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Everyone knows this law isn’t about separating the races—it’s about excluding blacks from wherever whites are. The law perpetuates a caste system. No law that does this can be Constitutional. “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

PlessyHarlan (dissenting)


Held: The right to vote is not included in the rights of a “citizen” under the 14th Amd. At the time, many states granted citizenship and voting rights in disparate ways. Section 2 of the 14th Amendment specifically refers to the voting rights of males.

Minor v. Happersett


Prohibited discrimination by places of public accommodations such as inns, theaters, and places of public amusement. Declared UNCONSTITUTIONAL in the Civil Rights Cases (1883) (Congress’s § 5 powers under 14th Amendment apply only to actions by the “state”).

CRA 1875


Provided criminal penalties and civil liability for any person acting under color of state law who violates the Constitution or laws of the United States or who engages in a conspiracy to violate civil rights. Today: 18 USC §§ 241, 242 (criminal penalties); 42 USC § 1983 (civil liability); 42 USC § 1985 (conspiracy).

KKK Act 1871


provided that blacks and whites should have the same right to make and enforce contracts, sue, give evidence, and acquire property. Today: 42 USC §§ 1981, 1982.

CRA 1866


Slaves are property with no rights conferred upon citizens. Slaves were “subordinate and inferior”; a “perpetual and impassable barrier” was erected between whites and slaves. Since Scott has no citizenship, no diversity jurisdiction. Declared MO Compromise UNCONSTITUTIONAL (despite not having jurisdiction under diversity). Congress could not grant citizenship to slaves—this would deprive slave-owners of their property rights.

Dred Scott v. Sandford


The law is based on public welfare concerns (preventing racial tension), so we can only overturn the law if it’s “unreasonable.” Cannot say the law is unreasonable—this is no more violative of the 14th Amendment than laws requiring separate schools. The law doesn’t place a badge of inferiority on AAs—if they feel that way, they have placed that construction upon the law themselves.

Plessy (majority)


This case announced the "suspect classification doctrine"—treating racial classification as presumptively unconstitutional because of their tendency to treat minority groups as objects of hostility and prejudice.



Two questions: (1) Does the constitution guarantee to any class or description of people the right to enslave another class? (2) Is the dissolution of the union between slave and free required, either by fidelity to the slaves or the just demands of conscience?Plain text argument: Intent should only be inferred where plainly apparent in the text. The language of the constitution is clear, in English. The constitutional debates were kept secret for a reason—so that the people could adopt a simple text alone and not the secret motivations of those who drafted it. The constitution does not forbid a colored man from voting.

Frederick Douglass - The Constitution of theUnited States: Pro-Slavery or Anti-Slavery?