Now having said all this the fact is i
mentioned before this system could not
have existed without the acquiescence of
the rest of the country and that is
symbolized by the role of the Supreme
Court in the general retreat from
reconstruction one could go in I don't
have the time to give to go in detail to
all these supreme court cases there was
no one case that said ok reconstructions
over there were a series of cases over
30 years that little by little whittled
away at the Fourteenth Amendment the
Fifteenth Amendment and the general
principle of equal protection of the law
it started during Reconstruction itself
with what we call the slaughterhouse
cases which had to do with was actually
a case brought by white butchers in
Louisiana the reconstruction government
of Louisiana had established a monopoly
of slaughtering of slaughtering animals
are beyond the graph on public health
grounds that they they had to be
inspected a slow state and local
government operated slaughterhouse was
set up so that the quality of meat could
be inspected and everything but white
butchers who were not part of the
monopoly sued on the grounds that their
rights under the Fourteenth Amendment
particularly the right to free labor to
pursue a livelihood which is part of the
Liberty guaranteed under the Fourteenth
Amendment was being violated well this
one upstream court supreme court
rejected their their plea in some ways
it was a pro reconstruction decision in
that they were trying to uphold the
authority of a reconstruction era
government this was an interracial
reconstruction government that had
passed that law and the supreme court
upheld it against the challenge but in
doing so it basically said you know the
14th amendment was not really aimed at
changing the federal system most of the
rights we have are still under the state
come from state law there are only a few
law rights you get as a citizen of the
country rather than a citizen
it what was some of those not national
rights well the right to petition the
government
alright that's won the right to travel
on the high seas without pirates easing
you that wasn't of great interest to
most former slaves most rights was still
at the state level it said that that
didn't have a mature in effect at that
moment but as the Redeemers came into
power our this diminution of national
power i would have very serious effects
in 1875 came the case of us v
Cruickshank i mentioned this briefly
this arose out of the colfax massacre in
louisiana the only a couple of people
were indicted in the end and the
indictments for these murders were
overturned by the Supreme Court
basically emasculating the Ku Klux Klan
Act the federal government does not have
the right to go in and prosecute
ordinary crimes murder assault etc again
reducing the federal authority and
saying it's really up to the states that
made it very difficult for the federal
government to use its power to protect
these basic constitutional rights arm
1883 one of the worst decisions in
Supreme Court history the civil rights
cases which overturned the civil rights
law of 1875 which should try to demand
what you know what we've called equal
public rights that is non discrimination
in places of public accommodation of
restaurants hotels theaters etc there
the court in 821 decision said no the
Fourteenth Amendment only applies to
state action not private action state
action a law discriminating that's no
good under the Fourteenth Amendment but
private action by a business an
entrepreneur that's not covered under
the Fourteenth Amendment arm
this is a distinction no historian take
seriously public and private action
every private company that serves the
public in some ways as licensed or
regulated or makes use of public
facilities it would be very easy to
say know that you can it's not a
question of who you have in your home if
you open yourself up to public business
you've got to treat everybody equally
but the court was unwilling to go to go
that far
and then of course in 1896 plessy v
ferguson now pleasant Fergus has to the
law this is state action a law of
Louisiana mandating that railroad
companies have separate cars for black
and white passengers the challenge that
law was organized by the remnants of the
old free black leadership from in new
orleans from the reconstruction days
they call themselves the Citizens
Committee citizens very important
there's still tried to assert the equal
citizenship as i mentioned they hired
albion torquay a famous carpetbagger to
fight this case all the way to the
Supreme Court and of course the court
upheld the Louisiana law saying that
laws that separate the races are not a
violation of the Fourteenth Amendment
and it's guarantee of equal protection
so long as the facilities are separate
but equal right black to put in one car
whites in another what's the problem
here they're both being treated the same
whites can't go in the black car blacks
can't go in the white car there's no
discrimination and if the train at the
cause of both okay that's fine
so this open the door to the massive
implementation of segregation it by law
in every area of life in the south the
this was an eight to one decision the
lone dissenter john marshall Harlan was
a former slave owner from Kentucky and
