The following is a brief history of Plessy v. Ferguson (considered the legal beginning of Jim Crow Law), the 14th Amendment and the beginning of what we now call "Big Business." In this present time of big Wall Street bonuses; in an era of bail-outs and "too-big-to-fail" corporations, I believe it is important to see the backdrop against which the genesis of these ideals took place and at what cost.
After the compromise of 1877, former slaves were even more vulnerable than they were before. In the 1860's & 1870's the duplicity towards Blacks was complete and total with the Presidency, Congress and the Supreme Court all showing either outright hostility to the interest and concerns of Black folk (for example, Andrew Johnson's policies in regard to newly freed slaves; the Supreme Court in decisions such as the Slaughterhouse cases of 1873 that decided that the Fourteenth Amendment protected only the rights people had by virtue of their citizenship in the United States, such as the right to federal protection when traveling on the high seas and abroad and in 1883; the Court ruled that the Civil Rights act of 1875, forbidding discrimination in hotels, trains, and other public spaces, was unconstitutional and not authorized by the 13th or 14th Amendments of the Constitution) or indifference (i.e. the "negotiating" away of the rights and freedoms of Blacks by Congress in 1877). This all culminated in Plessy v. Ferguson in 1886.
Plessy v. Ferguson came down to one question: How was the 14 th amendment to be construed? The fourteenth amendment itself was both an opportunity and a quandary. Adopted in 1868, it seemed to guarantee equal rights for all: "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 key phrase was "equal protection of the laws." Read broadly, it might mean that hereafter the Constitution would be color-blind: no state law could have the effect of treating whites and blacks differently. Thus a law segregating blacks and whites into separate schools or neighborhoods would be unconstitutional. Read narrowly, "equal protection" might mean only that blacks and whites had certain fundamental legal rights in common, such as the right to sign contracts, serve on juries, or buy and sell property, but otherwise be treated differently.
It has long been debated by historians what view Congress actually held when it proposed the Fourteenth Amendment. What forms of racial segregation, if any, were still permissible? Segregated trains? Hotels? Schools? Neighborhoods?
The Supreme Court took the narrow view (a side note: when politicians speak of "strict constructionists," this is what they are talking about). Though in 1880 it declared unconstitutional a West Virginia law requiring juries to be composed only of white males, it decided in 1883 that it was unconstitutional for Congress to prohibit racial discrimination in public accommodations such as hotels. The difference between the two cases seemed, in the eyes of the Court, to be this: serving on a jury was an essential right of citizenship that the state could not deny to any person on racial grounds without violating the Fourteenth Amendment, but registering at a hotel was a convenience controlled by a private person (the hotel owner), who could treat blacks and whites differently if he or she wished.
In Plessy v. Ferguson the Court held that the Louisiana law treated both races equally even though it required them to be separate. The equal-protection clause guaranteed political, legal but not social equality. "Separate-but-equal" facilities were constitutional because (as stated in the decision of the court): "if one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane."
Ironically, while Blacks were being systematically deprived of their rights ("legally," no less), corporations were using the 14th amendment for their own gain and accumulation of wealth. Ten years prior to Plessy ( in 1886) in the landmark case of Santa Clara County v. Southern Pacific Railroad, the Court, invoking the 14th Amendment, defined corporations as "persons" and ruled that California could not tax corporations differently than individuals. It followed that, as legal "persons," corporations had First Amendment rights as well.
Using this definition of corporations as persons, the Court proceeded to strike down a whole range of state regulations. Justice Samuel Freeman Miller said in 1873 (in the aforementioned Slaughterhouse cases), "The one pervading purpose" [of the 14th Amendment] "was the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him."
This view was also voiced in Justice Hugo L. Black's dissent in Connecticut General Life Insurance Co. v. Johnson in 1938. "[W]hen the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations," Justice Black wrote. "The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments," he continued. "The Fourteenth Amendment followed the freedom of a race from slavery. . . Corporations have neither race nor color."
Nevertheless, it didn't matter if the 14th Amendment was originally framed and passed with the intent of protecting newly-emancipated slaves, the corporation lawyers and the Supreme Court used the 14th Amendment to engage in an incestuous relationship that produced as its deformed offspring the corporation as a legally recognized person. Tragically, of the 309 cases involving the 14th Amendment from 1890 to 1910, 288 involved corporations; only 19 involved Blacks.
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Nevertheless, it didn't matter if the 14th Amendment was originally framed and passed with the intent of protecting newly-emancipated slaves, the corporation lawyers and the Supreme Court used the 14th Amendment to engage in an incestuous relationship that produced as its deformed offspring the corporation as a legally recognized person. Tragically, of the 309 cases involving the 14th Amendment from 1890 to 1910, 288 involved corporations; only 19 involved Blacks.
