A sneaking suspicion

[Cirsium]

31. It has been a long, long road

Justice Roger B. Taney is notorious for his opinion in the Dred Scott case.

Excerpt:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Full text: https://www.owleyes.org/text/dred-scott-v-sandford/read/opinion-of-the-court#root-58

But the struggle for racial equality and the subsequent white nationalist backlash began long before Taney and continues long after. Taney died in 1864, before Congress passed the Reconstruction Acts of 1867. A series of decisions — including the Slaughter-House Cases (1873), United States v. Cruikshank (1876), United States v. Reese (1876), and the Civil Rights Cases (1883) — steadily narrowed federal protections for Black citizenship and voting rights.

It was Justice Samuel F. Miller, speaking for the majority in the Slaughter-House Cases of 1873, whose opinion first crippled the 14th Amendment. Then in United States v. Cruikshank (1876), Chief Justice Morrison R. Waite ruled that the protections of the Bill of Rights constrained only the federal government, while the 14th Amendment applied only to state action and not to private acts of racial violence. The decision severely limited the federal government’s ability to protect African Americans from white supremacist terrorism during Reconstruction.

What the Court held was that the protections of the Bill of Rights — specifically in that case the First and Second Amendments — restricted only the federal government, not private individuals or state governments. The Court also held that the 14th Amendment constrained only state action, not the actions of private persons.

That distinction was devastating in practice because the case arose out of the Colfax massacre, where white paramilitaries murdered large numbers of Black citizens in Louisiana during Reconstruction-era political violence. Federal prosecutors had attempted to use the Enforcement Acts to prosecute the attackers. The Court’s narrow interpretation effectively crippled the federal government’s ability to intervene against racial terror carried out by private groups when states refused to protect Black citizens.

United States v. Harris (1883) went further by overturning portions of the Civil Rights Act of 1871. In United States v. Reese (1876) the court ruled that the 15th Amendment did not establish a positive right to vote. This led to the states coming up with clever ways to suppress the votes of African Americans - poll taxes, grandfather clauses, and literacy tests. In 1883 the court declared the Civil Rights Act to be unconstitutional.

What emerges from that history is not merely “racism” in an abstract sense, but a systematic judicial redefinition of citizenship, federal power, and constitutional enforcement that allowed white supremacist state systems to reassert themselves under formally race-neutral legal doctrines.

Here is a supreme irony. The Trump administration is claiming that the 14th amendment only applied to former slaves. Yet the very first case testing it and weakening it involved a dispute between white meat packing companies. The amendment was unquestionably written in the aftermath of slavery and the American Civil War, with the immediate purpose of protecting the rights of formerly enslaved Black Americans against hostile state governments. But almost immediately, the amendment’s interpretation became entangled in broader questions of corporate rights, federalism, economic regulation, and the scope of national citizenship.

The first major Supreme Court interpretation — The Slaughter-House Cases — did not arise from a direct Black civil-rights claim at all. It arose from a dispute involving white butchers and meatpacking interests in New Orleans challenging a state-created slaughterhouse monopoly. An amendment created to secure the citizenship and rights of formerly enslaved people was first narrowed dramatically in a case centered on economic competition among white businessmen.