Info Brief: Fourteenth Amendment—Equal Protection: African Americans

Read about how the Fourteenth Amendment has been interpreted to guarantee equal protection for African Americans.

Let’s focus on the Fourteenth Amendment’s promise and protection of equality. Here’s the Equal Protection Clause of Section 1 of the Fourteenth Amendment: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” We have Ohio Representative John Bingham—among others—to thank for that. Bingham was the main author of Section One of the Fourteenth Amendment.

Before turning to the story of the Fourteenth Amendment and racial equality, let’s turn first to Bingham’s vision for the Fourteenth Amendment. Here’s how Bingham explained it on the campaign trail in 1866: With the Fourteenth Amendment, he sought “a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union,” guaranteeing “equal protection” for “any person, no matter whence he comes, or how poor, how weak, how simple—no matter how friendless.”

But as Reconstruction faded, the Fourteenth Amendment’s promise of equal protection was denied to African Americans. It took almost a century for the Supreme Court, and the nation as a whole, to begin to realize the promise of the Fourteenth Amendment’s Equal Protection Clause for African Americans.

Let’s take a closer look at that history.

Plessy v. Ferguson

Despite the promise of the Reconstruction Amendments, the Jim Crow system, which began in the waning days of the Reconstruction era, undermined their promise of freedom and equality for nearly a century. Over time, white Southerners regained political power and imposed second-class citizenship on African Americans.

In the late 1800s, many states—particularly in the South—passed laws that restricted the rights of African Americans. This system of Jim Crow segregation forced African Americans to attend different schools than white Americans, drink from different water fountains, use different restrooms, travel in different train cars, and stay in different hotels—and on and on. These states also used a mix of violence, intimidation, and laws on the books—including polls taxes and literacy tests—to keep African Americans from voting.

Less than two decades after the Fourteenth Amendment’s ratification, the Supreme Court issued its infamous decision in Plessy v. Ferguson (1896). This decision provided legal justification for the Jim Crow system. What happened there?

Homer Plessy worked with a group called the Committee of Citizens. The Committee opposed Louisiana’s 1890 Separate Car Act, which segregated railroad cars within the state—separating African American from white passengers. Plessy was chosen as a “test case,” so that the group could challenge the constitutionality of the Act. Plessy had a light complexion and was born free, but was of mixed-race and therefore “black” under Louisiana law. Plessy and his allies hoped that his arrest would prove the arbitrary nature of the law.

But, in a 7-1 decision, Plessy lost. Justice Henry Billings Brown wrote the majority opinion in Plessy, upholding “separate but equal” laws. In other words, according to the Supreme Court, Jim Crow laws—enforcing segregation and racial discrimination against African Americans—were constitutional. The Court concluded that these laws didn’t violate either the 13th Amendment (abolishing slavery) or 14th Amendment (promising equality).

Justice Brown: While the object of the 14th Amendment was “undoubtedly to enforce the absolute equality of the two races before the law, . . . 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 commingling of the two races upon terms unsatisfactory to either.”

The Court argued that the Louisiana law was a reasonable use of the state’s “police power” to regulate the health, safety, and morals of its population.

Justice Brown: The underlying mistake of Homer Plessy’s argument was “the assumption that the enforced separation of the two races stamps [African Americans] with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because [African Americans] choose[] to put that construction on it.”

But Justice Brown’s arguments didn’t go unanswered. Justice John Marshall Harlan was the lone dissenter in Plessy. His dissent is one of the most important (and powerful) opinions in Supreme Court history.

In his dissent, Harlan argued that everyone understood the real purpose of the Louisiana law. It was not a neutral purpose to exclude white people from railroad cars occupied by African Americans, but rather to exclude African Americans from coaches occupied by whites under the “guise of equal accommodation.”

Justice Harlan famously argued that under the Constitution, “in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. ... In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”

And so the Plessy decision has been. But it took over 50 years for the Court to fix its mistake and overturn Plessy.

Brown v. Board of Education

To see how the Court eventually gave life to the Fourteenth Amendment’s—and Harlan’s—words, let’s fast forward to 1954 and to arguably the most famous Supreme Court decision in American history—Brown v. Board of Education (1954).

Brown combined similar challenges from a variety of locations—namely, Kansas, South Carolina, Virginia, Delaware, and Washington D.C. These cases all involved African American students who had been denied admission to white public schools. The challengers argued that these segregation laws violated the Fourteenth Amendment’s Equal Protection Clause and that separate could never be equal in public education.

However, as we’ve already discussed, in Plessy, the Supreme Court long ago upheld racial segregation laws that provided “separate but equal” facilities and institutions for people of different races. In Brown, the Supreme Court unanimously overturned Plessy and concluded that school segregation—in other words, having separate schools for African American and white students—violated the Fourteenth Amendment’s promise of equality and was unconstitutional.

Chief Justice Warren: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

The Court concluded that even “separate but equal” facilities were, in reality, unequal, because separating the races resulted in a damaging brand of inferiority imposed on African American children. The opinion cited studies that showed the psychological and physical effects of segregation on minority students to show that “separate but equal” facilities were inherently unequal and thus unconstitutional.

