Yesterday afternoon and evening C-SPAN showed several panels of historians discussing the period known as Reconstruction — the term referring to the post-war occupation and "reconstruction" of the states of the defeated Confederacy. That was the period which gave freed slaves the greatest hope of achieving equal rights in this country before the mid-20th century. After 1876 Democrats regained control of southern governments, suppressed violently the right of freedmen to vote, and proceeded to pass legislation designed to segregate the races and consolidate white supremacy. All of these actions violated the post Civil War 14th and 15th Amendments to the Constitution. Consequently cases eventually reached the Supreme Court arguing that such laws were unconstitutional. The Court did not acquit itself well. Arguably the most important case was Plessy v Ferguson (1896) testing a Louisiana law that segregated railway carriages by race. The Court upheld the state's law, ruling that separate facilities were Constitutional so long as they were equal, thus "separate but equal." That decision was the legal justification for the system of segregation that prevailed in the South for the next sixty years. The vote on the Court was eight to one. The single dissent was by Justice John Marshall Harlan. From his dissent:
.... In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. .... I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States....[I]n view of 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. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. ....The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
People who know more about Constitutional law may find my opinion simple-minded but it has always seemed to me that the Brown v Board decision labored much too hard to demonstrate that separate was inherently unequal. I think they ought to have simply used Harlan's reasoning and overturned Plessy. Harlan's argument had nothing to do with social science or statistics. It had nothing to say about groups. It was about the right of each individual American citizen, without regard to race or any other category, to be treated equally before the law.