(Part One is here. A modification of it, that didn’t quite equal Part Two, is here. We pick up our story from the 1868 ratification of the 14th Amendment, which includes the “Equal Protection” clause.)

The path from the addition of “equal protection” to the Constitution in 1868, to the absentee ballot issue that Norm Coleman now wants the Minnesota Supreme Court to consider, runs through some of the worst, least equal protect-y rulings of the U.S. Supreme Court.

In the first years after 1868, blacks voted and were elected to office in many southern states. Some Supreme Court decisions did enforce the best spirit of the new “equal protection” language. In 1880, the Supremes struck down a West Virginia law that banned blacks from serving on juries. An 1886 ruling used grand language about the universality of equal rights, and granted equal protection to an Asian-American plaintiff.

But post-Reconstruction, the national commitment to legal equality for all citizens, especially for racial minorities, faded fast. The Supreme Court used its interpretive powers to disembowel the 14th Amendment. The most famous ruling along those lines, the 1896 Plessy v. Ferguson decision, ruled that a Louisiana law requiring racially segregated railroad cars did not violate “equal protection” because there was a car for whites and a car for blacks. What could be more equal than that?

I once heard a constitutional law professor describe the majority’s method in Plessy as “Martian.” The justices pretend they have just arrived from Mars to hear the case. Being from another planet, they have no idea why Louisiana might insist on whites-only rail cars (nor why the plaintiff, Homer Plessy, who was seven-eighths white by ancestry, would be required to sit in the “colored” car, nor why he might care). The Louisiana law did not require that one car be crappier than the other. The law did not specify that one racial group should feel superior and the other inferior. Martians could not be expected to grasp these realities that would be so clear to the average earthling.

Thus was created the “separate but equal” doctrine, which was used for the next six decades to get around “equal protection” and justify segregated schools, swimming pools, drinking fountains and the notorious back-of-the-bus requirement. “Separate but equal” rendered the plain meaning and obvious purpose of the equal protection clause inoperative for six decades until the Supreme Court simply reversed itself in the 1954 case of Brown vs. the School Board.

This history may seem far removed — and it is –from the Franken-Coleman recount case, which is the excuse for writing about it this week. They are linked by the Equal Protection Clause of the 14th Amendment and I will strive in future installments to suggest some other connections. But I do believe this history is worth knowing, and teaching to our children.

The Great Dissent

The Plessy ruling was adopted by a 7-1 Supreme Court decision. That’s seven martians and one earthling.

The lone dissenter was Justice John Marshall Harlan. Harlan didn’t just see clearly what was going on, he called it what it was. (Here again, I rely on my previous writing on the subject, at the Strib and in my book, “Our Constitution: The Myth that Binds Us.”) Harlan wrote that: “Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks” [me: no duh] but to keep blacks out of the whites-only cars. “No one could be so wanting in candor as to assert the contrary.” But all of his court colleagues were exactly so wanting in candor.

In his dissent, Harlan predicted that the Plessy ruling would open the door to brutal aggression by states against the rights of black citizens. He said it was an invitation to the states to “defeat the beneficent purposes which the people of the United States had in view they adopted the recent amendments of the Constitution.”

He got that right, too. In “Simple Justice,” a history of the path leading up to the Brown decision, Richard Kluger compiled a sampling of state laws that passed constitutional muster under the “separate but equal” doctrine. All of these were on the books in 1951. For example:

Texas prohibited interracial boxing matches; Florida prohibited black and white students from using the same textbooks; a black and a white Arkansan were banned from walking together into a polling place; a white nurse in Alabama couldn’t treat a black patient; six states that used “chain gangs” as part of their penal systems prohibited a black and a white prisoner being chained together; 17 states plus the District of Columbia required racially separate public schools, and four more states permitted the practice on a local option basis. Bear in mind, this practice went well beyond the states of the old Confederacy — only 11 states seceded from the Union in 1861 — and beyond the 15 states in which slavery had been legal just before the Civil War.

Justice Harlan’s dissent coined the phrase “our Constitution is color blind,” although I suppose, given the majority ruling, he might have said “is supposed to be color blind.” In my Tuesday post, I may have been guilty of judging the Framers of the Constitution against an ahistorical standard. And perhaps the same is true of the seven martian justices in the Plessy decision. But the fact that Harlan, himself a native of Kentucky who had owned slaves before the Civil War, could make it to the Supreme Court and find the strength and courage to call out the bull that his brethren were slinging tells us that it was possible even in 1896 to see and say the truth.

Harlan’s dissent is well-known to law students and legal historians, and he himself is sometimes dubbed “the great dissenter” (he wrote some other dissents, but Plessy was his masterpiece), but he, like the all-but-forgotten author of the Equal Protection Clause, deserves to be more famous than he is.

When we resume our guided tour, the Equal Protection Clause will come back to earthly reality, with the Warren court’s heroic Brown decision. And eventually, “equal protection” will move beyond the racial thinking that gave it birth, toward a broader meaning of equality.