Brown was the culmination of a long-term, decades-long strategy by the NAACP and its lawyers like Thurgood Marshall (who later became the first African American Supreme Court Justice) to challenge Jim Crow laws. In Brown, they targeted the segregation of public schools. But the campaign itself was a gradual campaign to undermine segregation in other contexts like public universities and law schools before turning to segregation in public schools—a much more controversial issue.

For instance, in Sweatt v. Painter (1950)—so, four years before Brown—the Court already questioned the “separate but equal” doctrine of Plessy. Herman Sweatt was refused admission to the University of Texas Law School on the basis of race. The Court ruled that this was unconstitutional under Equal Protection. And in another case—McLaurin v. Oklahoma—the Court decided segregation in higher education violated Equal Protection (for a school receiving government money).

The Battle for Racial Equality After Brown

Brown attacked the core of the white South’s Jim Crow laws and reinvigorated the Fourteenth Amendment’s promise of equality. However, Brown did not end segregation in public schools in one fell swoop. A few years later, the Court heard a second case, Brown II (1955), to make clear that the Constitution required public schools to integrate “with all deliberate speed.” Following Brown, the Supreme Court extended the reach of the Equal Protection Clause to cover discrimination in other settings.

The white South fought back. In the aftermath of Brown, Virginia Senator Harry F. Byrd called for “massive resistance.” Half a million white Southerners joined White Citizens’ Councils to block school integration, while others joined the Ku Klux Klan at levels not seen since the violence of the 1920s. In 1957, this backlash reached crisis point in Little Rock, Arkansas. Nine black students—the “Little Rock Nine”—attempted to enroll at the all-white Central High School. Governor Orval Faubus called out the National Guard to bar them, with the support of white mobs. President Eisenhower then sent 1,000 federal troops and nationalized the Arkansas National Guard to protect the African American students. In a powerful speech, Eisenhower addressed the nation—explaining his decision.

Finally, the Warren Court stepped in to reinforce Eisenhower’s actions in Cooper v. Aaron (1958). There, the Court explained that state officers and governors had a duty to obey the orders of the Court, which rested on the Court’s interpretation of the Constitution. It concluded that states are bound by the Supreme Court’s decisions and must enforce them even if the states disagree with them.

But the battle for racial equality continued. Of course, the Supreme Court wasn’t alone in this battle. A decade later, and spurred by the Civil Rights Movement, Congress passed the Civil Rights Act of 1964—a sweeping civil rights law promoting equality. This law closely mirrored the Civil Rights Act of 1875, which the Supreme Court had struck down in The Civil Rights Cases (1883).

With the Civil Rights Act of 1964, Congress attacked racial discrimination in a variety of settings, including work, schools, and public settings (like restaurants and hotels). Congress passed this law under its Article I power to regulate interstate commerce, but it can also be understood as realizing the promise of the Reconstruction Amendments.

Shortly after Congress passed the Civil Rights Act of 1964, the Supreme Court considered a challenge to its constitutionality—Heart of Atlanta Motel v. United States (1964). There, a motel owner refused to rent rooms to African Americans, arguing that the Civil Rights Act exceeded Congress’s Commerce Clause powers. The Warren Court—in an opinion by Justice Tom Clark—upheld the Act.

Congress was clear that the key purpose behind the Act was to end “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Evidence showed that discrimination by race burdened interstate commerce in an increasingly mobile society—having both a quantitative and qualitative effect on interstate travel by African Americans. Congress’s power under the Commerce Clause was simply a question of whether the activity sought to be regulated was commerce “which concerns more states than one” and has a “real and substantial relation to the national interest.” Congress could regulate local activities that had a substantial and harmful effect on interstate commerce, including racial discrimination in motels serving travelers.

And in Katzenbach v. McClung, the Warren Court upheld another section of the Act—banning racial discrimination in restaurants. There, Ollie’s Barbeque was a Birmingham, Alabama, restaurant seating 220 customers located on a state highway only 11 blocks from the interstate. The owner, Ollie McClung, argued that his business was too small and purchased so little food that crossed state lines that his business’s effect on interstate commerce was too minimal to allow Congress to regulate it. In another opinion by Justice Clark, the Court concluded that while McClung’s business had little effect on interstate commerce by itself, the racial discrimination in the restaurant—when aggregated with similar actions by other business owners—did have a significant effect on interstate commerce. Clark concluded that such discrimination had a “direct and highly restrictive effect upon interstate travel” by African Americans. Therefore, the Civil Rights Act was constitutional in this context, too.

Finally, in 1967, the Supreme Court struck down laws banning interracial marriage in Loving v. Virginia. The Court protected the right to marry under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, striking down state “anti-miscegenation” laws.

Roughly a century after ratifying the Fourteenth Amendment, the federal government had finally renewed its commitment to providing the promise of Equal Protection to African Americans.

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