I take it Edward this article refers to the emancipation of big business rather than the rights of the people. Am I on the right track?
In a way, yes David. The genesis and ascendancy of Big Business in America didn't occur in a vacuum, it was simultaneous with the denial of the rights of a class of American citizens and human beings. I argue that the same paradigm exists today --- even if legalized segregation and discrimination does not exist as paramount law of the land.
The ambiguity of the amendment is apparent immediately: "Congress shall make no laws..." As much as I respect our laws and founders, it seems shortsighted, maybe even negligent, to think that the issue of race wouldn't come to the attention of the courts. Our courts are meant to interpret the law, but when there are no laws, the court is still under pressure to make a ruling. That is where we get the kind of judicial legislation you are speaking of in this article. Unfortunately, those with greedy mindsets will exploit any loophole or slack in the system to further their lust for more -- greed feeds on the less fortunate. We have a long legacy of this in our country, perhaps not as long and bloody as in other countries, but we're young yet. God Bless America (i.e. me, me and me).
Thanks for commenting J.D. I agree with you concerning the "shortsightedness" of the architects of the Constitution. However, with the exception of John Adams & Benjamin Franklin, the Founding Fathers were all slave owners and therefore open to the "sin" of ambiguity when it came to the humanity and rights of Blacks.
The Supreme Court historically, in my opinion, is a mixed bag of timely decisions and horrendous judgments. It is up to us, by virtue of good and just values, as to whom we elect and as to what we object. Thanks again for reading and commenting J.D. --- your comments have always been extremely insightful.
A very interesting account Edward. There is a lot in our history whcih no one should be proud of except the Blacks. They accepted their state as best they could and prvailed. Thanks for writing this.
Thanks Joel. I agree and disagree. Yes, there are some shameful aspects of our American history that denigrated Blacks. Nevertheless, I am reminded of all the wonderful justice-seekers & iniquity-fighters in American history of every hue, including my white brothers & sisters --- although they were few in quantity, they were of the highest quality and I bless the Lord for their lives and examples (individuals such as Roger Williams, Anne Hutchinson, William Penn, John Adams, Abigail Adams to name a few).
I do, however, understand the point you are making. You made a very true statement regarding the dark & cloudy moments in our nation's history. I was just pointing to the rays of sun peeking out from just behind those clouds. God bless you Joel, my dear brother.
It's too bad that "...all men are created equal" couldn't have sufficed as the spirit of all law, but for some reason had to be further interpreted, restricted and defined, leaving loopholes for the greedy to crawl through???
Whenever the spirit of the law has to be defined and reduced to the letter of the law, it will always leave loopholes. When Jesus gave us His two spirit of the law commandments, it filled in (fulfilled) all the loopholes of the previously cumbersome and detailed letter of the old law and the prophets.
And by the way, isn't it totally preposterous that anyone should ever have treated any human being differently than another simply because of the color of their skin? Isn't it mind-blowing that to this day in our country, there are people who still do??? What's up with that? Talk about stone-age mentality! It exasperates me. Lord Jesus, come quickly!
Thanks for reading Anon. I suppose that the founders believed that "all men were created equal," but they were in doubt as to who were really men or human. If a person's or a group of people's humanity can be delegitamized, then all types of unspeakable injustices can be perpetrated against them without really batting an eye.
Add to that paradigm, that a corporation was invested with more rights as a human being than were actual human beings. I agree, in the law of Christ I see the antidote for these type of attitudes and sins, but I dare say there isn't enough people actually looking to Christ --- that includes people who profess to be Christians.
Yes come Lord Jesus. Thanks again for reading and commenting.
Well researched article. Detailed and well written. Educational and informational to read. Text flows well. Subject matter important. Thank you for a very good article.
I enjoy reading interpretations of the history of the U.S., and especially how and what our Constitution means. Just goes to show you there is more than one side to the story.
Thanks Greg. I have always said that American history, as it has been (and yet being) taught in our schools, is an incomplete history. It is missing some very key perspectives and voices. I have, throughout the course of my life & career, tried to include those missing voices and perspectives --- I will be writing more pieces like this as well.
Thanks Ken. It is heartbreaking at times, but we only grow as a nation and society when we are completely honest about our history --- the same is true for individuals as well. Ken your comments are always a blessing to me. Thanks again bro.
There is a lot of information here, Edward. It is all good stuff, and it's the type of history that is usually overlooked in our educational system. (I hope you don't mind me pointing this out, but in the first sentence of the second paragraph, there is a "more" missing, I believe, before the word vulnerable.)
Thanks for the interesting and informative article.
Thanks Debi for the heads-up --- no, I don't mind at all you pointing that out. Yes, our educational system should be more diligent about teaching the full scope of American history --- as an educator, I have done my best to.
Thanks for taking the time to read & comment Debi, I appreciate it.
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