34. When the Law Looked Away
Race, segregation, and the Fourteenth Amendment’s broken promise
In the last two posts, we looked at how the Fourteenth Amendment was born in conflict and how one long-dormant clause—the Privileges or Immunities Clause—was quietly revived to protect national citizenship and the right to travel. But that’s only one part of the story.
The Fourteenth Amendment was supposed to transform the legal status of Black Americans, ensuring that states could no longer trap them in a second-class existence. But when the Supreme Court had the chance to enforce that promise in its early cases, it blinked.
Worse—it helped build the legal foundation for Jim Crow.
Early Hopes: Jury Service and Strauder v. West Virginia (1880)
One of the first signs of progress came in Strauder, where the Court struck down a law allowing only white men to serve on juries. The justices recognized that excluding Black citizens from such a fundamental civic role violated the Equal Protection Clause.
It was a meaningful decision—but narrow. Jury service was protected. Segregated schools, segregated transit, segregated public spaces? The Court stayed silent.
A Step Back: The Civil Rights Cases (1883)
Congress had tried to go further, passing civil rights laws that banned racial discrimination in hotels, theaters, and other public businesses. The idea was simple: if you serve the public, you should serve everyone.
But the Court disagreed. In The Civil Rights Cases, it held that the Fourteenth Amendment only applied to state actions, not to private businesses. The result?
States couldn’t discriminate, but private citizens and businesses could.
This ruling stripped the federal government of the power to stop racial exclusion in public life. Discrimination became legal by default. It was a devastating blow that helped entrench segregation in housing, transportation, and employment for generations.
“Separate But Equal”: Plessy v. Ferguson (1896)
By the 1890s, Southern states had taken the Court’s hands-off approach and run with it, legally enforcing separation of Black and white citizens in nearly every aspect of life.
When Homer Plessy challenged Louisiana’s segregated train cars under the Equal Protection Clause, the Supreme Court shut him down. Justice Henry Billings Brown wrote the now-infamous phrase:
“Separate but equal.”
The Court claimed the law didn’t make Black citizens inferior—only they felt that way. It framed segregation as neutral. But as we know: separate was never equal.
Black schools, train cars, and neighborhoods were almost always worse in funding, infrastructure, and opportunity. But with Plessy, the Court gave Jim Crow laws a constitutional green light.
The One Dissent: Justice Harlan
Justice John Marshall Harlan dissented powerfully in Plessy. He declared:
“Our Constitution is colorblind.”
He saw what the majority refused to admit: that segregation wasn’t neutral, it was designed to enforce racial hierarchy. Harlan’s dissent is remembered today as prophetic.
But even he had limits: he supported the exclusion of Chinese immigrants and echoed the racism of his era in other ways. His dissent is a reminder that even the most forward-thinking voices of the time were still shaped by deeply embedded biases.
Fighting Back: The NAACP and the Legal Attack on Plessy
In the decades after Plessy, the NAACP began building a legal strategy to dismantle segregation piece by piece. Instead of attacking Plessy head-on, they targeted its weakest link: the idea that separate schools could ever be equal.
They started with graduate and law schools, where disparities were especially obvious. The cases they brought changed the conversation:
Missouri ex rel. Gaines v. Canada (1938): Missouri couldn’t just pay a Black student to go out of state. It had to provide a truly equal school in-state.
Sipuel v. Board of Regents (1948): Oklahoma couldn’t pretend a hastily-built, under-resourced law school was equal.
Sweatt v. Painter (1950): Even if facilities looked similar on paper, things like networking, reputation, and faculty access mattered to a student’s education and career impact, and these weren’t truly equal in Black schools.
McLaurin v. Oklahoma State Regents (1950): A Black student was admitted to the University of Oklahoma’s graduate education program because a court had ordered it. But once enrolled, the university physically separated him from white students (he had to sit in the hallway during class, had a designated table in the cafeteria, and a separate desk in the library). The Supreme Court ruled that this kind of enforced isolation made true equality impossible.
Together, these cases chipped away at the legal fictions upholding segregation.
The Long Arc Toward Brown v. Board
By 1954, the groundwork had been laid. In Brown v. Board of Education, the Court finally admitted what everyone already knew:
“Separate educational facilities are inherently unequal.”
It was the beginning of the end for legal segregation. But the victory came nearly 90 years after the Fourteenth Amendment was ratified—and only after generations of damage.
Final Thoughts: Law Is Not Neutral
If the Supreme Court had ruled differently in The Civil Rights Cases or Plessy, American history might have unfolded differently. The Fourteenth Amendment gave us the tools to build a racially just democracy—but for decades, the Court refused to use them.
These cases remind us that law isn’t just about what the Constitution says—it’s about who decides to enforce it, and for whom.
Legality is not the same as justice.
Constitutional text is not the same as constitutional power.
We live with the consequences of those early refusals. And the fight to close the gap between what the law promises and what it delivers is still ongoing.