusionary in/equality are captured in the numerous, pivotal, and well-documented constitutional compromises, which never once mention race or slavery but which were at the heart of the sanitized yet compromised Constitution that set the stage for the politics of in/equality that overshadowed the formative years of the new nation-state.17

Importantly to the politics of structural equality and White supremacy in the establishment of a racial state in the new country, Philadelphia’s compromises effectively and dramatically had inflated the political and economic might of slaver states and forces within the rules and mechanics of federal union. But the institutionalization and perpetration in the United States of hereditary racial enslavement, and later of Jim Crow apartheid, through local and state law was never a cleanly democratic or majoritarian enterprise. On the contrary, typically, local White minorities outnumbered by local Black populations but possessing a monopoly over physical violence, and hence over local government, imposed racial enslavement through minority tyranny.18

Thus, although today the three-fifths Clause of the original Constitution is decried as an affront to the human dignity of slaves and Blacks, it was much more than that. Its original calculations and multiplying dynamics provide a microcosm of antebellum federalism and explain why it would, but also could not, endure for long. It puts on display the predicament of structural in/equality in a racial state. It exposes how structural in/equality was customized to effectuate yet mask perpetual minority rule in the name both of liberty and democracy. It helps also to explain why strong remnants of the racial state endure even in an assertedly post-racial era.19

More particularly, this single clause gave to slavers representation both in the new Congress and in the Electoral College that was inflated by three-fifths of the population they had enslaved and excluded from the polity. This permanent representational advantage of the three-fifths compromise not only elevated the standing of slavers in the original Congress by a some 20 seats more than their actual voting population justified, but also granted Southern White slaver elites a permanent structural platform for national domination of constitutional politics, and for protection specifically of their ever-expanding Right to Discriminate.20

This artificial hyperinflation of slaver power through the architecture of federal authority, and of “federalism” itself, constituted a permanent structural skew in the constitution of American democracy converting local racial minorities consisting of White elites into a controlling political bloc at the national level able to take control both of the Congress (through inflated representation), the executive (through correspondingly inflated representation in the Electoral College), and even the Supreme Court itself (through presidential control of judicial nominations). In these crucial formative times, slavers frequently controlled them all. In addition to controlling the sovereignty of their states, slavers and their allies thereby also controlled the process of federal lawmaking, as well as the subsequent processes of interpretation and enforcement.21

This much can be seen in the composition of the bench deciding the 1857 Dred Scott case, perhaps the exemplar constitutional opinion of the racial state under antebellum federalism, which then consisted entirely of pro-slavery appointees except for two: Benjamin Curtis and John McLean.22 As illustrated by that infamous opinion and its progeny, this nearly hegemonic grip was reinforced in the antebellum years, as well as afterward, by ever-more-political judicial doctrines, fictions, and other devices constructed by successive generations of White appointees to the Supreme Court precisely through the constitutionalized workings of this slaver political hijacking to engineer both in/equality and “democracy” for the long term. These mutually reinforcing political dynamics and jurisprudential constructions became, during the antebellum years, the zealous guardians of the White-only Right to Discriminate in the name of liberty and democracy through the strategically particularized configuration of federal constitutionalism. Later, and ultimately, these and similar antebellum artifacts of structural in/equality were the institutionalized devices that the Civil War and reconstructed federalism were designed to reform, specifically yet fundamentally, in the mid-to-late 1800s.

Antebellum Federalism and the Right to Discriminate: Structural Equality’s “Protection”

Because structural equality was limited to the members of a racially (and sexually and otherwise) exclusionary polity, this antebellum arrangement effectively erected an identity-based, one-way Right to Discriminate against those excluded from the polity, or subordinated within it by the traditions, customs, or logic of the common law inheritance, as modified by settler elites for their own personal and factional advantage and material convenience. Like all rules and rights, this one-way Right to Discriminate could be, and was, expressed in many different ways. For instance, both the Slave Codes before the Civil War and the Black Codes after it illustrate two then-common ways of imposing group-wide legal subordination—disabling classes of people from the legal capacity to make and enforce contracts, or disqualifying classes of people from instituting lawsuits or testifying in them; in effect, Black Codes were designed to reduce Black classes of persons to White prey at virtually the same levels of personal, social, and economic vulnerability imposed previously by antebellum slavery—except for the technical distinction of formal enslavement itself.

