The Rule of the Courts

M. Akram Faizer

Taney, concluded that no Black person could be a U.S. citizen and that Congress acted unconstitutionally in legislatively enacting the Missouri Compromise that purported to grant freedom to former slaves based on their domiciliary status in a free state. 85 Many legal academicians blame this decision with further polarizing political cleavages on the issue of slavery and prompting the secession of southern slaveholding states before the Civil War. 86 The Court’s use of its judicial review powers after the Civil War were equally problematic. In the Civil Rights Cases (1883), the Court concluded the Fourteenth Amendment’s Equal Protection Clause provided individuals with protection from government discrimination alone and invalidated the Civil Rights Act of 1875 because it purported to protect Black Americans from private discrimination by places of public accommodation such as restaurants, theaters and inns. 87 This decision, along with Plessy v. Ferguson (1896), which gutted the meaning of equal protection by concluding it to be consistent with state laws mandating segregation of the races, facilitated the rise of a system of racial hierarchy in the American South, known as Jim Crow, that endured until well into the 1960s. 88 In Korematsu v. United States, the U.S. Supreme Court applying the Fourteenth Amendment’s Equal Protection Clause, refused to conclude that the Roosevelt Administration’s exclusion order that forced all persons of Japanese descent into military encampments on the country’s west coast violated equal protection. 89 This is even though the U.S. government never contemporaneously required the same of German and Italian Americans and while the government of the United Kingdom gave individualized hearings to all persons of German origin living in the U.K. during World War II. 90 The Court’s failure was most likely based on a fear of antagonizing

85 60 U.S. (19 How.) 393 (1857). 86 See e.g. James M. McPherson, Battle Cry Freedom (1988) and David M. Potter, The

Impending Crisis, 1848–1861 (1976). 87 Civil Rights Cases, 109 U.S. 3 (1883) 88 Plessy v. Ferguson, 163 U.S. 537 (1896) 89 Korematsu v. United States is 323 U.S. 214 (1944)

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