• The civil rights cases led to eighty years of de facto apartheid in the United States.

• The legitimation of racial discrimination came in 1898, when the Supreme Court, in Plessy v. Ferguson, 163 U.S. 537 (1896), upheld racially segregated railroad cars as “separate but equal” and therefore consistent with the Fourteenth Amendment.

• Only after World War II, after blacks and whites fought again side by side (though in separate units), did the country undertake a systematic effort to realize the aims that Justice Harlan thought were imperative in the 1880s.

Brown v. Board of Education

• The first major step came in 1954, when a unanimous court, under the leadership of Chief Justice Earl Warren, held, in Brown v. Board of Education.

• Brown v. Board of Education held that segregated schools were inherently unequal. The effort to translate this decision of the Supreme Court into actual practice lasted many more years, and in the end it would be difficult to say that we have achieved the goal of school integration that the Court then thought was desirable.

• The final overruling of the Civil Rights Cases occurred not in the Supreme Court but in Congress, which, under the urging of President Lyndon Johnson, passed the Civil Rights Act of 1964.

• The country finally prohibited racial discrimination in public facilities.

Clauses

• The foundation of the legislation was not section 5 of the Fourteenth Amendment but rather the Interstate Commerce Clause, Article I, section 8, clause 2, which authorizes Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

• The Commerce Clause was available to the Court in 1883, but it would not then have seemed plausible.

  • The Commerce Clause came into its own as a ground for congressional action in the late 1930s, when the Supreme Court groped for some basis to justify President Franklin Roosevelt’s New Deal legislation designed to manage and stimulate the economy, as well as regulate working conditions and protect the welfare of workers.

  • For a long period, the Commerce Clause appeared to be infinitely elastic. It would support any form of congressional action.

  • In recent years, however, a more conservative Supreme Court has taken a renewed interest in states’ rights and has held several statutes unconstitutional because they have exceeded Congress’s authority under the Commerce Clause.

• The use of the Fourteenth Amendment has, however, expanded exponentially.

• The Due Process Clause has become the repository of a vast jurisprudence for regulating state criminal justice. This process began in the 1930s, largely in response to Southern courts’ suppression of the rights of blacks.

• The primary question under the Equal Protection Clause was the protection of racial minorities, primarily but not exclusively the descendants of former slaves. It was not until the 1970s that the Supreme Court expanded the jurisprudence of equality to include the protection of women, children born out of wedlock, the mentally ill, and noncitizens.