Holland Holland descent one of the great
supreme court documents of our history
was a disquisition not about segregation
but about freedom and the Civil War and
what the emancipation of slavery mint
and his target was not separation but
racial domination in the majority
opinion Chief Justice white had talked
about
the dominant race he talked about the
fact that whites are the dominant race
and blacks basically have to just get
used to this
Harlan said this is a contradiction to
the principle of equality spawned by the
Civil War freedom meant the right to
participate equally and fully in
American society and that separation
segregation was a way of stigmatizing
one group of citizens as unfit to
associate with another group of citizens
and that in itself was a violation of
equality regardless of whether they're
trained cause were the same or not and a
century later Americans would look back
on segregation as a relic of an era of
crude prejudice but in fact at the time
it was widely supported by religious
leaders by scientific thinkers by
political figures as a way of avoiding
racial violence this was the alternative
to lynching if you keep people apart
they're not going to get into fights
anymore they're not going to dominate
each other physically it's actually a a
positive progressive or way of dealing
with race relations now of course the
facilities were never actually they were
separate but never equal this is a
famous juxtaposition of two schools in a
southern Virginia town in the early 20th
century 1920 this is the black school
and this is the white school you see the
white school is brick it's very nicely
built etc the black school is more of a
kind of a shack kind of thing arm but so
but segregation was now now became
implemented in everything you name it
public parks libraries shops hotels
prisons cemeteries there were laws
against black and white people riding
together in taxis there are laws against
black and white people playing chess
together all sorts of things in other
words
oh and the one final thing in 1898 two
years after this Williams V Mississippi
the court heard a challenge to the
mystic
the Constitution and it's
disenfranchisement provisions and the
statistics were clear no blacks voting
anymore in Mississippi this was outright
discrimination court said we can't deal
with that there is nothing on the face
of these measures that is racial the
Fifteenth Amendment bars discrimination
on the basis of race they don't mention
race poll taxes literacy no race how its
implemented at the local level is not
our problem Supreme Court can't be a
policeman going around making sure that
every voter registrar is acting in a
proper way so there is nothing on the
face of it that that makes this seem
like a violation of the Fifteenth
Amendment the point is that the Supreme
Court was intended by the founding
fathers to be the most conservative
branch of government that's why it's
there
that's why it has life terms they don't
have to get elected re-elected it's to
keep a lid on what Madison and the
others thought were the dangers of
excessive popular enthusiasm and that's
what the Supreme Court hat is today and
it always has been
with the exception of the Warren Court
has always been a conservative branch of
government but visa vie the fourteenth
and fifteenth amendments the court in
all these decisions interpreted the
fourteenth and fifteenth amendment in
the most narrow possible way now
remember the 14-15 amendment are
ambiguous the language is vague they're
open to many interpretations but over
time the court has interpreted them even
today in the like recent voting rights
at decision in the narrowest possible
way rather than adopting a more
expansive interpretation and some of
this is based on a historical reading of
reconstruction i did an article a couple
years ago just looking at the footnotes
of supreme court decisions which
historians do they cite on when they
talk about this and long after
historians had begun to challenge the
old traditional view it was popping up
over and over again in supreme court
decision
in the nineteen fifties they were still
quoting Claude Bowers one of the worst
books of history ever written but still
cited in supreme court decisions of
eventually they stopped of course today
they're more up-to-date but here's the
problem jurisprudence is based on
precedent a series of flawed decisions
from slaughterhouse to civil rights the
Cruickshank remain on the books they
remain good law the old even the Warren
court only overturned plessy v ferguson
they would not overturn they would never
say the Supreme Court has been
consistently wrong in its 14th Amendment
jurisprudence they worked around it
rather than confronting it so for
example the Civil Rights Act of 1964 was
upheld under the Commerce Clause not the
Fourteenth Amendment they did not try to
reinvigorate the Fourteenth Amendment
which they could have and should have
done so this is another example of how
of history is embedded in the very
nature of supreme court decisions
because they're based on precedent and
if those presidents are based on a Miss
reading of history then we have you know
then this it's still affecting the
present in which we live
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