The Tragedy of the Fourteenth Amendment: The Supreme Court and the Death of Equality

William J. Stuntz provides us with an illuminating tour of the history of the US legal system in his book: The Collapse of American Criminal Justice. He provides us insight into one of the less well-known of the historical chapters by describing the manner in which the Supreme Court gutted the goals of the Fourteenth Amendment to the Constitution.

The Fourteenth Amendment was adopted in 1868. Its goal was to protect blacks from violence and discrimination in the Southern states. The first section consists of these words:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The emphasis is mine. Stuntz details several well-known massacres of blacks by whites during this period that undoubtedly generated the need for this formal amendment. Sometimes the violence was committed by policing agencies themselves; sometimes it was at the hands of unofficial groups such as the Ku Klux Klan who were allowed to operate with immunity.

Congress supported this intent to provide equal protection with other actions.

"....Congress passed the fifteenth Amendment providing that the right to vote ‘shall not be denied....on account of race, color, or previous condition of servitude.’ Shortly after that amendment was ratified in early 1870, Congress passed the Enforcement Act, which criminalized intimidation of would-be voters, conspiracies to deny the right to vote, and conspiracies ‘to hinder [the] free exercise and enjoyment of any right or privilege granted or secured....by the constitution or laws of the United States’."

It would take only a few years for the Supreme Court to render these good intentions essentially null and void.

The most famous massacre of the Reconstruction era took place in Grant Parish in Louisiana in 1873. The capital city of this district was named Colfax. The parish had been constructed as a black-majority entity by extracting it from several surrounding parishes. The whites were determined to regain control of it, while the blacks were equally determined to maintain control. About 150 blacks occupied the parish courthouse and were deputized to protect parish property. The whites attacked, setting fire to the building and killing most of those who attempted to escape. The killing became a sport as the whites tried to ascertain how many blacks could be killed with a single bullet. Louisiana was so proud of what it accomplished that day that it placed a plaque at the scene with this inscription:

"On this site occurred the Colfax riot in which three white men and 150 negroes were slain. This event on April 13, 1873 marked the end of carpetbag misrule in the South."

Federal authorities were able to obtain only a few convictions from this action. That of Bill Cruikshank would provide a critical turning point in US legal history.

The case went to the Supreme Court. The US government argued that the state, by declining to protect blacks from those who would harm them, was denying them equal protection under the law. The federal government could then prosecute those who were guilty. The justices disagreed. The Court ruled that the wording of the Fourteenth amendment only applied to actions explicitly performed by the state. Private citizens were exempt.

In other words, the Cruikshank ruling found that an amendment ratified with the explicit purpose of protecting blacks from marauding bands like the Ku Klux Klan could not be used to protect blacks from marauding bands like the Ku Klux Klan. In Stuntz’s words:

"The ideal of equal protection—the notion that all Americans are entitled not only to freedom from government oppression, but to a measure of freedom from private violence as well, and the same measure their well-to-do neighbors received—was, for all practical purposes, dead. So were thousands of southern blacks who needed that protection, and needed it badly."

On the very same day, the Court issued another ruling that would have far reaching consequences to this day: United States vs. Reese. In this case Kentucky election officials refused to allow a black to vote even when he offered to pay the poll tax. This was a case where state authorities were denying a lawful right to vote—clearly a violation of federal law—right? It was not to be. The Court ruling declared that prosecution could only proceed if it could be proven that the guilty parties had the intent to discriminate on the basis of race. Intent can never be proven unless intent is confessed—a highly unlikely occurrence.

The net result of Reese was that state or local officials could discriminate on the basis of race as long as they did not admit it.

"After Reese, even Klan-influenced government officials were nearly unconvictable, thanks to the requirement that the omnipresent but unprovable discriminatory motive be established in every case. As the slaughter at Colfax showed, Klan violence could be stopped only by the exercise of federal power. Cruikshank and Reese left the federal government powerless to do the stopping."

If one supposes that these were decisions from a distant, unenlightened past, one would be mistaken. Quite recent Court decisions have upheld and extended the right to discriminate.

"Armstrong [1996] allows police forces and prosecutors to enforce drug laws in black neighborhoods but not in white ones. McClesky [1987] allows prosecutors and judges to punish crimes that victimize whites more severely than crimes that victimize blacks. Castle Rock [2005] allows law enforcers to ignore violent felonies for any reason or no reason at all, without fear of legal liability. All three fact patterns are paradigmatic failures to provide ‘the equal protection of the laws,’ given the meaning those words had to the men who wrote and ratified them."

To make this situation even more relevant to our current situation, Stuntz provides this statement:

"As long as their decisions are not racially motivated—as McClesky and Armstrong show, discriminatory motives are unprovable in this context—police officers and prosecutors have unreviewable discretion to decline to arrest or prosecute offenders."

This also means that police and prosecutors have unreviewable discretion to focus their law enforcement activities on a particular segment of the population.

In her book, The New Jim Crow, Michelle Alexander uses the facts of discrimination against blacks in the War on Drugs, along with these court rulings, to justify the assumption that the nation is intent on reestablishing a permanent underclass based on color of skin—a new Jim Crow. Alexander’s claim of intent is arguable, but it is easy to see how a person enmeshed by his or her skin color in this system could conclude that Alexander’s claim is obviously true.