Paradigmatic of supremacist identitarian sociolegal regimes, the power of racial elites, whether majoritarian or minoritarian, to use their control of state or local sovereignties to create and maintain a sweeping social reality of systemic and institutionalized caste through “class legislation” or “special laws” was crisply noted, and heartily endorsed, by Roger Taney in his Dred Scott opinion. Writing for a bare five-judge majority in that case, he explained directly that recognition of Black citizenship was constitutionally impermissible in the U.S. because doing so would:

… exempt them from the operation of the special laws [and give them the right] … to go where they pleased at every hour of the day of night without molestation, unless they committed some violation of law for which a white man would be punished … the full liberty of speech in public and in private upon all subjects upon which [the state’s] own citizens might speak.23

In other words, the results of the adjudication were explained—are explicable—chiefly by their perceived operational necessity to White supremacy in a racial state.

Underscoring the importance of the racially exclusionary polity at the state or local level as the lynchpin of antebellum federalism and structural in/equality, he continued:

If persons of the African race are citizens of a state, and of the United States, they would be entitled to all of these privileges and immunities in every state, and the state could not restrict them: for they would hold those privileges and immunities under the paramount authority of the federal government, and its courts would be bound to maintain and enforce them, the Constitution and loss of the state to the contrary notwithstanding.24

This basic and coherent framing of constitutional equality, which the Dred Scott judged then promptly rejected in these very terms before the South lost the Civil War, was precisely the conception of “equal protection” for the “privileges and immunities” of all “persons” that the wording of the Fourteenth Amendment was designed specifically to secure after the North had won just a few years later. Speaking on the floor of the Senate in 1865, leading proponent Jacob M. Howard explained that the Fourteenth Amendment would abolish “all class legislation in the states and [do] away with the injustice of subjecting one caste of persons to a code not applicable to another.”25 For this reason the framers and advocates of the Fourteenth Amendment explicitly granted “equal protection of the laws” to all “persons” rather than citizens, even while expanding the polity through the granting of birthright citizenship at the same time; the Fourteenth Amendment and related lawmaking aimed in textual, conceptual, and functional terms to terminate entirely the Right to Discriminate, first, by extending the polity universally based on birth, thereby invalidating the exclusion of many from the polity under state laws blessed by the judges in Scott, and, second, by choosing to extend the “equal protection of the laws” not only to the expanded polity of all “citizens” but to all “persons” within the federal jurisdiction of the United States. The point was to withdraw law’s “protection” from discrimination, and bestow it on equality, as a matter of constitutional mandate and policy. A more expansive extension of the common law equality principle hitherto limited to racial elites could not be framed in English.

Formal Democracy, Substantive Equality: National Reconstruction and “Equal” Protection

As in the original Constitutional Convention held in Philadelphia during summer 1787, calculated compromise was very much part of the drafting and ratification processes underlying each of the post-Civil War amendments, as well as the multiple major statutes based on them enacted through 1875. At each step, strategic rhetorical jockeying by skeptics and opponents repeatedly attempted to bog proponents down in the details of politically complicated scenarios calculated to chip away at support for the equality principle. At the same time, these debates occasioned multiple reiterations of core meanings and original intentions. Despite thickness and complexity, however, the record establishes a reasonably discernible central purpose articulated repeatedly by proponents of these reforms, who actually prevailed legislatively, as well as the opponents of those reforms, who ultimately prevailed judicially; moreover, their decade-long series of pro-equality measures add up to a reasonably discernable sense of policy and purpose. As summarized below, the postbellum reforms of the Reconstruction proceeded from a specific recognition that White power, especially in the South, would seek to “vex and oppress” new polity members, which prompted an array of constitutional and statutory bulwarks to protect equality from that danger.

