By Kevin Boyle
Special to The Washington Post
Friday, February 25, 2011; 10:59 AM
The Betrayal of Equal Rights by the Supreme Court, 1865-1903
By Lawrence Goldstone
Walker. 242 pp. $26
"Constitutional law," Lawrence Goldstone says toward the end of "Inherently Unequal," "is . . . simply politics made incomprehensible to the common man." It's meant to be a sound bite, a clever coda to a cautionary tale of justice corrupted and denied. But it speaks to a cynical strain that runs through this history of the late 19th-century American struggle to define the boundaries of racial justice - and that makes Goldstone's story darker than it ought to be.
It's dismal enough to begin with. In the immediate aftermath of the Civil War, Congress drafted and pushed to ratification two constitutional amendments - the 14th and 15th - intended to guarantee African Americans full equality before the law. Almost immediately the Supreme Court began to eviscerate Congress's work. First the justices ruled that the federal government had very limited power to protect its citizens' rights; most of the time it was up to the states to assure equal treatment. Then, bit by bit, the court gave states enormous leeway in defining equality. If Tennessee was willing to allow Klansmen to terrorize African Americans, Virginia willing to allow judges to block blacks from juries, and Kentucky willing to institute a poll tax that stripped African Americans of the vote, that was their prerogative. The process peaked in the infamous 1896 case of Plessy v. Ferguson, when the justices upheld Louisiana's claim that it was free to segregate its railroad cars, because African Americans were being restricted to seats that were separate from but equal to whites'. Less than 30 years after their passage, the 14th and 15th Amendments had been all but swept aside. In their place stood the fearsome figure of Jim Crow.
Goldstone offers a clear, cogent reading of the court's machinations, no small accomplishment since the justices generally rested their opinions on convoluted legal reasoning rather than on broad principles. And he's completely convincing when he argues that behind those carefully parsed opinions lay a deep-seated racism strengthened by the justices' embrace of Social Darwinism. Before taking the bench, for instance, Chief Justice Melville Fuller had helped to segregate Chicago's schools, while Associate Justice Henry Billings Brown, who wrote the Plessy decision, privately supported black disenfranchisement as a bulwark against the pernicious power of democracy.
But Goldstone isn't satisfied with exposing the Court's corruption. He also insists on slashing away at those who championed racial justice. In his telling, the Radical Republicans who wrote the amendments were zealots determined to give their particular moral code the force of law, public opinion be damned. Those activists who tried to defend black rights before the court - men like Albion Tourgee, the lead lawyer for the Plessy plaintiffs - were invariably bumblers whose ham-fisted tactics undermined the cause. Even Justice John Marshall Harlan, Plessy's only dissenter, isn't spared. True, Harlan turned his dissent into a ringing defense of equal rights. But he was also a racist, Goldstone writes, who believed that African Americans were "simply equal under a benevolent set of laws created by whites." Worst of all, the author claims that the freedmen whose rights the amendments were supposed to protect "were utterly unsophisticated in either self-maintenance or self-governance," lacking "even rudimentary knowledge of social organization." Not only does that characterization fly in the face of a half-century of historical scholarship, but it also undercuts the force of the story he's telling. If African Americans weren't ready for citizenship, why worry when their rights were denied them?
When he turns to the lessons the tragedy teaches, "Inherently Unequal" grows grimmer still. Of course the justices twisted the law to their own purposes, Goldstone says. But that's what the Supreme Court justices do, grabbing hold of whatever precedent they need, "cherry-picking from a vast array of potential paths to fashion and re-fashion the law to suit." So constitutional law has no meaning beyond whatever politics or prejudices the justices want to impose. And the courageous struggles that men and women waged more than a century ago to make a more perfect union were nothing more than shadow plays, flickering faintly in the darkness.
Kevin Boyle teaches history at Ohio State University. He is the author of "Arc of Justice: A Saga of Race, Civil Rights and Murder in the Jazz Age," which won the National Book Award for nonfiction.