Reconstruction and retreat Strauder V. West Virginia – Invalidated law barring blacks from juries

• Strong 1879. Invalidated Virginia’s law barring blacks from juries. Facts. A state statute provided that “all white male persons who are twenty-one years of age who are citizens of this State shall be eligible to serve as jurors.” P, a black, is convicted of murder by a jury from which all blacks have been removed pursuant to this statute.

• Holding. Act on its fact discriminates against blacks, and therefore violates the Equal Protection Clause.

• Note. Where a law is found to discriminate “on its face,” the SCt will not require that it be shown to have had an actual discriminatory impact in the case at hand. Thus, in Strauder, P was not required to show that he would not have been convicted by a jury containing blacks, or even to show that some blacks would have been seated on the jury had the statute not been in force. The mere risk of discriminatory impact was sufficient, given the facial discrimination.

• Koppelman

• Strong’s opinion, despite its (racist?) description of the freed slaves as “mere children,” is the highwater mark of judicial protection of blacks after the Civil War.

• Note how limited the pool of potential jurors may be, according to Strong. There is, for example, no problem with excluding women. Then again, there is some textual warranty for this sex discrimination (the 14^th amendment itself specifically countenances the exclusion of women from voting.)

• To what extent does the SCt’s conclusion here flow from the text of the 14^th Amendment?

1. Why does Strauder have standing to challenge the exclusion of blacks from his jury – how was he harmed by being tried by an all-white jury?

2. “Can one denounce racial classifications because they rest on irrelevant or nonexistent distinctions and simultaneously assert that outcomes would be different if the perspectives of the excluded group were recognized?” (Brest and Levinson)

• There is ambiguity in SCt’s opinion as to which argument carries more weight:

1. Opposition to ideology of black inferiority endorsed by Dred Scott;

2. Opposition to “unfriendly legislation” derived from McCulloch’s notion that Congress’ intent by legislation must be in accord with constitutional norms. (AK: how does SCt tell whether legislation is unfriendly to blacks?)

• How important is the SCt’s conclusion that the freed slaves were “abject and ignorant”? If that conclusion were wrong, would the case come out differently?

Plessy V. Ferguson – Separate but equal – Railroad cars

• Brown 1896. Established “separate but equal” doctrine.

• Initially, SCt’s view was that “separate but equal” treatment did not violate equal protection. SCt upheld a Louisiana law requiring segregation of railroad passenger cars; a law calling for separate-but-equal accommodations for white and black railroad passengers.

• Rationale. Majority reasoned that laws such as this one related only to “social” equality, not to political or civil equality. Brown concluded that the 14^th Amendment mandates “political,” not “social,” equality. “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but 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.” SCt held that social equality was not a goal of the Equal Protection Clause, and could be attained only through voluntary action by individuals, not by statutes.

• Not badge of inferiority. Moreover, the law itself did not “stamp . . . the colored race with a badge of inferiority.” If African Americans felt inferior under the law, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

• Dissent - Harlan.

• The distinction between social and political equality, and the exclusion of the former from antidiscrimination concerns, is taken for granted by the sole dissenter as well: “Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.”

• However, the first Justice Harlan argued that the law here did indeed violate equal protection. Although it appeared facially neutral, “every one knows that it had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” The statute therefore interfered with the personal freedom of African Americans.

• Harlan’s dissent has become a canonical source of contemporary antidiscrimination doctrine, though the overt racism of his discussion of the Chinese suggests that this source ought to be relied on with caution. He looks both to formal equality and to the political reality that these statutes were enacted to oppress blacks, leaving some doubt as to the fundamental constitutional ground for his dissent.

• Is Harlan’s essential claim that

1. “Our USC is color-blind,” so that the government is centrally prohibited from classifying on the basis of race, or

2. is it his claim that “There is no caste here,” so that the problem is the underlying political reality.

3. These two different readings may have very different implications for, for example, affirmative action. Some have argued that Harlan meant his “color-blind” remark to include “benign” or “reverse” discrimination based on race.

• How does the majority distinguish Strauder?

• On the one hand, we can argue that Plessy was rightly decided because the 14th Amendment protects political, not social, equality. In accordance with the Locher method of evaluating laws, the law at issue in Plessy was constitutionally valid because it did not deny anyone the right to use, control, or dispose of his property. The law requiring segregated railroad cars imposed a badge of inferiority on blacks only to the extent that blacks believed this to be the case; thus, the law did not violate Strouder.

• On the other hand, it is more sensible to conclude that Plessy was wrongly decided because the law was clearly intended to discriminate against blacks; it legally codified society's hostility toward blacks. This violates Strouder's notion that blacks are exempt from unfriendly legislation against them distinctively as colored -- exemptions from legal discriminations, implying inferiority in civil society . . ." By legally permitting social inequality, the Plessy court inevitably permits legal inequality as well.

February 29, 2000