On the day it convened, December 5, 1865, the Thirty-ninth Congress began working on the wording of the Fourteenth Amendment, generating at least 10 versions of the same basic concept. The recurrent idea, appearing in all their drafts, is that of “equal protection.”26 This baseline point is illustrated by the warnings of Senator Samuel Randall, opposing the Fourteenth Amendment: “The first section proposes to make an equality in every respect between the two races, notwithstanding the policy of discrimination which has hitherto been exclusively exercised by the States.”27 This “policy of discrimination” at the state level provided formal legal protection for the private Right to Discriminate, and federal lawmakers like Randall plainly saw that undoing this combination of public policy and private rights in favor of legal discrimination and factional domination at the local or state level was the bottom-line purpose of the postbellum reforms constituting the Reconstruction.

Importantly, “Congress heard testimony from 125 witnesses, 89 of which confirmed the general hostility and frequent cruelty toward the Negro [that] characterized the attitude of Southern whites,” and thus put into the record the social and legal conditions licensing the combination of private and public injury to Blacks. Consequently, “there can be little doubt not only that the members of the committee were aware of these individual violations but that the majority of the committee took pains to get them into the record—an odd procedure, to say the least, if they were not to be comprehended within the amendment which the committee was then perfecting.”28 The record makes abundantly clear that the framers of this constitutional Reconstruction knew from personal experience that these interlocking systems of social and legal subordination had been engineered incrementally by ruling racial factions, and sometimes even as minorities, across the states of the Confederacy with an original monopoly over violence, both public and private; since 1789, slaver elites had consolidated sweeping combinations of private and public coercion ranging from birth to death, tying identity to property and, ultimately, to destiny.29

Emphatically repudiating cramped or formalistic views of “equal protection” at the moment of its origin, leading architects and advocates of numerous reconstructive equality enactments made it ever-more clear that “equal protection” denoted a socially substantive state of affairs structurally and materially distinct from original and antebellum compromises. Made textually express for the first time in the Fourteenth Amendment itself, equality was to be a substantive individual constitutional right of all persons, secured and supplied by the positive protection of the law against public or private invasion, and not an abstracted theory of governmental and social structure, sapped by legal fictions that defied on-the-record social experience with structural in/equality. Thus, during the drafting process, the principal “father” of the Fourteenth Amendment specifically, John Bingham, phrased the meaning of “protection” explicitly this way:

Suppose any person has acquired property not contrary to the laws of the state but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned.30

Under this original, framing scenario, state inaction in the face of private injury would plainly constitute a denial of “equal protection.” This hypothetical, among many others, illustrated the positive character of “protection”—the public protection of private enjoyment of private rights from all invasions, whether public or private. Recalling the sociolegal circumstances addressed by this constitutional policymaking helps to make complete sense of these particular, and expansive, legislative choices.

Given the extremely exclusionary antebellum polity, state and local “law” often enough was but an extension of minority elite preferences imposed on disenfranchised, disempowered majorities from above in the name of representative democracy. Never a majoritarian system or institution, slavers and slavery always relied on antidemocratic means to have their way; at that time, the very same people in control of the state legislatures oftentimes also were in control of the mob on the street, and of domestic terror groups like the Ku Klux Klan (KKK). When these persons acted, they sometimes wore a hood and other times a badge. Normatively and functionally, the formal distinction between “private” and “public” local action in the context of antebellum White supremacy was extremely unstable, and reliance on it foreseeably would help license supremacist politics and racist systems of inter-state subordination. Thus, it was clear to the framers and proponents of these structural legal reforms that their enactments must restrict the use of state action and inaction to help impose or maintain private bigotry socially or legally: their “speeches indicate that the Equal Protection Clause is primarily a reference to the obligation of government to supply protection to men in their natural rights, and secondarily is a requirement that such protection, when supplied, must be equal to all.”31

Therefore, postbellum notions of a complete displacement by the national government of state or local sovereignties was one of the false arguments activated by equality opponents to stir up fears, even as Framers and advocates repeatedly disclaimed any such purpose; certainly, reformers did not want to displace local power for themselves and communities, and knew that such a proposition would not sell publicly in any political quarter. They intended a revolution constitutionally, but one tailored to the erasure of structural racial subordination and establishment of substantive racial equality. For them, the first step was to withdraw formal and actual state solicitude for the Right to Discriminate completely, and instead shift the active protection of the law decisively in favor of the right to legal protection against inequality within an expanded polity. To this end, each of the three Civil War amendments, and the multiple major statutes enacted to enforce them, aimed to accomplish basically the same purpose, but with ever-greater specificity and force to overcome the massive resistance that each encountered, both socially and politically; the essentially constant goals motivating original reconstructive intentions focused on the withdrawal of all support, comfort, shelter, or legitimacy for the Right to Discriminate, and certainly no drafter ever declared that positive state discrimination was the only way possible for a state to “deny” to a “person” within the U.S. “the equal protection of the laws.” All of this constricting surplusage was added years later by the judges, as discussed below.

To the Reconstruction’s framers, however, “equal protection” secured the “liberty” of all members of an expanded polity to participate fully and peacefully in public life as economic, political, and social actors. Original intentions did not envision proactive racial integration or economic redistribution outright, but rather the affirmative ending of White-imposed isolation, subjugation, exploitation, domination, and stigmatization of Blacks in particular, but of all “persons” textually: “We now know that the equal protection clause was designed to invoke upon the states a positive duty to supply protection to all persons in the enjoyment of their natural and inalienable rights—especially life, liberty and property—and to do so equally.”32 Perhaps, in the end, the best evidence pointing to the original framers’ intentions regarding the key provisions of the three constitutional amendments passed within a decade after the Civil War, starting in 1865, is found in the Congressional initiatives enacted by these very same lawmakers concurrently, which were specifically and explicitly intended to further these constitutional reforms.

Between 1865–75, a unique decade of interrelated constitutional and federal statutory lawmaking began with the passage of the Thirteenth Amendment prohibiting slavery anywhere in the United States, except as punishment for crime, and thus overturning all of the constitutional deals and accommodations embedded in the text of the original Constitution and subsequent judicial opining. The following year, Congress enacted the Civil Rights Act of 1866 to implement the new amendment by protecting the privileges and immunities of “freedmen” as previously recognized in the common law or legislatively, and as had been targeted for denial by the Slave Codes and, increasingly, by the Black Codes. This statutory protection applied both to private and public action, reflecting again the widespread concern for “private” mob violence that formed part of the ongoing resistance to the results of the Civil War. This initial postbellum amendment, coupled with this landmark enforcement bill, not only abolished slavery (except for criminal punishment) but also federalized the protection of individual civil rights nationwide for the first time—and specifically to guard all persons within the U.S. against anti-equality abuse professedly authorized by color of local law, whether purportedly democratic or not.

That same year, moreover, Congress also enacted the Slave Kidnapping Act of 1866 to protect freedmen from the established fugitive industry financed by slaver wealth and, within another year, also had enacted two additional statutes—the Peonage Act of 1867 and Judiciary Act of 1867—to further bolster the structure of federal legal protection for civil rights and enlist federal authority in the dismantling of the private-public complex fighting fiercely to preserve as much as possible their antebellum race-based privileges.33

These initial unprecedented reforms were opposed by claims that the 1866 Civil Rights Act could not be legislated under the Thirteenth Amendment, which opponents claimed applied narrowly, or strictly, only to slavery per se, and thus was unconstitutional. With massive resistance growing in the streets and public squares all across the Old Confederacy, reform leaders soon concluded that political prudence called for another amendment to re-enact the substance of the 1866 Act at a constitutional level. The next round of extraordinary legislative activity would fundamentally reform the antebellum social compact and include subordinated communities within its expanded scope and substance; after these reforms, “equal protection of the laws” would legally and constitutionally become “an integral part of the social compact-natural rights doctrine” derived from transplanted common law traditions.34

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